Exhibit 10.1
EXECUTION COPY
U.S. $115,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of November 2, 2001
Among
XXXXXXX MARITIME CORPORATION
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITICORP USA, INC.
as Administrative Agent and Collateral Agent
and
XXXXXXX XXXXX BARNEY INC.
as Arranger
and
CITIBANK, N.A.
as Issuing Bank and Swing Line Bank
Table of Contents
Page
Article I DEFINITIONS AND ACCOUNTING TERMS....................................................................... 1
Section 1.01. Certain Defined Terms................................................................. 1
Section 1.02. Computation of Time Periods........................................................... 20
Section 1.03. Accounting Terms...................................................................... 20
Article II AMOUNTS AND TERMS OF THE ADVANCES..................................................................... 21
Section 2.01. The Advances. (a) Revolving Credit Advances.......................................... 21
Section 2.02. Making the Revolving Credit Advances.................................................. 21
Section 2.03. Fees ............................................................................. 24
Section 2.04. Termination or Reduction of the Commitments........................................... 24
Section 2.05. Repayment of Advances................................................................. 24
Section 2.06. Interest ............................................................................. 25
Section 2.07. Interest Rate Determination........................................................... 25
Section 2.08. Optional Conversion of Advances....................................................... 26
Section 2.09. Prepayments........................................................................... 26
Section 2.10. Increased Costs....................................................................... 27
Section 2.11. Illegality............................................................................ 28
Section 2.12. Payments and Computations............................................................. 28
Section 2.13. Taxes ............................................................................. 29
Section 2.14. Sharing of Payments, Etc.............................................................. 31
Section 2.15. Use of Proceeds....................................................................... 32
Section 2.16. Issuance of and Drawings and Reimbursement Under Letters of Credit.................... 32
Section 2.17. Increase in Commitments............................................................... 37
Article III CONDITIONS TO EFFECTIVENESS AND LENDING.............................................................. 39
Section 3.01. Conditions Precedent to Initial Extension of Credit................................... 39
Section 3.02. Conditions Precedent to Each Borrowing and Issuance, Etc.............................. 40
Article IV REPRESENTATIONS AND WARRANTIES........................................................................ 41
Section 4.01. Representations and Warranties........................................................ 41
Article V COVENANTS OF THE BORROWER.............................................................................. 46
Section 5.01. Affirmative Covenants................................................................. 46
Section 5.02. Negative Covenants.................................................................... 53
Section 5.03. Financial Covenants................................................................... 62
Article VI EVENTS OF DEFAULT..................................................................................... 62
Section 6.01. Events of Default..................................................................... 62
Section 6.02. Actions in Respect of the Letters of Credit upon Default.............................. 66
Article VII BORROWER GUARANTY.................................................................................... 67
Section 7.01. Guaranty.............................................................................. 67
Section 7.02. Guaranty Absolute..................................................................... 67
Section 7.03. Waivers and Acknowledgments........................................................... 68
Section 7.04. Subrogation........................................................................... 69
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Page
Section 7.05. Continuing Guaranty................................................................... 69
Article VIII THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE CO-AGENT..................................... 70
Section 8.01. Authorization and Action.............................................................. 70
Section 8.02. Agent's Reliance, Etc................................................................. 70
Section 8.03. CUSA and Affiliates................................................................... 70
Section 8.04. Lender Credit Decision................................................................ 71
Section 8.05. Indemnification....................................................................... 71
Section 8.06. Successor Agents...................................................................... 72
Article IX MISCELLANEOUS......................................................................................... 72
Section 9.01. Amendments............................................................................ 72
Section 9.02. Notices, Etc.......................................................................... 73
Section 9.03. No Waiver; Remedies................................................................... 73
Section 9.04. Costs and Expenses.................................................................... 73
Section 9.05. Right of Set-off...................................................................... 75
Section 9.06. Binding Effect........................................................................ 75
Section 9.07. Assignments and Participations........................................................ 75
Section 9.08. Release of Collateral................................................................. 78
Section 9.09. Certain Changes in GAAP............................................................... 79
Section 9.10. Confidentiality....................................................................... 79
Section 9.11. Governing Law......................................................................... 79
Section 9.12. Execution in Counterparts............................................................. 79
Section 9.13. Jurisdiction, Etc..................................................................... 79
Section 9.14. Waiver of Jury Trial.................................................................. 80
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Schedules
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Existing Letters of Credit
Schedule III - Existing Indebtedness; Guaranty Obligations; Liens
Schedule IV - Designated Account Parties
Schedule V - Ownership of the Borrower
Schedule VI - Disclosed Litigation
Schedule VII - Subsidiaries of the Borrower
Schedule VIII - Permitted Asset Dispositions
Schedule IX - Regulated Subsidiaries
Schedule X - Material Subsidiaries
Schedule XI - Eligible Vessels and Barges
Exhibits
Exhibit A - Form of Promissory Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Xxxxxxxxx, Poster & Xxxxxx, counsel to the
Loan Parties
Exhibit E - Form of Amended and Restated Subsdiary Guaranty
Exhibit F - Form of Cash Collateral Agreement
Exhibit G - Form of Ship Mortgage
Exhibit H - Form of Assignment of Insurances
Exhibit I - Form of Assignment of Freights and Hires
Exhibit J - Form of Borrowing Base Certificate
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT dated as of November 2,
2001 among XXXXXXX MARITIME CORPORATION, a Delaware corporation, as borrower
(the "Borrower"), the banks, financial institutions and other institutional
lenders (the "Initial Lenders") listed on the signature pages hereof, CITIBANK,
N.A. ("Citibank"), as issuing bank (the "Issuing Bank") and as swing line bank
(the "Swing Line Bank"), CITICORP USA, INC. ("CUSA"), as administrative agent
(together with any successor agent appointed pursuant to Article VIII, the
"Administrative Agent") for the Lender Parties (as hereinafter defined) and as
collateral agent (together with any successor collateral agent appointed
pursuant to Article VIII, the "Collateral Agent") and XXXXXXX XXXXX BARNEY INC.,
as arranger (the "Arranger").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Administrative Agent, the Collateral
Agent, the Arranger and certain banks, financial institutions and other
institutional lenders have entered into a credit agreement dated as of August
25, 2000 (the "Existing Credit Agreement").
(2) The Borrower has requested and the parties hereto have
agreed to amend and restate the Existing Credit Agreement as provided herein.
(3) The Borrower has requested that the Lenders (as defined
herein) lend to the Borrower up to $115,000,000 to refinance certain existing
debt incurred in connection with its acquisition of Marine Transport Corporation
("MTC"), to provide working capital for the Borrower and its Subsidiaries and,
from time to time, issue Letters of Credit for the benefit of the Borrower and
its Subsidiaries.
(4) Subject to the terms and conditions set forth herein, the
Lender Parties agree to lend such amounts and extend such credit on the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
Article I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
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"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent at its
office at Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000, Account
No. 00000000, ABA 000000000, Attention: Xxxxxx Xxxxx, Reference:
Xxxxxxx Maritime, or such other account as the Administrative Agent
shall specify in writing to the Lender Parties.
"Advance" means a Revolving Credit Advance, a Swing Line
Advance or a Letter of Credit Advance.
"Affiliate" means, with respect to any Person, (a) any Person
(other than a Guarantor) which, directly or indirectly, is in control
of, is controlled by, or is under common control with, such Person, or
(b) any Person who is a director or officer (i) of such Person, (ii) of
any Subsidiary of such Person or (iii) of any Person described in
clause (a) above. For purposes of this definition, the term "control"
(including the terms "controlling", "controlled by" and "under common
control with") of a Person shall mean the power, direct or indirect,
(i) to vote 10% or more of the securities or other interests having
ordinary voting power for the election of directors of such Person or
of Persons serving a similar function, or (ii) to direct or cause the
direction of the management and policies of such Person, whether by
contract or otherwise.
"Agent" means any of the Administrative Agent or the
Collateral Agent.
"Agreement" means this Credit Agreement, as amended from time
to time in accordance with the terms hereof.
"Amended and Restated Subsidiary Guaranty" has the meaning
specified in Section 3.01(a)(ii).
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance.
"Applicable Margin" means (i) for the period from the date
hereof until the date upon which Administrative Agent receives the
audited consolidated financial statements of the Borrower for the
Fiscal Year 2001, 1.50% per annum in the case of Eurodollar Rate
Advances, and 0.25% per annum in the case of Base Rate Advances and
(ii) thereafter, a percentage per annum determined by reference to the
ratio of Net Debt to EBITDA as set forth below:
Ratio of Net Debt to Base Rate Eurodollar Rate
EBITDA Advances Advances
Greater than or equal to 6.50 to 1 0.750% 2.000%
Greater than or equal to 6.00 to 1 0.500% 1.750%
Greater than or equal to 5.50 to 1 0.250% 1.500%
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Greater than or equal to 4.50 to 1 0.125% 1.375%
Less than 4.50 to 1 0.000% 1.250%
For the purposes of this clause (ii), the Applicable Margin for each
Base Rate Advance and each Eurodollar Rate Advance shall be determined
by reference to the ratio of Net Debt to EBITDA in effect from time to
time; provided, however, that (A) no change in the Applicable Margin
shall be effective until three Business Days after the date on which
the Administrative Agent receives the financial statements required to
be delivered pursuant to subsection 5.01(a)(i) or 5.01(a)(ii), as the
case may be, and a certificate of the Responsible Officer of the
Borrower demonstrating such ratio of Net Debt to EBITDA pursuant to
subsection 5.01(b)(ii), (B) the Applicable Margin shall be determined
as if the ratio of Net Debt to EBITDA were greater than or equal to
6.50 to 1 for so long as the Borrower has not submitted to the
Administrative Agent the information described in clause (A) of this
proviso as and when required under Section 5.01(a) or (b) and (C) no
decrease in the Applicable Margin on any date shall exceed 0.50%.
"Arranger" has the meaning specified in the recital of parties
to this Agreement.
"Asset Dispositions" has the meaning specified in Section
5.02(e).
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"Assignment of Insurances" means, with respect to any Eligible
Vessel and Barge, an assignment of insurances in substantially the form
of Exhibit H hereto, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with this Agreement.
"Assignment of Freights and Hires" means, with respect to any
Eligible Vessel and Barge, an assignment of freights and hires in
substantially the form of Exhibit I hereto, as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
this Agreement.
"Assuming Lender" has the meaning specified in Section
2.17(d).
"Assumption Agreement" has the meaning specified in Section
2.17(d)(ii).
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
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(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or,
if there is no nearest 1/16 of 1%, to the next higher 1/16 of
1%) of (i) 1% per annum, plus (ii) the rate obtained by
dividing (A) the latest three-week moving average of secondary
market morning offering rates in the United States for
three-month certificates of deposit of major United States
money market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the
next succeeding Business Day) for the three-week period ending
on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations
for such rates received by Citibank from three New York
certificate of deposit dealers of recognized standing selected
by Citibank, by (B) a percentage equal to 100% minus the
average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii)
the average during such three-week period of the annual
assessment rates estimated by Citibank for determining the
then current annual assessment payable by Citibank to the
Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means, as the context may require, (i) an
Advance that initially bears interest at a rate determined in reference
to the Base Rate as provided in Section 2.06(a)(i), or (ii) any portion
of the outstanding Advances bearing interest at a rate determined in
reference to the Base Rate as provided in Section 2.06(a)(i).
"Borrower Guaranteed Obligations" has the meaning set forth in
Section 7.01.
"Borrowing" means a Revolving Credit Borrowing or a Swing Line
Borrowing.
"Borrowing Base " means at any time an amount equal to the
most recently determined Ships Value multiplied by 0.80.
"Borrowing Base Availability" means at any time an amount
equal to the Borrowing Base less the sum of:
(a) the aggregate principal amount of all outstanding
Advances, and
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(b) the aggregate Available Amount of all Letters of
Credit then outstanding;
provided, that Borrowing Base Availability shall at no time exceed the
Revolving Credit Facility.
"Borrowing Base Certificate" means a certificate in
substantially the form of Exhibit J hereto. All calculations of
Borrowing Base Availability in connection with the preparation of the
Borrowing Base Certificate shall originally be made by the Borrower and
certified to the Collateral Agent, provided that the Collateral Agent
shall have the right to review and adjust, in the exercise of its
reasonable credit judgment, any such calculation (1) to reflect its
reasonable estimate of declines in value of any collateral described
therein, and (2) to the extent that such calculation is not in
accordance with this Agreement.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City or San
Francisco and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank
market.
"Capital Expenditure" means any expenditure (by way of the
acquisition of securities of a Person, the incurring of obligations
under a Financing Lease or otherwise) in respect of the purchase or
other acquisition of property or equipment, excluding any such asset
(i) acquired in connection with normal replacement and maintenance
programs properly charged to current operations or (ii) which at the
time of the purchase or other acquisition thereof is intended in good
faith by the Borrower to be subjected to a lease, other than a
Financing Lease, and in fact is subjected to such a lease within 12
months from the purchase or acquisition of such asset, pursuant to a
sale-leaseback transaction permitted under subsection 5.02(j).
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of capital
stock of a corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants or options
to purchase any of the foregoing.
"Cash Collateral Agreement" means a cash collateral agreement
in substantially the form of Exhibit F.
"Cash Equivalents" shall mean (a) securities with maturities
of one year or less from the date of acquisition issued or fully
guaranteed or insured by the United States Government or any agency
thereof, (b) certificates of deposit and eurodollar time deposits with
maturities of one year or less from the date of acquisition and
overnight bank deposits of any Lender and certificates of deposit with
maturities of one year or less from the date of acquisition and
overnight bank deposits of any other commercial bank having capital and
surplus in excess of $200,000,000, (c) commercial paper of any issuer
rated at least A-2 by Standard & Poor's Ratings Group or P-2 by Xxxxx'x
Investors Service, Inc., (d) additional money market investments with
maturities of one year or less from the date of acquisition rated at
least A-1 or AA by Standard & Poor's Ratings Group or P-1 or Aa by
Moody's
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Investors Service, Inc. and (e) tax-exempt debt obligations of any
State of the United States or of any county or other municipal
governmental subdivision of any State of the United States with
maturities of one year or less from the date of acquisition rated at
the highest investment grade rating by Standard & Poor's Ratings Group
or by Xxxxx'x Investors Service, Inc., or publicly traded or open-end
bond funds that invest exclusively in such tax-exempt debt obligations.
"Change in Control" means the failure of the Crowley Family to
have the power to vote or cause to be voted, directly or indirectly, in
the aggregate at least 51% of the voting stock of the Borrower.
"Citibank " has the meaning specified in the recital of
parties to this Agreement.
"Collateral" means the Eligible Vessels and Barges and all
other property of the Borrower and its Subsidiaries secured by, or
intended to be secured by, the Collateral Documents and all other
property that is or is intended to be subject to any Lien in favor of
the Collateral Agent for the benefit of the Secured Parties.
"Collateral Agent" has the meaning specified in the recital of
parties to this Agreement.
"Collateral Documents" means the Ship Mortgages, the
Assignments of Freights and Hires, the Assignments of Insurances and
any other agreement that creates or purports to create a Lien in favor
of the Collateral Agent for the benefit of the Secured Parties.
"Commitment" means, with respect to any Lender at any time,
the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Commitment" or, if such Lender has entered into one
or more Assignments and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section
9.07(d) as such Lender's "Commitment"; provided that each Lender's
Commitment may be reduced from time to time pursuant to Section 2.04.
"Commitment Date" has the meaning specified in Section
2.17(b).
"Commitment Fee Rate" means (i) for the period from the date
hereof until the date upon which Administrative Agent receives the
audited consolidated financial statements of the Borrower for the
Fiscal Year 2001, 0.30% per annum and (ii) thereafter, a percentage per
annum determined by reference to the ratio of Net Debt to EBITDA as set
forth below:
Ratio of Net Debt to EBITDA Commitment Fee Rate
Greater than or equal to 6.50 to 1 0.500%
Greater than or equal to 6.00 to 1 0.375%
Greater than or equal to 5.50 to 1 0.300%
Greater than or equal to 4.50 to 1 0.250%
Less than 4.50 to 1 0.200%
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For the purposes of this clause (ii), the Commitment Fee Rate shall be
determined by reference to the ratio of Net Debt to EBITDA in effect
from time to time; provided, however, that (A) no change in the
Commitment Fee Rate shall be effective until three Business Days after
the date on which the Administrative Agent receives the financial
statements required to be delivered pursuant to subsection 5.01(a)(i)
or 5.01(a)(ii), as the case may be, and a certificate of the
Responsible Officer of the Borrower demonstrating such ratio of Net
Debt to EBITDA pursuant to subsection 5.01(b)(ii), (B) the Commitment
Fee Rate shall be determined as if the ratio of Net Debt to EBITDA were
greater than or equal to 6.50 to 1 for so long as the Borrower has not
submitted to the Administrative Agent the information described in
clause (A) of this proviso as and when required under Section 5.01(a)
or (b) and (C) no decrease in the Commitment Fee Rate on any date shall
exceed 0.15%.
"Commitment Increase" has the meaning specified in Section
2.17(a).
"Confidential Information" means information that any Loan
Party furnishes to any Agent or any Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to such Agent or such Lender from a source other than the
Loan Parties.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.07 or 2.08.
"Crowley Family" means all of the following Persons: (i)
Xxxxxx X. Xxxxxxx, Xx., an individual residing as of the date hereof in
Oakland, California, together with all Persons who are now or hereafter
relatives of such Person; and (ii) all trusts, conservatorships and
estates of or for the benefit of the Persons described in clause (i) of
this defined term. (For purposes of this definition, "relative" means
any individual related by affinity or consanguinity within the fourth
degree as determined by the common law, or any individual in a step or
adoptive relationship within such fourth degree.)
"CUSA" has the meaning specified in the recital of parties to
this Agreement.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Account Parties" means the collective reference to
the Subsidiaries and Affiliates of the Borrower listed on Schedule IV
and any other Person designated by the Borrower as a Designated Account
Party by written notice from the Borrower to the Administrative Agent
and any Issuing Bank requested to issue a Letter of Credit for the
account of such Designated Account Party.
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"Disclosed Litigation" has the meaning specified in Section
4.01(f).
"Dollars" and the "$" sign each means lawful money of the
United States.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EBITDA" means the operating income plus the sum of (a)
depreciation expense and (b) amortization expense as reflected in the
"Consolidated Statement of Operations" of the Borrower prepared in
accordance with GAAP; provided that EBITDA shall be calculated on a
rolling basis for the four fiscal quarters most recently ended.
"Eligible Assignee" means (i) a Lender; (ii) a direct or
indirect wholly owned Subsidiary of any Lender or the controlling
corporation of such Lender; (iii) any commercial bank organized under
the laws of the United States, or any State thereof, and having
combined capital and surplus in excess of $1,000,000,000; (iv) any
commercial bank organized under the laws of any other country that is a
member of the Organization for Economic Cooperation and Development
("OECD") or has concluded special lending arrangements with the
International Monetary Fund associated with its General Arrangements to
Borrow, or a political subdivision of any such country, and having
combined capital and surplus in excess of $1,000,000,000, so long as
such bank is acting through a branch or agency located in the United
States, in the Cayman Islands or in the country in which it is
organized or another country that is described in this clause (iv); and
(v) any other Person approved by the Administrative Agent and the
Borrower, such approval not to be unreasonably withheld; provided,
however, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Eligible Vessels and Barges" means the tug boats and barges
listed on Schedule XI hereto, as such schedule may be amended from time
to time at the request of the Borrower and with the consent of the
Collateral Agent, provided that the Collateral Agent has at all times a
first priority and perfected lien on each such tug boat or barge.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to public health, public safety or
the environment, including, without limitation, (a) by any governmental
or regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or
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agency interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator of any Plan of a notice
of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by the Borrower or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined
in Section 4001(a)(2) of ERISA; (f) the conditions for the imposition
of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (h) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence
of any event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to (i)
10
the rate per annum (rounded upwards, if necessary, to the nearest 1/16
of 1%) at which deposits in U.S. dollars appear on page 3750 (or any
successor page thereto) of the Dow Xxxxx Telerate Screen two Business
Days before the first day of such Interest Period and for a term
comparable to such Interest Period, or (ii) if such rate does not so
appear on the Dow Xxxxx Telerate Screen on any date of determination,
the rate per annum (rounded upwards, if necessary, to the nearest 1/16
of 1%) at which deposits in U.S. dollars appear on the Reuters Screen
LIBO Page two Business Days before the first day of such Interest
Period and for a term comparable to such Interest Period, provided,
however, that if the Reuters Screen LIBO Page is being used to
determine the Eurodollar Rate at any date of determination and more
than one rate is specified thereon as the London interbank offered rate
for deposits in U.S. dollars, the applicable rate shall be the average
of all such rates (rounded upward, if necessary, to the nearest whole
multiple of 1/16 of 1% per annum), or (iii) if such rate does not so
appear on either the Dow Xxxxx Telerate Screen or Reuters Screen LIBO
Page on any date of determination, then, the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum) of the rates per
annum at which deposits in Dollars are offered by the principal office
of Citibank in London, England, to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first
day of such Interest Period in an amount substantially equal to
Citibank's Eurodollar Rate Advance comprising part of such Borrowing
and for a period equal to such Interest Period. In such circumstances,
the Eurodollar Rate for the Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing shall be determined by
the Administrative Agent on the basis of the applicable rates given to
and received by the Administrative Agent from Citibank two Business
Days prior to the first day of such Interest Period.
"Eurodollar Rate Advance" means, as the context may require,
(i) a Revolving Credit Advance that initially bears interest at a rate
determined in reference to the Eurodollar Rate as provided in Section
2.06(a)(ii), or (ii) any portion of the outstanding Revolving Credit
Advances bearing interest at a rate determined in reference to the
Eurodollar Rate as provided in Section 2.06(a)(ii).
"Eurodollar Rate Tranche" is the collective reference to
Eurodollar Rate Advances the Interest Periods with respect to all of
which begin on the same date and end on the same later date.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements to this Agreement.
"Existing Letters of Credit" has the meaning specified in
Section 2.16(j).
"Facility" means the Revolving Credit Facility, the Swing Line
Facility or the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by
11
Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding 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 of the quotations for such day
on such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financing Lease" means any lease of property, real or
personal, the obligations of the lessee in respect of which are
required in accordance with GAAP to be capitalized on a balance sheet
of the lessee.
"Foreign Subsidiary" means a Subsidiary which is organized
under the laws of a jurisdiction other than the United States or any
State thereof or the District of Columbia.
"GAAP" has the meaning specified in Section 1.03.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Group of Advances" means at any time a group of Advances
consisting of (i) all Base Rate Advances outstanding at such time or
(ii) Eurodollar Advances outstanding at such time constituting a single
Eurodollar Rate Tranche at such time.
"Guarantor" means each Material Subsidiary, other than any
Regulated Subsidiary, and any Subsidiary that has an ownership interest
in any of the Eligible Vessels and Barges, in each case as of the
Restatement Effective Date, and thereafter each Subsidiary of the
Borrower that becomes a party to the Amended and Restated Subsdiary
Guaranty pursuant to the terms hereof and thereof.
"Guaranty Obligation" means, as to any Person (the
"guaranteeing person"), (a) any obligation of (i) the guaranteeing
person or (ii) another Person (including, without limitation, any bank
under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case if such obligation is guaranteeing
or in effect guaranteeing any Indebtedness, or leases, dividends or
other obligations which are substitutes for or equivalents of
Indebtedness (the "primary obligations") of any other third Person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing
person, whether or not contingent, (A) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (B) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (C) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (D)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof and (b) all obligations of
such Person in respect of mandatory contributions to capital (including
without limitation as a result of calls for capital or otherwise) of
any Joint Venture of such Person; provided, however, that the term
Guaranty
12
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Guaranty Obligation of any guaranteeing person shall be deemed to be
the lower of (x) an amount equal to the stated or determinable amount
of the primary obligation in respect of which such Guaranty Obligation
is made and (y) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such
Guaranty Obligation, unless such primary obligation and the maximum
amount for which such guaranteeing person may be liable are not stated
or determinable, in which case the amount of such Guaranty Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good
faith.
"Hamburg Sud" means Hamburg-Sudamerikanische
Dampfschiffahrtsgesellschaft Xxxxxx & Amsinck.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Increase Date" has the meaning specified in Section 2.17(a)
"Increasing Lender" has the meaning specified in Section
2.17(d).
"Indebtedness" of any Person at any date means, without
duplication, (a) all indebtedness of such Person for borrowed money
(other than current trade liabilities, customer advances and customer
deposits incurred in the ordinary course of business and payable in
accordance with customary practices) or which is evidenced by a note,
bond, debenture or similar instrument, (b) the portion of the
obligations of such Person under Financing Leases included as
indebtedness on the balance sheet of such Person in accordance with
GAAP, (c) the portion of the obligations of such Person in respect of
acceptances issued or created for the account of such Person included
as indebtedness on the balance sheet of such Person in accordance with
GAAP, (d) all reimbursement or counter indemnity obligations of such
Person in respect of amounts already paid under letters of credit,
guarantees or similar instruments backing another Person's obligations
of the types described in the foregoing clauses (a), (b) and (c), and
(e) the aggregate Non-Qualified Partnership Liabilities of such Person.
"Initial Extension of Credit" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
hereunder (including the assumption of the Existing Letters of Credit
pursuant to Section 2.16(j)).
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
13
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Eurodollar Rate Tranche, the period
commencing on the date of such Eurodollar Rate Advance or the date of
the Conversion of any Base Rate Advance into such Eurodollar Rate
Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three or six months, as
the Borrower may, upon notice received by the Administrative Agent not
later than 1:00 P.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(i) the Borrower may not select any Interest Period
that ends after the Termination Date;
(ii) Eurodollar Rate Advances comprising part of the
same Borrowing shall initially belong to the same Eurodollar
Rate Tranche;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day; provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" has the meaning specified in Section 5.02(h).
"Issuing Bank" means Citibank and any other Lender or
Affiliate of a Lender approved by the Administrative Agent, the
Borrower and such other Lender or Affiliate of such other Lender.
"Joint Venture" has the meaning specified in Section 5.02(m).
"L/C Cash Collateral Account" has the meaning set forth in
Section 2.16.
"L/C Related Documents" has the meaning specified in Section
2.16.
"Lender Parties" means the Lenders, the Issuing Bank and the
Swing Line Bank.
14
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Sections 9.07 and 2.17.
"Letter of Credit" has the meaning specified in Section 2.16.
"Letter of Credit Advance" means an advance made by any
Issuing Bank or any Lender pursuant to Section 2.16(d).
"Letter of Credit Agreement" has the meaning specified in
Section 2.16.
"Letter of Credit Commitment" means, with respect to any
Issuing Bank at any time, the amount set forth opposite such Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if such Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for such Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
9.07(c) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.04.
"Letter of Credit Facility" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Letter of Credit
Commitments of the Issuing Banks at such time and (b) $50,000,000, in
each case as such amount may be reduced at or prior to such time
pursuant to Section 2.04.
"Letter of Credit Fee Rate" means the Applicable Margin for
Eurodollar Rate Advances as in effect from time to time.
"Letter of Credit Sub-Limit" means, at any time, the lesser of
(a) the Letter of Credit Facility at such time and (b) an amount equal
to $50,000,000 less the sum of (i) the aggregate principal amount of
the Letter of Credit Advances outstanding at such time and (ii) the
aggregate Available Amount of all Letters of Credit outstanding at such
time.
"LIBOR-Only Lender" means any Lender that is organized under
the laws of a jurisdiction located outside the United States that has
notified the Administrative Agent and the Borrower in writing, on or
prior to becoming a Lender, that it is unable to provide same-day
funding or to receive same-day repayments in connection with Base Rate
Advances; provided, however, that this definition shall not include any
Lender that subsequently notifies the Administrative Agent and the
Borrower in writing that it is no longer a LIBOR-Only Lender from the
time that such notice is received by the Administrative Agent and the
Borrower.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumberence
to real property.
"Loan Documents" means this Agreement, the Notes, the Amended
and Restated Subsdiary Guaranty, the Collateral Documents, each Cash
Collateral Agreement and each Letter of Credit Agreement.
15
"Loan Parties" means the Borrower and each Guarantor.
"Majority Lenders" means at any time Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time and (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, or, if no such principal amount and no Letters of Credit are
outstanding at such time, Lenders holding at least a majority in
interest of the Revolving Credit Facility at such time.
"Material Adverse Effect" means a material adverse effect on
(a) the business, operations, condition (financial or otherwise),
performance, properties or prospects of any Loan Party and its
Restricted Subsidiaries taken as a whole, (b) the ability of any Loan
Party and its Restricted Subsidiaries taken as a whole to perform the
obligations under the Loan Documents or (c) the rights and remedies of
any Agent or any Lender under any Loan Document.
"Material Subsidiary" means (i) the Subsidiaries set forth on
Schedule X and (ii) each other Subsidiary of the Borrower having (x)
Net Assets greater than $12,000,000 at the end of any fiscal quarter of
the Borrower or (y) Net Revenue greater than $12,000,000 for the most
recently ended four consecutive fiscal quarters of the Borrower, in
each case as determined commencing with the fiscal quarter ending June
30, 2001.
"MTC" has the meaning specified in the Preliminary Statements
to this Agreement.
"MTC Credit Agreement" has the meaning specified in Section
5.02(k).
"MTC Purchase Date" has the meaning specified in Section
5.02(a)(viii).
"MTL" has the meaning specified in Section 5.02(a)(ix).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and at least one
Person other than the Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4064 or 4069 of ERISA in the event
such plan has been or were to be terminated.
"Net Assets" means, as to the Borrower or any Subsidiary of
the Borrower at any time, the excess of (i) the total assets of such
Person at such time over (ii) all net intercompany receivables owing to
such Person at such time, in each case determined in accordance with
GAAP.
16
"Net Debt" means, as to the Borrower and its Consolidated
Subsidiaries at any time, the aggregate sum of (i) all Indebtedness (as
reflected on the consolidated balance sheet of the Borrower), (ii) 300%
of the amount equal to (A) the operating lease commitments shown in the
footnotes to the most recent audited financial statements delivered to
the Lender Parties pursuant to Section 5.01(a)(i) to be contractually
due in the subsequent fiscal year minus (B) that portion for which (x)
Hamburg Sud is contractually obligated to pay pursuant to the Purchase
Agreement and (y) in the reasonable discretion of the Administrative
Agent, other entities are contractually obligated, for a period of no
less than 12 months, for the sublease of the assets that are the
subject of such operating lease commitments and (iii) Guaranty
Obligations and contingent liabilities, minus 85% of cash and Cash
Equivalents.
"Net Revenue" means, as to the Borrower or any Subsidiary of
the Borrower for any period of determination, the excess of (i) the
total revenue of such Person for such period over (ii) all intercompany
revenue of such Person for such period, in each case determined in
accordance with GAAP.
"Non-Qualified Partnership" means a Joint Venture, partnership
or other entity in which the Borrower or any Restricted Subsidiary is a
general partner or has general liability for the obligations of such
entity, other than any Restricted Subsidiary which is a corporation and
substantially all of whose assets consist of its interest in such Joint
Venture, partnership or other entity.
"Non-Qualified Partnership Liability" of a Person at any time
means, with respect to a Non-Qualified Partnership in which such Person
has an interest, an amount equal to the amount by which (a) the
aggregate amount of the total liabilities of such Non-Qualified
Partnership at such time minus (without duplication) (i) the aggregate
amount of such liabilities that are expressly agreed by the holders of
such liabilities to be non-recourse to such Non-Qualified Partnership
(the "Partnership Non-Recourse Liabilities") and (ii) the aggregate
amount of such liabilities that are expressly agreed by the holders of
such liabilities to be non-recourse to such Person (the "Partner
Non-Recourse Liabilities") exceeds (b) 85% of the aggregate amount of
the total tangible assets of such Non-Qualified Partnership at such
time minus (without duplication) (x) the aggregate amount of the
Partnership Non-Recourse Liabilities at such time and (y) the aggregate
amount of the Partner Non-Recourse Liabilities at such time, as
determined in accordance with GAAP.
"Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.16.
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
17
"Obligations" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay
principal, interest (including interest accruing on or after the filing
of any petition in bankruptcy or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or
not a claim for post-filing or post-petition interest is allowed in
such proceeding), Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
"Other Taxes" has the meaning set forth in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity of whatever nature, or a Governmental Authority.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pro Rata Share" of any amount means, with respect to any
Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Commitment at such
time and the denominator of which is the Revolving Credit Facility at
such time, provided that for purposes of determining each of the
foregoing numerator and denominator, each Lender's Commitment shall be
equal to the amount determined pursuant to clause (i) of the definition
of Commitment in this Section 1.01.
"Purchase Agreement" means the Sale and Purchase Agreement
between Crowley American Transport, Inc. and Hamburg-Sudamerikanische
Dampfschiffahrtsgesellschaft Xxxxxx & Amsinck dated as of October 18,
1999.
"Register" has the meaning specified in Section 9.07(d).
"Regulated Subsidiary" means Beacon Insurance Company Limited
and each other Subsidiary that is prohibited by any applicable law,
rule or regulation from entering into and performing obligations of a
guarantor under an Amended and Restated Subsidiary Guaranty, each as
listed on Schedule IX hereto as such schedule may be amended from time
to time to include any future Subsidiary of the Borrower subject to
such prohibition.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System.
18
"Reimbursement Obligation" means the obligation of the
Borrower or any Designated Account Party to reimburse any Issuing Bank
for amounts drawn under the Letters of Credit and other amounts
reimbursable by the Borrower or such Designated Account Party
thereunder or under any Letter of Credit Agreement.
"Required Lenders" means at any time Lenders owed or holding
greater than 50% of the sum of (a) the aggregate principal amount of
the Advances outstanding at such time and (b) the aggregate Available
Amount of all Letters of Credit outstanding at such time, or, if no
such principal amount and no Letters of Credit are outstanding at such
time, Lenders holding greater than 50% of the Revolving Credit Facility
at such time. For purposes of this definition, the aggregate principal
amount of Swing Line Advances owing to the Swing Line Bank and of
Letter of Credit Advances owing to the Issuing Bank and the Available
Amount of each Letter of Credit shall be considered to be owed to
Lenders ratably in accordance with their Commitments.
"Requirement of Law" means as to any Person, the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" means the chief executive officer of the
Borrower, the president of the Borrower, the general counsel of the
Borrower, any senior vice president of the Borrower or any corporate
vice president of the Borrower having familiarity with the matters in
respect of which such corporate vice president is acting as a
Responsible Officer under this Agreement, or, with respect to financial
matters, the chief financial officer of the Borrower, the treasurer of
the Borrower or the chief accounting officer of the Borrower.
"Restatement Effective Date" means the date of the Initial
Extension of Credit hereunder.
"Restricted Subsidiary" means each Subsidiary of the Borrower
or of any Subsidiary of the Borrower, other than any Joint Venture.
"Revolving Credit Advance" means an advance made by any Lender
pursuant to Section 2.02(a).
"Revolving Credit Borrowing" means a borrowing consisting of
Revolving Credit Advances of the same Type made on the same day by the
Lenders, and in the case of Eurodollar Advances, having the same
Interest Period.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Lenders' Commitments at such time.
"Secured Parties " means the Agents and the Lender Parties.
"Shiloh" has the meaning specified in Section 5.02(a)(viii).
19
"Ship Mortgage" means, with respect to any Eligible Vessel and
Barge, a first preferred ship mortgage in substantially the form of
Exhibit G hereto, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with this Agreement.
"Ships Value" means the aggregate value of all of the Eligible
Vessels and Barges (except for any Eligible Vessel or Barge which has
been disposed of in accordance with subsection 5.01(l)) as determined
in accordance with the procedures for determining the fair market value
of each vessel and barge as set forth in each Ship Mortgage, except
that the value of each Eligible Vessel and Barge that suffers an Event
of Loss (as defined in the applicable Ship Mortgage) shall (i) in the
case any Default shall have occurred and be continuing, or shall result
from such Event of Loss, be zero or (ii) in the case no Default shall
have occurred and be continuing, or shall result from such Event of
Loss, become zero upon the earliest of (x) the date that is 90 days
after the date of such Event of Loss and (y) the date on which the
insurance proceeds of such Event of Loss are paid to the Mortgagee (as
defined in the Ship Mortgages) in accordance with Section 1.15 of the
applicable Ship Mortgage.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any ERISA Affiliate and no Person other
than the Borrower and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been
or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate or other
entity of which (or in which) more than 50% of (a) the issued and
outstanding capital stock or other ownership interests having ordinary
voting power to elect a majority of the board of directors or a
majority of other equivalent managers of such corporation, partnership
or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person (irrespective of whether at the
time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), or (b) the interest in the capital or profits of such
limited liability company, partnership or joint venture, or (c) the
beneficial interest in such trust or estate, is at the time directly or
indirectly owned or controlled by such Person, by such Person and one
or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Swing Line Advance" means an Advance by the Swing Line Bank
pursuant to Section 2.01(a) or (b) any Lender pursuant to Section
2.02(b).
"Swing Line Bank" has the meaning specified in the recitals to
this Agreement.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance pursuant to Section 2.01(b) or the Lenders pursuant to
Section 2.02(b).
20
"Swing Line Facility" has the meaning specified in Section
2.01(b).
"Taxes" has the meaning set forth in Section 2.13(a).
"Termination Date" means the earliest of (i) the date of
termination in whole of the Commitments pursuant to Section 2.04 or
6.01 and (ii) October 31, 2004.
"Title XI Financing Agreements" means any and all documents
and agreements executed by the Borrower or any Title XI Subsidiary
evidencing obligations incurred in connection with any financing
guaranteed under Title XI of the Merchant Marine Act of 1936, as
amended.
"Title XI Subsidiaries" means the collective reference to
Xxxxxxx Liner Services, Inc., Vessel Management Services, Inc. and
Xxxxxxx Marine Services, Inc.
"Type" refers to each of the two categories of Advances,
namely Advances bearing interest at the Base Rate and Advances bearing
interest at the Eurodollar Rate.
"Unused Commitment" means, with respect to any Lender at any
time, (a) such Lender's Commitment at such time minus (b) the sum of
(i) the aggregate principal amount of all Advances made by such Lender
and outstanding at such time, plus (ii) such Lender's Pro Rata Share of
each of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances outstanding at such time other than any such
Letter of Credit Advance which, at or prior to such time, has been
assigned in part to such Lender pursuant to Section 2.16(d) and (C) the
aggregate principal amount of all Swing Line Advances made by the Swing
Link Bank pursuant to Section 2.01(b) and outstanding at such time.
"Vessel or Barge Disposition" has the meaning specified in
subsection 5.02(e)(vi).
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA.
"Wholly Owned Subsidiary" means any Restricted Subsidiary of
the Borrower, all of the outstanding equity interests in which are
owned, directly or indirectly, by the Borrower.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
Section 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
Section 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles from time to time in effect in the United States
("GAAP").
21
Article II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. The Advances. (a) Revolving Credit Advances.
Each Lender severally agrees, on the terms and conditions hereinafter set forth,
to make advances (each a "Revolving Credit Advance") to the Borrower from time
to time on any Business Day during the period from the Restatement Effective
Date until the Termination Date; provided that with respect to any requested
Revolving Credit Advance the amount of such Revolving Credit Advance does not
exceed either such Lender's Unused Commitment at such time or such Lender's Pro
Rata Share of the Borrowing Base Availability. Each Borrowing (other than any
Borrowing comprised of Letter of Credit Advances deemed to be converted to
Revolving Credit Advances pursuant to Section 2.16(f)(i)) shall be in an
aggregate amount of $3,000,000 or an integral multiple of $100,000 in excess
thereof (other than a Borrowing the proceeds of which shall be used solely to
repay or prepay in full outstanding Swing Line Advances or outstanding Letter of
Credit Advances). Each Borrowing shall consist of Revolving Credit Advances of
the same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Unused Commitment,
the Borrower may borrow under this Section 2.01(a), prepay pursuant to Section
2.09 and reborrow under this Section 2.01(a).
(b) The Swing Line Advances. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank may, if in its sole discretion
it elects to do so, make, on the terms and conditions hereinafter set forth,
Swing Line Advances to the Borrower from time to time on any Business Day during
the period from the date hereof until the Termination Date (i) in an aggregate
principal amount not to exceed at any time outstanding $10,000,000 (the "Swing
Line Facility") and (ii) in an amount for each such Swing Line Borrowing not to
exceed the Unused Commitment of the Swing Line Bank at such time. No Swing Line
Advance shall be used for the purpose of funding the payment of principal of any
other Swing Line Advance. Each Swing Line Borrowing shall be in an amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof and shall be
made as a Base Rate Advance. Within the limits of the Swing Line Facility and
within the limits referred to in clause (ii) above, so long as the Swing Line
Bank, in its sole discretion, elects to make Swing Line Advances, the Borrower
may borrow under this Section 2.01(b), repay pursuant to Section 2.05(b) or
prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(b).
Section 2.02. Making the Revolving Credit Advances. (a) Except
as otherwise provided in Section 2.16(f)(i) in respect of Letter of Credit
Advances deemed converted to Revolving Credit Advances, each Borrowing shall be
made on notice, given not later than 1:00 P.M. (New York City time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telecopier. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by telephone, confirmed immediately in writing, or by
telecopier, in substantially the form of Exhibit B hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Type of Revolving Credit Advances
comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such
22
Advance. Each Lender shall, before 3:00 P.M. (New York City time) on the date of
such Borrowing, make available for the account of its Applicable Lending Office
to the Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower at the Administrative Agent's address referred to in
Section 9.02; provided, however, that the Administrative Agent shall first make
a portion of such funds equal to the aggregate principal amount of any Swing
Line Advances and Letter of Credit Advances made by the Swing Line Bank or any
Issuing Bank, as the case may be, or, in either case, by any other Lender and
outstanding on the date of such Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank or such Issuing
Bank, as the case may be, and, in either case, such other Lenders for repayment
of such Swing Line Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than 3:00 P.M. (New York City time) on the date of the proposed Swing
Line Borrowing, by the Borrower to the Swing Line Bank and the Administrative
Agent. Each such notice of a Swing Line Borrowing (a "Notice of Swing Line
Borrowing") shall be by telephone, confirmed immediately in writing or
telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the tenth day after the requested date of such
Borrowing). If, in its sole discretion, it elects to make the requested Swing
Line Advance, the Swing Line Bank will make the amount thereof available to the
Administrative Agent at the Administrative Agent's Account, in same day funds.
After the Administrative Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the Administrative Agent
will make such funds available to the Borrower by crediting the Borrower's
Account. Upon written demand by the Swing Line Bank, with a copy of such demand
to the Administrative Agent, each other Lender shall purchase from the Swing
Line Bank, and the Swing Line Bank shall sell and assign to each such other
Lender, such other Lender's Pro Rata Share of such outstanding Swing Line
Advance as of the date of such demand, by making available for the account of
its Applicable Lending Office to the Administrative Agent for the account of the
Swing Line Bank, by deposit to the Administrative Agent's Account, in same day
funds, an amount equal to the portion of the outstanding principal amount of
such Swing Line Advance to be purchased by such Lender. The Borrower hereby
agrees to each such sale and assignment. Each Lender agrees to purchase its Pro
Rata Share of an outstanding Swing Line Advance on (i) if such Lender is not a
LIBOR-Only Lender, the Business Day on which demand therefor is made by the
Swing Line Bank, provided that notice of such demand is given not later than
11:00 A.M. (New York City time) on such Business Day or (ii) if such Lender is a
LIBOR-Only Lender or, as to each other Lender if notice of such demand is given
after 11:00 A.M. (New York City time) on any Business Day, the first Business
Day next succeeding the Business Day on which notice of such demand is given.
Upon any such assignment by the Swing Line Bank to any other Lender of a portion
of a Swing Line Advance, the Swing Line Bank represents and warrants to such
other Lender that the Swing Line Bank is the legal and beneficial owner of such
interest being assigned by it, but makes no other representation or warranty and
assumes no responsibility with respect to such Swing Line Advance, the Loan
Documents or any Loan Party. If and to the extent that any Lender shall not have
so made the amount of such Swing Line Advance available to the Administrative
Agent, such Lender agrees to pay to the Administrative Agent forthwith on demand
such amount together with interest thereon, for each day from the date of demand
by the Swing Line Bank
23
until the date such amount is paid to the Administrative Agent, at the Federal
Funds Rate. If such Lender shall pay to the Administrative Agent such amount for
the account of the Swing Line Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Swing Line Advance made by such Lender
on such Business Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by the Swing Line Bank shall be
reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) so long as any Lender is a LIBOR-Only Lender, the Borrower
shall not be permitted to request Base Rate Advances and if the obligation of
the Lenders to make Eurodollar Rate Advances shall have been suspended pursuant
to Section 2.07 or 2.11, no additional Borrowings shall be permitted and (ii)
the Eurodollar Rate Advances may not be outstanding as part of more than six
separate Eurodollar Rate Tranches.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as part of
such Borrowing when such Advance, as a result of such failure, is not made on
such date.
(e) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at the time to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Advance as part of such
Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
24
Section 2.03. Fees. (a) Commitment Fee. The Borrower shall pay
to the Administrative Agent for the account of each Lender a commitment fee on
the average daily Unused Commitment of such Lender plus such Lender's Pro Rata
Share of the average daily outstanding Swing Line Advances during the quarter
for which such commitment fee is payable, from the Restatement Effective Date in
the case of each Initial Lender and from the later of such date and the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at a
rate per annum equal to the Commitment Fee Rate. Such commitment fee shall in
all cases be payable in arrears quarterly on the last Business Day of each
March, June, September and December, commencing on December 31, 2001, and on the
Termination Date.
(b) Upfront Fees. The Borrower shall pay to the Administrative
Agent for the account of each Initial Lender on the Restatement Effective Date
an upfront fee on the Commitment of such Initial Lender in an amount equal to
0.25% of such Initial Lender's Commitment.
(c) Agents' Fees. The Borrower shall pay to the Administrative
Agent for its account such fees as may from time to time be agreed between the
Borrower and such agent.
Section 2.04. Termination or Reduction of the Commitments. (a)
The Borrower shall have the right, upon at least three Business Days' notice to
the Administrative Agent, to terminate in whole or reduce ratably in part the
Unused Commitments or the unused portion of the Letter of Credit Commitments,
provided that each partial reduction of the Revolving Credit Facility or the
Letter of Credit Facility (i) shall be in the aggregate amount of $5,000,000 or
an integral multiple of $1,000,000 in excess thereof and (ii) shall be made
ratably among the Lenders or the Issuing Banks, as the case may be, in
accordance with their Commitments with respect to the Revolving Credit Facility
or their Letter of Credit Commitment with respect to the Letter of Credit
Facility, as the case may be.
(b) The Letter of Credit Facility shall be permanently reduced
from time to time on the date of each reduction in the Revolving Credit Facility
by the amount, if any, by which the amount of the Letter of Credit Facility
exceeds the Revolving Credit Facility after giving effect to such reduction of
the Revolving Credit Facility.
(c) The Swing Line Facility shall be permanently reduced from
time to time on the date of each reduction in the Revolving Credit Facility by
the amount, if any, by which the amount of the Swing Line Facility exceeds the
Revolving Credit Facility after giving effect to such reduction of the Revolving
Credit Facility.
Section 2.05. Repayment of Advances. (a) Revolving Credit
Advances. The Borrower shall repay to the Administrative Agent for the ratable
account of the Lenders on the Termination Date the aggregate principal amount of
the Revolving Credit Advances then outstanding.
(b) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Lender that has made a Swing Line Advance the outstanding principal amount of
each Swing Line Advance made by each of them, together with interest accrued
thereon, on the earlier of the maturity date specified in the
25
applicable Notice of Swing Line Borrowing (which maturity shall be no later than
the tenth day after the requested date of such Borrowing) and the Termination
Date.
Section 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date such Advance is made until such principal amount shall be
paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, at a rate per annum equal at all times to the sum
of (x) the Base Rate in effect from time to time plus (y) the
Applicable Margin in effect from time to time, payable in arrears
quarterly on the last Business Day of each March, June, September and
December during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, at a rate per annum at all times
during each Interest Period for the Eurodollar Rate Tranche of such
Advance equal to the sum of (x) the Eurodollar Rate for such Interest
Period for such Eurodollar Rate Tranche plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date each Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on (i) the
unpaid principal amount of each Advance owing to each Lender, payable in arrears
on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on such Advance pursuant to clause (a)(i) or (a)(ii) above, as the case may be,
and (ii) to the fullest extent permitted by law, the amount of any interest, fee
or other amount payable hereunder that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be paid
on Base Rate Advances pursuant to clause (a)(i) above.
Section 2.07. Interest Rate Determination. (a) If, with
respect to any Eurodollar Rate Advances, the Required Lenders notify the
Administrative Agent that the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance, and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist.
(b) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest
26
Period" in Section 1.01, the Administrative Agent will forthwith so notify the
Borrower and the Lenders and such Advances will automatically, on the last day
of the then existing Interest Period therefor, Convert into Base Rate Advances.
(c) Upon the occurrence and during the continuance of any
Event of Default under Section 6.01(a) or Section 6.01(f), (i) each Eurodollar
Rate Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
Section 2.08. Optional Conversion of Advances. The Advances
included in each Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Borrowing, or in the case
of Letter of Credit Advances deemed to be converted to Revolving Credit Advances
pursuant to Section 2.16(f)(i), initially at the Base Rate. Thereafter, the
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 1:00 P.M. (New York City time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions of Sections
2.07 and 2.11, Convert all or a portion of Advances of one Type comprising the
same Group of Advances into Advances of the other Type; provided, however, that
any Conversion of Eurodollar Rate Advances into Base Rate Advances pursuant to
this Section 2.08 shall not be permitted if any Lender is a LIBOR-Only Lender at
such time and, if permitted, shall be made only on the last day of an Interest
Period for such Eurodollar Rate Advances, any Conversion of Base Rate Advances
into Eurodollar Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.01(b) and no Conversion of any Advances shall
result in more separate Eurodollar Rate Tranches than permitted under Section
2.02(c); and provided further that with respect to the Conversion of a portion
of Advances comprising part of the same Group, such portion is allocated ratably
among the Advances comprising such Group and each resulting Eurodollar Rate
Tranche is in an aggregate amount of $3,000,000 or an integral multiple of
$100,000 in excess thereof. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Advances to be Converted, (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the initial Interest Period for the Eurodollar Rate
Tranche to be comprised of such Advances and (iv) the Group of Advances (or
portion thereof) to which such notice applies. Each notice of Conversion shall
be irrevocable and binding on the Borrower.
Section 2.09. Prepayments. (a) Optional. The Borrower may,
upon at least (i) three Business Days' notice in the case of (A) Eurodollar Rate
Advances and (B) any Advance, if any Lender making such Advance is a LIBOR-Only
Lender at such time, and (ii) one Business Day's notice in the case of any other
Advance, in each case, to the Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amount of the Advances in whole
or ratably in part, and in the case of Eurodollar Advances together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $3,000,000 or an integral multiple of $100,000 in excess
thereof and (y) in the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 9.04(c).
27
(b) Mandatory. The Borrower shall (i) on each Business Day,
prepay an aggregate principal amount of the Advances equal to the amount by
which (A) the sum of the aggregate principal amount of (x) the Advances and (y)
the aggregate Available Amount of all Letters of Credit then outstanding exceeds
(B) the Revolving Credit Facility on such Business Day, (ii) on each Business
Day, prepay an aggregate principal amount of the Advances equal to the amount by
which (A) the sum of the aggregate principal amount of (x) the Advances and (y)
the aggregate Available Amount of all Letters of Credit then outstanding exceeds
(B) the Borrowing Base on such Business Day and (iii) so long as any Lender is a
LIBOR-Only Lender, on the date that is 90 days following receipt by the Borrower
of written notice from the Administrative Agent of the occurrence of an event
giving rise to the suspension of the obligation of the Lenders to make
Eurodollar Rate Advances pursuant to Section 2.07 or 2.11, prepay all
outstanding Advances, together with all accrued interest and fees. Prepayments
of the Revolving Credit Facility made pursuant to this subsection (b) shall be
first applied to prepay Letter of Credit Advances then outstanding until such
Advances are paid in full, second applied to prepay Swing Line Advances then
outstanding until such Advances are paid in full, and third applied to prepay
Revolving Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full, in each case, together with the
respective interest accrued thereon. If, after giving effect to the foregoing
payments or if no Advances are at such time outstanding, the aggregate Available
Amount of all Letters of Credit then outstanding exceeds the Letter of Credit
Facility, then the Borrower shall cash collateralize the Letters of Credit in an
aggregate amount equal to such excess in accordance with arrangements reasonably
satisfactory to the Administrative Agent.
Section 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
which compliance was not required as of the date hereof, there shall be any
increase in the cost to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or
maintaining Letters of Credit or of agreeing to make or of making Letter of
Credit Advances (excluding for purposes of this Section 2.10 any such increased
costs resulting from (i) Taxes or Other Taxes (as to which Section 2.13 shall
govern) and (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the Borrower shall
from time to time, within 30 days after demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender additional amounts sufficient to compensate such
Lender for such increased cost; provided, however, that before making any such
demand, each Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.
A certificate as to the amount of such increased cost, submitted to the Borrower
and the Administrative Agent by such Lender, shall be conclusive and binding for
all purposes, absent manifest error.
(b) If any Lender determines (taking into account such
Lender's, or its controlling corporation's, policies with respect to capital
adequacy) that compliance, which compliance was not required as of the date
hereof, with any law or regulation or any guideline or
28
request from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of capital required
or expected to be maintained by such Lender or any corporation controlling such
Lender and that the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and other commitments of
such type or the issuance or maintenance of Letters of Credit (or similar
contingent obligations), then, within 30 days after demand by such Lender (with
a copy of such demand to the Administrative Agent), the Borrower shall pay to
the Administrative Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to compensate such
Lender or such corporation in the light of such circumstances, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commitment to lend hereunder or to the
issuance or maintenance of any Letters of Credit. A certificate as to such
amounts submitted to the Borrower and the Administrative Agent by such Lender
shall be conclusive and binding for all purposes, absent manifest error.
Section 2.11. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such lender to the Borrower
through the Administrative Agent (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
Section 2.12. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes not later than 1:00 P.M.
(New York City time) on the day when due in Dollars to the Administrative Agent
at the Administrative Agent's Account in same day funds. The Administrative
Agent will promptly thereafter cause to be distributed like funds relating to
the payment of principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.10, 2.13 or 9.04(c)) to the Lenders for
the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such Lender
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(d), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall make
all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
29
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due. Each Lender agrees
promptly to notify the Borrower after any such charge against the Borrower's
accounts, provided that the failure to give such notice shall not affect the
validity of such charge.
(c) All computations of interest based on the rate of interest
set forth in clause (a) of the definition of "Base Rate" shall be made by the
Administrative Agent on the basis of a year of 365 or 366 days, as the case may
be, and all computations of interest based on the Eurodollar Rate, the Federal
Funds Rate or on the rate of interest set forth in clause (b) of the definition
of "Base Rate" and of fees and Letter of Credit commissions shall be made by the
Administrative Agent 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)
occurring in the period for which such interest, fees or Letter of Credit
commissions are payable. Each determination by the Administrative Agent of an
interest rate, fee or Letter of Credit commission hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
Section 2.13. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.12,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender and each Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or
such Agent is organized or any political subdivision thereof and, in the case of
each Lender, taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable
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hereunder or under any Note to any Lender or any Agent, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.13), such Lender or such Agent receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, performing under, or
otherwise with respect to, this Agreement or the Notes (hereinafter referred to
as "Other Taxes").
(c) The Borrower shall indemnify each Lender and each Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
taxes imposed by any jurisdiction on amounts payable under this Section 2.13)
imposed on or paid by such Lender or such Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto. Indemnification payments under this Section 2.13 shall be made
within 30 days from the date such Lender or such Agent (as the case may be)
makes written demand therefor, accompanied by written evidence demonstrating the
payment of such Taxes or Other Taxes.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its respective addresses
referred to in Section 9.02, if reasonably available, the original or a
certified copy of a receipt or, if no such receipt is reasonably available,
other evidence of payment thereof satisfactory to the Administrative Agent. In
the case of any payment hereunder or under the Notes by or on behalf of the
Borrower through an account or branch outside the United States or by or on
behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such addresses, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender, the Initial
Issuing Bank and the Swing Line Bank and on or prior to the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as reasonably requested in
writing by the Borrower (but only so long thereafter as such Lender remains
lawfully able to do so), provide each of the Administrative Agent and the
Borrower with two original Internal Revenue Service forms W-8BEN or W-8ECI or,
in the case of a Lender that has certified in writing to the Administrative
Agent that it (i) is not a "bank" as defined in Section 881(c)(3)(A) of the
Code, (ii) is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and (iii) is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code), Internal Revenue Service Form W-8BEN, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service,
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certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to the Loan Documents or, in
the case of a Lender that has certified that it is not a "bank" as described
above, certifying that such Lender is a foreign corporation, partnership, estate
or trust. If the forms provided by a Lender at the time such Lender first
becomes a party to this Agreement indicate a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; provided, however, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender becomes a party to this Agreement, the
Lender assignor was entitled to payments under subsection (a) of this Section
2.13 in respect of United States withholding tax with respect to interest paid
at such date, then, to such extent, the term "Taxes" shall include (in addition
to withholding taxes that may be imposed in the future or other amounts
otherwise includable in Taxes) United States withholding tax, if any, applicable
with respect to the Lender assignee on such date. If any form or document
referred to in this subsection (e) requires the disclosure of information, other
than information necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service form W-8BEN or W-8ECI (or the
certificate described above), that the applicable Lender reasonably considers to
be confidential, such Lender shall give notice thereof to the Borrower and shall
not be obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has failed
to provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law or in the interpretation
or application thereof, occurring subsequent to the date on which a form
originally was required to be provided) or if such form otherwise is not
required under subsection (e) of this Section 2.13, such Lender shall not be
entitled to indemnification under Section 2.13(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; provided, however, that
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall at the Lender's expense take such steps
as the Lender shall reasonably request to assist the Lender to recover such
Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.13 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
Section 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than pursuant to Section 2.10, 2.13 or 9.04(c)) in excess of its ratable share
of payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the
32
extent of such recovery together with an amount equal to such Lender's ratable
share (according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.14
may, to the fullest extent permitted by law, 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 the Borrower in the amount of such
participation.
Section 2.15. Use of Proceeds. (a) The proceeds of the
Advances shall be used (i) to refinance certain Indebtedness incurred in
connection with the Borrower's acquisition of MTC and (ii) for general corporate
purposes of the Borrower and its Subsidiaries.
(b) All Letters of Credit shall be issued and proceeds of
Letters of Credit shall be used to support obligations of the Borrower or a
Designated Account Party, contingent or otherwise, for (i) industrial
development bonds, (ii) conference memberships, (iii) port leases, (iv)
insurance, (v) shortfall guarantees related to shipbuilding contracts, (vi)
workers' compensation, (viii) judgments, or appeal bonds in respect thereof, and
(viii) other general corporate purposes.
Section 2.16. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Letters of Credit. Each Issuing Bank severally agrees, on
the terms and conditions hereinafter set forth, to issue standby and, in the
sole discretion of the respective Issuing Bank, direct-pay, letters of credit
(together with the Existing Letters of Credit, the "Letters of Credit") for the
account of the Borrower or a Designated Account Party from time to time on any
Business Day during the period from the Restatement Effective Date until 30 days
before the Termination Date (i) in an aggregate Available Amount for all Letters
of Credit issued by such Issuing Bank not to exceed at any time such Issuing
Bank's Letter of Credit Commitment less such Issuing Bank's Letter of Credit
Advances and (ii) in an Available Amount for each such Letter of Credit not to
exceed the least of (x) the Letter of Credit Sub-Limit at such time, (y) the
Unused Commitments of the Lenders at such time and (z) the Borrowing Base
Availability at such time. No Letter of Credit shall have an expiration date
(including all rights of the Borrower or the beneficiary to require renewal)
later than the earlier of one year after the Termination Date and one year after
the date of issuance thereof. Any Letter of Credit may, upon request of the
Borrower or Designated Account Party, as the case may be, include a provision
whereby such Letter of Credit may be renewed for additional consecutive periods
of 12 months or less, provided that the consent of the Required Lenders and the
Issuing Bank will be required for any such renewal during the continuance of a
Default or Event of Default. Within the limits of the Letter of Credit Facility,
and subject to the limits referred to above, the Borrower or a Designated
Account Party may request the issuance of Letters of Credit under this Section
2.16(a), the Borrower may repay any Letter of Credit Advances resulting from
drawings thereunder pursuant to Section 2.16(d) and the Borrower or a Designated
Account Party may request the issuance of additional Letters of Credit under
this Section 2.16(a). Each Letter of Credit shall be denominated in Dollars.
(b) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 1:00 P.M. (New York City time) on the
third Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower or any Designated Account Party
33
to any Issuing Bank, which shall give to the Administrative Agent and each
Lender prompt notice thereof by telecopier. Each such notice of issuance of a
Letter of Credit (a "Notice of Issuance") shall be by telephone, confirmed
immediately in writing, or telecopier, specifying therein the requested (A) date
of such issuance (which shall be a Business Day), (B) Available Amount of such
Letter of Credit, (C) expiration date of such Letter of Credit, (D) name and
address of the beneficiary of such Letter of Credit and (E) form of such Letter
of Credit, and shall be accompanied by such application and agreement for letter
of credit as such Issuing Bank may specify to the Borrower or such Designated
Account Party for use in connection with such requested Letter of Credit (a
"Letter of Credit Agreement"). If (x) the requested form of such Letter of
Credit and the identity and location of the proposed beneficiary thereof is
acceptable to the Issuing Bank consistent with such Issuing Bank's established
policies generally applicable to the issuance of letters of credit and any
applicable law and (y) it has not received notice of objection to such issuance
from the Required Lenders such Issuing Bank will, upon fulfillment of the
applicable conditions set forth in Article III, make such Letter of Credit
available to the Borrower or such Designated Account Party at its office
referred to in Section 9.02 or as otherwise agreed with the Borrower or such
Designated Account Party in connection with such issuance. In the event and to
the extent that the provisions of any Letter of Credit Agreement shall conflict
with this Agreement, the provisions of this Agreement shall govern.
Notwithstanding Section 9.07, from time to time any Issuing Bank may, by notice
to the Administrative Agent and the Borrower, assign to an Affiliate of such
Issuing Bank which is at such time also an Issuing Bank all or a portion of such
assigning Issuing Bank's Letter of Credit Commitment hereunder. Upon the
issuance of a Letter of Credit, each Lender shall be deemed to have a risk
participation in such Letter of Credit to the extent of its Pro Rata Share of
the Available Amount of such Letter of Credit.
(c) Letter of Credit Reports. Each Issuing Bank shall furnish
(A) to the Administrative Agent on the first Business Day of each month a
written report summarizing issuance and expiration dates of Letters of Credit
issued during the previous month by such Issuing Bank and drawings during such
month under all Letters of Credit, (B) to each Lender on the first Business Day
of each month a written report summarizing issuance and expiration dates of
Letters of Credit issued by such Issuing Bank during the preceding month and
drawings during such month under all Letters of Credit issued by such Issuing
Bank and (C) to the Administrative Agent and each Lender on the first Business
Day of each calendar quarter a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all Letters
of Credit issued by such Issuing Bank.
(d) Drawing and Reimbursement. The payment by any Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by such Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of the Reimbursement
Obligations relating to such draft as of the date of such Letter of Credit
Advance. Upon written demand by such Issuing Bank, with a copy of such demand to
the Administrative Agent, each Lender shall purchase from such Issuing Bank, and
such Issuing Bank shall sell and assign to each such Lender, such Lender's Pro
Rata Share of such outstanding Letter of Credit Advance as of the date of such
purchase, by making available for the account of its Applicable Lending Office
to the Administrative Agent for the account of such Issuing Bank, by deposit to
the Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender; provided, that, in the case of any payment of a
draft drawn under a Letter of Credit that is a
34
direct-pay letter of credit, the applicable Issuing Bank shall not make such
written demand at any time prior to the Business Day immediately following the
date on which such payment is made; provided, further, that at any time prior to
the date on which such written demand is made, the Borrower shall be permitted
to repay the full amount of such payment on same-day notice to the
Administrative Agent and the applicable Issuing Bank. Promptly after receipt of
such payment, the Administrative Agent shall transfer such funds to such Issuing
Bank. The Borrower hereby agrees to each such sale and assignment. Each Lender
agrees to purchase its Pro Rata Share of such an outstanding Letter of Credit
Advance on (i) the Business Day on which demand therefor is made by the Issuing
Bank which made such Advance, provided notice of such demand is given not later
than 11:00 A.M. (New York City time) on such Business Day or (ii) the first
Business Day next succeeding such demand if notice of such demand is given after
such time. Upon any such assignment by an Issuing Bank to any other Lender of a
portion of a Letter of Credit Advance, such Issuing Bank represents and warrants
to such Lender that such Issuing Bank is the legal and beneficial owner of such
interest being assigned by it, free and clear of any liens, but makes no other
representation or warranty and assumes no responsibility with respect to such
Letter of Credit Advance, the Loan Documents, any Loan Party or any Designated
Account Party. If and to the extent that any Lender shall not have so made the
amount of such Letter of Credit Advance available to the Administrative Agent,
such Lender agrees to pay to the Administrative Agent forthwith on demand such
amount together with interest thereon, for each day from the date of demand by
such Issuing Bank until the date such amount is paid to the Administrative
Agent, at the Federal Funds Rate for its account or the account of such Issuing
Bank, as applicable. If such Lender shall pay to the Administrative Agent such
amount for the account of such Issuing Bank on any Business Day, such amount so
paid in respect of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Letter of Credit Advance made by such
Issuing Bank shall be reduced by such amount on such Business Day.
(e) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.16(d) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
(f) Letter of Credit Advances. (i) Upon a Lender making
available to the Administrative Agent the amount of the Letter of Credit Advance
pursuant to Section 2.16(d), such Letter of Credit Advance shall be deemed to be
converted to a Revolving Credit Advance to the extent that at such time such
Lender could make a Revolving Credit Advance pursuant to Section 2.01. The
Borrower shall repay to the Administrative Agent for the account of each Issuing
Bank and each Lender that has a Letter of Credit Advance that has not been
converted pursuant to the immediately preceding sentence on the earliest of (i)
demand, (ii) the date of the next Borrowing and (iii) the Termination Date the
outstanding principal amount of each Letter of Credit Advance made by each of
them.
(ii) The obligations of the Borrower under this Agreement with
respect to any Letter of Credit, any Letter of Credit Agreement and any other
agreement or instrument relating to any Letter of Credit, including without
limitation, the obligation to repay any Advance arising from a drawing on a
Letter of Credit, shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other
35
agreement or instrument under all circumstances, including, without limitation,
the following circumstances and regardless of the use of proceeds of any drawing
under any Letter of Credit or any defense related thereto:
(A) any lack of validity or enforceability of this Agreement,
any Note, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the obligations of the Borrower or
any Designated Account Party in respect of any L/C Related Document or
any other amendment or waiver of or any consent to departure from all
or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower or any Designated Account Party may have at any
time against any beneficiary or any transferee of a Letter of Credit
(or any Persons for whom any such beneficiary or any such transferee
may be acting), any Issuing Bank or any other Person, whether in
connection with the transactions contemplated by the L/C Related
Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
any guaranty, for all or any of the obligations of the Borrower or any
Designated Account Party in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower, any Designated Account Party, any
Guarantor or any other guarantor.
(g) Letter of Credit Fees. (i) The Borrower shall pay (or in
the case of a Letter of Credit issued for the account of a Designated Account
Party, cause such Designated Account Party to pay) to the Administrative Agent
for the account of each Lender a fee on such Lender's Pro Rata Share of the
average daily aggregate Available Amount of all Letters of Credit outstanding
from time to time at the Letter of Credit Fee Rate, payable in arrears quarterly
on the last Business Day of each March, June, September and December commencing
December 31, 2001 and on the Termination Date.
(ii) The Borrower shall pay to each Issuing Bank a fronting
fee on the terms and in the amount agreed upon between the Borrower and such
Issuing Bank with respect to each Letter of Credit issued by such Issuing Bank,
together with such other commissions, transfer fees
36
and other fees and charges in connection with the issuance or administration of
each Letter of Credit as the Borrower and such Issuing Bank shall agree.
(h) Limited Liability of the Issuing Banks. The Borrower (and
in the case of any Letter of Credit issued for the account of a Designated
Account Party, such Designated Account Party) assumes all risks of the acts or
omissions of any beneficiary or transferee of any Letter of Credit with respect
to its use of such Letter of Credit. Neither any Issuing Bank nor any of its
officers or directors shall be liable or responsible for: (a) the use that may
be made of any Letter of Credit or any acts or omissions of any beneficiary or
transferee in connection therewith; (b) the validity, sufficiency or genuineness
of documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by such Issuing Bank against presentation of documents that do not
comply with the terms of a Letter of Credit, including failure of any documents
to bear any reference or adequate reference to the Letter of Credit; or (d) any
other circumstances whatsoever in making or failing to make payment under any
Letter of Credit, except that the Borrower shall have a claim against such
Issuing Bank, and such Issuing Bank shall be liable to the Borrower, to the
extent of any direct, but not consequential, damages suffered by the Borrower
that the Borrower proves were caused by (i) such Issuing Bank's willful
misconduct or gross negligence in determining whether documents presented under
any Letter of Credit comply with the terms of the Letter of Credit or (ii) such
Issuing Bank's willful failure to make lawful payment under a Letter of Credit
after the presentation to it of a draft and certificates strictly complying with
the terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, such Issuing Bank may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
(i) Collateral Account. (i) On or before the Termination Date,
the Borrower hereby agrees to deposit an amount equal to the aggregate amount
available at such time to be drawn under the Letters of Credit (such aggregate
amount as determined from time to time being the "Required Balance") in a cash
collateral account to be established and maintained by the Administrative Agent
pursuant to a Cash Collateral Agreement over which the Administrative Agent
shall have sole dominion and control (the "L/C Cash Collateral Account") upon
terms substantially set forth in such Cash Collateral Agreement. The
Administrative Agent shall, at the Borrower's direction and without assuming any
risk of loss thereof, invest the funds in the L/C Cash Collateral Account in
Cash Equivalents for the account of the Borrower. All interest and other
investment gains earned on such investments shall be added to the L/C Cash
Collateral Account as additional collateral security for the prompt and complete
payment when due of the obligations and liabilities of the Borrower and any
Designated Account Party under and in respect of the Letters of Credit. On (i)
the last Business Day of each calendar month, the Administrative Agent or (ii)
any other date that the Borrower, the Administrative Agent or Required Lenders
through the Administrative Agent shall in writing request, the Administrative
Agent shall determine whether the amount on deposit on such date in the L/C Cash
Collateral Account (A) is greater than the Required Balance on such date (the
amount of such excess being the "Excess Amount") or (B) is less than the
Required Balance on such date (the amount of such deficit being the "Deficit
Amount"). The Administrative Agent shall advise the Borrower on the date of
determination of the existence, if any, of any Excess Amount or Deficit Amount
and thereafter (i) the Borrower shall immediately upon receipt of notice from
the Administrative Agent of the existence of any Deficit Amount, pay to the
Collateral Agent (as defined in the Cash Collateral Agreement), as additional
funds to be deposited and held in such cash collateral account, an
37
amount equal to such Deficit Amount or (ii) upon request of the Borrower within
5 Business Days of receipt of notice from the Administrative Agent of the
existence of any Excess Amount, the Administrative Agent shall instruct such
Collateral Agent to release to the Borrower from the funds on deposit in the L/C
Cash Collateral Account an amount equal to such Excess Amount. If at any time
the Administrative Agent or such Collateral Agent determines that any funds held
in the L/C Cash Collateral Account are subject to any right or claim of any
Person other than such Collateral Agent, any Agent, any Issuing Bank or the
Lenders, which right or claim could reasonably have the effect of reducing the
value of such funds to the Lenders and the Issuing Banks, the Borrower will,
forthwith upon receipt of a demand by the Administrative Agent, pay to the
Collateral Agent, as additional funds to be deposited and held in such L/C Cash
Collateral Account, an amount equal to the amount by which the value of such
funds to the Lenders and the Issuing Banks has been reduced as determined by the
Administrative Agent.
(ii) The Borrower hereby grants a security interest in any
amounts from time to time on deposit in the L/C Cash Collateral Account as
collateral security for the prompt and complete payment when due of the
obligations and liabilities of the Borrower and the Designated Account Parties
under and in respect of the Letters of Credit.
(iii) The Borrower, the Administrative Agent, each other
Agent, each Issuing Bank and the Lenders agree that any action taken or omitted
to be taken by the Administrative Agent in connection with the L/C Cash
Collateral Account, if taken or omitted to be taken in good faith and with
reasonable care, shall be binding upon the Borrower, each other Agent, the
Issuing Banks and the Lenders and shall not create any liability on the part of
the Administrative Agent to the Borrower, each other Agent, the Issuing Banks or
the Lenders.
(j) Existing Letters of Credit. Effective as of the
Restatement Effective Date, (i) all "Letters of Credit" issued for the account
of the Borrower by Citibank under the Existing Credit Agreement (such "Letters
of Credit" as are outstanding thereunder on the Restatement Effective Date and
set forth on Schedule II hereto being the "Existing Letters of Credit"), will be
deemed to be Letters of Credit hereunder and (ii) the applications and
agreements for such Existing Letters of Credit shall be deemed to be Letter of
Credit Agreements hereunder.
Section 2.17. Increase in Commitments.
(a) The Borrower may, at any time prior to the Termination
Date, with the consent of the Administrative Agent (not to be unreasonably
withheld), request that the aggregate amount of the Commitments be increased by
an amount equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (each a "Commitment Increase") to be effective as of a date that is at
least 90 days prior to the scheduled Termination Date then in effect (the
"Increase Date") as specified in the related notice to the Administrative Agent;
provided, however, that (i) in no event shall the aggregate amount of the
Commitment Increases exceed $10,000,000 and (ii) on the date of any request by
the Borrower for a Commitment Increase and on the related Increase Date, the
applicable conditions set forth in Article III shall be satisfied.
(b) The Administrative Agent shall promptly notify such
Eligible Assignees as it shall identify of a request by the Borrower for a
Commitment Increase, which notice shall include (i) the proposed amount of such
requested Commitment Increase, (ii) the proposed Increase Date and (iii) the
date by which Lenders wishing to participate in the Commitment
38
Increase must commit to an increase in the amount of their respective
Commitments (the "Commitment Date"). The requested Commitment Increase shall be
allocated among the Eligible Assignees willing to participate therein in such
amounts as are agreed between the Borrower and the Administrative Agent.
(c) Promptly following each Commitment Date, the
Administrative Agent shall notify the Borrower as to the amount, if any, by
which the Eligible Assignees are willing to participate in the requested
Commitment Increase; provided, however, that the Commitment of each such
Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that is not
prior to such date a Lender hereunder and accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.17(c) (each such
Eligible Assignee, an "Assuming Lender") shall become a Lender party to this
Agreement as of such Increase Date and the Commitment of each Eligible Assignee
that prior to such date is a Lender and accepts an offer to participate in such
a requested Commitment Increase (an "Increasing Lender") shall be so increased
by such amount as of such Increase Date; provided, however, that the
Administrative Agent shall have received on or before such Increase Date the
following, each dated such date:
(i) (A) certified copies of resolutions of the Board of
Directors of the Borrower or the Executive Committee of such Board
approving the Commitment Increase and the corresponding modifications
to this Agreement, (B) a consent executed by each Guarantor approving
the Commitment Increase and the corresponding modifications to this
Agreement and (C) an opinion of counsel for the Borrower (which may be
in-house counsel), in substantially the form of Exhibit D hereto;
(ii) an assumption agreement from each Assuming Lender, if
any, in form and substance satisfactory to the Borrower and the
Administrative Agent (each an "Assumption Agreement"), duly executed by
such Eligible Assignee, the Administrative Agent and the Borrower;
(iii) confirmation from each Increasing Lender of the increase
in the amount of its Commitment in a writing satisfactory to the
Borrower and the Administrative Agent;
(iv) Notes payable to the order of the Assuming Lenders and
the Increasing Lenders evidencing the aggregate indebtedness of the
Borrower to such Lenders after giving effect to the applicable
Commitment Increase; and
(v) revised Schedule I hereto setting forth the Commitment of
each Lender after giving effect to the applicable Commitment Increase.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.17(d), the Administrative Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier ,
of the occurrence of the Commitment Increase to be effected on such Increase
Date and shall record in the Register the relevant information with respect to
each Increasing Lender and each Assuming Lender on such date.
39
Article III
CONDITIONS TO EFFECTIVENESS AND LENDING
Section 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make an Advance or of the Issuing Bank
to issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of the following conditions precedent
before or concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before
the day of the Initial Extension of Credit the following, each dated
such day (unless otherwise specified), in form and substance
satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) A guaranty in substantially the form of Exhibit
E hereto (together with each other guaranty and guaranty
supplement delivered pursuant to Sections 5.01(m) or 5.02(k),
in each case as amended, the "Amended and Restated Subsidiary
Guaranty"), duly executed by each Guarantor.
(iii) Ship Mortgages and supplements to existing Ship
Mortgages, as the Collateral Agent may determine is necessary,
for each Eligible Vessel and Barge listed on Schedule XI
hereto, together with evidence that each such Ship Mortgage,
together with any such supplement, has been duly recorded and
is in full force and effect.
(iv) Assignments of Insurances for each Eligible
Vessel and Barge listed on Schedule XI hereto.
(v) Assignments of Freights and Hires for each
Eligible Vessel and Barge listed on Schedule XI hereto.
(vi) Copy of the most recent appraisal of the value
(as determined in accordance with the appraisal procedures set
forth in the Ship Mortgages) required to be delivered under
the terms of the Existing Credit Agreement of each Eligible
Vessel and Barge listed on Schedule XI hereto by an appraiser
acceptable to the Administrative Agent.
(vii) Certified copies of the resolutions of the
Board of Directors of each Loan Party approving the Agreement
and each other Loan Document to which it is or is to be a
party, and of all documents evidencing other necessary
corporate action and governmental and other third party
approvals and consents, if any, with respect to the Agreement
and each Loan Document to which it is or is to be a party.
(viii) A copy of a certificate of the Secretary of
State of the jurisdiction of incorporation of each Loan Party,
dated reasonably near the date of the Initial Extension of
Credit, certifying (A) as to a true and correct copy of the
charter of
40
such Loan Party and each amendment thereto on file in such
Secretary's office and (B) that such amendments are the only
amendments to such Loan Party's charter on file in such
Secretary's office, and (C) such Loan Party is duly
incorporated and in good standing or presently subsisting
under the laws of the State of the jurisdiction of its
incorporation.
(ix) A certificate of each Loan Party, signed on
behalf of such Loan Party by its President or a Vice President
and its Secretary or any Assistant Secretary, dated the date
of the Initial Extension of Credit (the statements made in
which certificate shall be true on and as of the date of the
Initial Extension of Credit), certifying as to (A) the absence
of any amendments to the charter of such Loan Party since the
date of the Secretary of State's certificate referred to in
Section 3.01(a)(viii) and (B) a true and correct copy of the
bylaws of such Loan Party as in effect on the date on which
the resolutions referred to in Section 3.01(a)(vii) were
adopted and on the date of the Initial Extension of Credit.
(x) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of the officers of such Loan Party authorized to
sign each Loan Document to which it is or is to be a party and
the other documents to be delivered hereunder and thereunder.
(xi) Evidence of insurance naming the Collateral
Agent as additional insured and loss payee with such
responsible and reputable insurance companies or associations,
and in such amounts and covering such risks as is required by
the Ship Mortgages and as is satisfactory to the Lender
Parties.
(xii) A Notice of Borrowing or Notice of Issuance, as
applicable, and a Borrowing Base Certificate relating to the
Initial Extension of Credit.
(xiii) A favorable opinion of Xxxxxxxxx, Poster &
Xxxxxx, counsel for the Loan Parties, in substantially the
form of Exhibit D hereto and as to such other matters as any
Lender Party through the Administrative Agent may reasonably
request.
(b) The Borrower shall have paid all accrued and unpaid fees
of the Agents and the Lender Parties which are due and payable on or
prior to the Restatement Effective Date and all accrued expenses of the
Agents (including the accrued fees and expenses of counsel to the
Administrative Agent) and all letters of credit issued thereunder
(except Existing Letters of Credit) shall have been terminated.
Section 3.02. Conditions Precedent to Each Borrowing and
Issuance, Etc. The obligation of each Lender to make an Advance (other than a
Letter of Credit Advance made by an Issuing Bank or a Lender pursuant to Section
2.16(d) and a Swing Line Advance made by a Lender other than the Swing Line Bank
pursuant to Section 2.02(b)) on the occasion of each Borrowing (including the
Initial Extension of Credit), and the right of the Borrower or a Designated
Account Party to request the issuance of Letters of Credit (including the
initial issuance of Letters of Credit) and the right of the Borrower to request
a Swing Line Borrowing,
41
shall be subject to the conditions precedent that the Restatement Effective Date
shall have occurred and on the date of such Borrowing or issuance (a) the
following statements shall be true (and each of the giving of the applicable
Notice of Borrowing, Notice of Swing Line Borrowing or Notice of Issuance and
the acceptance by the Borrower of the proceeds of such Borrowing or by the
Borrower or such Designated Account Party of such Letter of Credit shall
constitute a representation and warranty by the Borrower that on the date of
such Borrowing or issuance such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of the date of such Borrowing or issuance, before
and after giving effect to such Borrowing or issuance and to the application of
the proceeds therefrom, as though made on and as of such date other than any
such representations or warranties that, by their terms, refer to a date other
than the date of such Borrowing or issuance;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or from the application of the proceeds
therefrom, that constitutes a Default;
(iii) since the Restatement Effective Date there shall have
been no development or event, or any prospective development or event, with
respect to or arising out of the reform (whether arising from any act of
Congress, any regulatory or administrative law change, any determination of any
court in respect of the foregoing or otherwise) of the United States Shipping
Act of 1984, as amended through the Restatement Effective Date, which has had or
is reasonably likely to have a Material Adverse Effect; and
(iv) for each Advance or request for the issuance of any
Letter of Credit, the Borrowing Base Availability is greater than zero after
giving effect to such Advance or issuance;
and (b) the Administrative Agent shall have received not less than three, and
not more than five, Business Days prior to the date of the proposed Advance or
proposed issuance a fully completed and executed Borrowing Base Certificate, as
of the date of delivery.
Article IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties. To induce the
Lenders to enter into this Agreement and to make the Advances and the Issuing
Banks to issue the Letters of Credit, the Borrower hereby represents and
warrants to each Agent, each Issuing Bank and each Lender that:
(a) Financial Condition; Ownership. (i) The Consolidated
balance sheets of the Borrower and its Subsidiaries as at December 31, 2000 and
December 31, 1999 and the related Consolidated statements of income and of cash
flows for the fiscal years ended on such dates, reported on by Deloitte &
Touche, copies of which have heretofore been furnished to each Lender, present
fairly the Consolidated financial condition of the Borrower and its Subsidiaries
as at such dates, and the Consolidated results of their operations and their
Consolidated cash flows for the fiscal years then ended. The unaudited
Consolidated balance sheet of the Borrower and its Subsidiaries as at June 30,
2001 and the related unaudited Consolidated statements of income and
42
of cash flows for the three-month period ended on such date, certified by a
Responsible Officer, copies of which have heretofore been furnished to each
Lender, present fairly the Consolidated financial condition of the Borrower and
its Subsidiaries as at such date, and the Consolidated results of their
operations and their Consolidated cash flows for the three-month period then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods.
(ii) Schedule V sets forth, as of June 30, 2001, each owner of
more than 5% of the voting stock of the Borrower and the percent of such voting
stock owned by each Person listed on such schedule.
(b) No Change. Since December 31, 2000 there has been no
development or event nor has there been any prospective development or event,
which has had or is reasonably likely to have a Material Adverse Effect.
(c) Corporate Existence; Compliance with Law. Each Loan Party
(a) is a corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the corporate power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation and authorized
to do business under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
except to the extent that the failure to be so qualified has not had and is not
reasonably likely to have a Material Adverse Effect and (d) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith has not had and is not reasonably likely to have a Material Adverse
Effect.
(d) Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party and each Designated Account Party has or will have all necessary
power and authority, and the legal right, to make, deliver and perform each Loan
Document to which it is or will be a party, and to consummate the transactions
contemplated thereby. The Borrower has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement, the Notes
and the other Loan Documents to which it is a party, and each other Loan Party
and Designated Account Party has taken (or will have taken prior to the
execution thereof) all necessary corporate actions to authorize the execution,
delivery and performance of each Loan Document to which it is or will be a
party. No consent or authorization of, filing with or other act by or in respect
of, any Governmental Authority or any other Person is required in connection
with the borrowings hereunder, the issuance of the Letters of Credit or the
execution, delivery, performance, validity or enforceability of this Agreement,
the Notes or the other Loan Documents. This Agreement and the Amended and
Restated Subsdiary Guaranty have been, and each Note and each Letter of Credit
Agreement will be, duly executed and delivered on behalf of each Loan Party
which is a party thereto. This Agreement and the Amended and Restated Subsdiary
Guaranty constitutes, and each Note and each Letter of Credit Agreement when
executed and delivered will constitute, a legal, valid and binding obligation of
each Loan Party which is a party thereto, enforceable against them in accordance
with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
43
(e) No Legal Bar. The execution, delivery and performance by
the Loan Parties and the Designated Account Parties of this Agreement, the
Letter of Credit Agreements, the Amended and Restated Subsdiary Guaranty, and
the Notes and the other Loan Documents, the borrowings hereunder, the use of the
proceeds thereof and the issuance of the Letters of Credit will not violate any
Requirement of Law applicable to any Loan Party or Designated Account Party or
any Contractual Obligation of any Loan Party or Designated Account Party and
will not result in, or require, the creation or imposition of any Lien on any of
its or their respective properties or revenues pursuant to any such Requirement
of Law or Contractual Obligation.
(f) No Material Litigation. No litigation, proceeding, or, to
the best of the Borrower's knowledge, investigation (in each case including,
without limitation, any Environmental Action), of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of its Subsidiaries or against any
Designated Account Party or against any of its or their respective properties or
revenues (a) with respect to this Agreement, the Letter of Credit Agreements,
the Amended and Restated Subsdiary Guaranty or the Notes or any other Loan
Document or any of the transactions contemplated hereby, or (b) which has had or
is reasonably likely to have a Material Adverse Effect. Set forth in Schedule VI
is a description of the most significant pending litigations and proceedings
and, to the best of the Borrower's knowledge, investigations (the "Disclosed
Litigation") involving the Borrower or any of its Subsidiaries as of the
Restatement Effective Date; no such litigation, proceeding and investigation has
had and is reasonably likely to have a Material Adverse Effect.
(g) No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which has had or is reasonably likely to have a
Material Adverse Effect.
(h) Ownership of Property; Liens. The Borrower and its
Restricted Subsidiaries have good title to the material properties and other
assets reflected in the Consolidated balance sheet and related notes as at
December 31, 2000 referred to in subsection 4.01(a) and to all material
properties and assets acquired by them thereafter (other than, in each case,
those assets subject to Financing Leases) except those which are no longer used
or useful in the conduct of their business and except properties which
singularly or in the aggregate are not material to the Borrower and its
Consolidated Subsidiaries viewed as a whole, and none of such property is
subject to any Lien except as permitted by Section 5.02(b).
(i) No Burdensome Restrictions. No Requirement of Law or
Contractual Obligation of the Borrower or any of its Subsidiaries adversely
affects the business, operations or financial condition of the Borrower and its
Subsidiaries taken as a whole to an extent that has had or is reasonably likely
to have a Material Adverse Effect.
(j) Taxes. The Borrower and each of its Subsidiaries has filed
all United States federal and California state income tax returns which are
required to be filed by the Borrower and its Subsidiaries. Except where the
failure to do so has not had and is not reasonably likely to have a Material
Adverse Effect, each of the Borrower and its Subsidiaries has filed or caused to
be filed all other tax returns which, to the knowledge of the Borrower, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any
44
of its property and all other taxes, fees or other charges imposed on it or any
of its property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Subsidiaries, as the case may be).
The charges, accruals and reserves in respect of taxes on the books of the
Borrower and its Consolidated Subsidiaries are adequate (determined in
accordance with GAAP). Federal income tax returns submitted as of the
Restatement Effective Date by the Borrower and its Subsidiaries have been
audited by and settled with the Internal Revenue Service or the statute of
limitations has expired for all years to and including the fiscal year ended
December 31, 2000 and the results of such settlement are properly reflected in
the financial statements referred to in subsection 4.01(a). As of the
Restatement Effective Date, the Borrower knows of no proposed material tax
assessment against the Borrower or any of its Subsidiaries. As of the
Restatement Effective Date, no extension of time for the assessment of U.S.
federal, state or local taxes of the Borrower of any of its Subsidiaries is in
effect or has been requested.
(k) Federal Margin Regulations. No part of the proceeds of any
Advances will be used for "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or to extend credit to others for the purpose of purchasing
or carrying margin stock or to refund indebtedness originally incurred for such
purpose.
(l) ERISA Matters. (i) No ERISA Event has occurred or is
reasonably expected to occur with respect to any Plan.
(ii) As of the last annual actuarial valuation date, the
funded current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90% and there has been no material adverse change in the
funding status of any such Plan since such date.
(iii) Neither the Borrower nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan that has had or is reasonably likely to have a Material
Adverse Effect.
(iv) Neither the Borrower nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of ERISA.
(v) Except as set forth in the financial statements referred
to in this Section 4.01 and in Section 5.01, the Borrower and its Consolidated
Subsidiaries have no material liability with respect to "expected post
retirement benefit obligations" within the meaning of Statement of Financial
Accounting Standards No. 106 other than unamortized transition costs not
exceeding $5,500,000.
(m) Investment Company Act. The Borrower is not an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
45
(n) Subsidiaries. Schedule VII lists all the Subsidiaries of
the Borrower at the date of this Agreement, the Net Assets of such Subsidiaries
as of June 30, 2001 and the Net Revenues of such Subsidiaries for the four
consecutive fiscal quarters of the Borrower ending June 30, 2001.
(o) Environmental Matters. Each of the representations and
warranties set forth in paragraphs (i) through (iii) below is true and correct
to the extent that the facts and circumstances giving rise to any such failure
to be so true and correct have not had, and are not reasonably likely to have, a
Material Adverse Effect.
(i) The operations and properties of the Borrower and each of
its Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance
with such Environmental Laws and Environmental Permits has been
resolved without ongoing obligations or costs, and no circumstances
exist that could be reasonably likely to (i) form the basis of an
Environmental Action against the Borrower or any of its Subsidiaries or
any of their properties that could have a Material Adverse Effect or
(ii) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental
Law that could have a Material Adverse Effect.
(ii) None of the properties currently or formerly owned or
operated by the Borrower or any of its Subsidiaries is listed or
proposed for listing on the National Priorities List under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("NPL") or on the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency ("CERCLIS") or any analogous foreign,
state or local list or, to the best knowledge of the Borrower, is
adjacent to any such property; there are no and never have been any
underground or aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous Materials are
being or have been treated, stored or disposed of on any property
currently owned or operated by the Borrower or any of its Subsidiaries
or, to the best of its knowledge, on any property formerly owned or
operated by the Borrower or any of its Subsidiaries; there is no
friable asbestos or asbestos-containing material on any property
currently owned or operated by the Borrower or any of its Subsidiaries;
and Hazardous Materials have not been released, discharged or disposed
of on any property currently or formerly owned or operated by the
Borrower or any of its Subsidiaries or, to the best of its knowledge,
any adjoining property.
(iii) Neither the Borrower nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together
with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or
threatened release, discharge or disposal of Hazardous Materials at any
site, location or operation, either voluntarily or pursuant to the
order of any governmental or regulatory authority or the requirements
of any Environmental Law; and all Hazardous Materials generated, used,
treated, handled or stored at or transported to or from any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries have been disposed of in a manner not reasonably expected
to result in material liability to the Borrower or any of its
Subsidiaries.
46
Article V
COVENANTS OF THE BORROWER
Section 5.01. Affirmative Covenants. The Borrower hereby
agrees that, so long as any Advance shall remain unpaid, any Letter of Credit
shall be outstanding other than any Letter of Credit in respect of which cash
collateral has been deposited and is maintained in accordance with subsection
2.16(i), any Lender shall have any Commitment hereunder or any Issuing Bank
shall have any Letter of Credit Commitment hereunder, the Borrower shall and
(except in the case of delivery of financial information, reports and notices
pursuant to subsections 5.01(a) and 5.01(b)) shall cause each of its Restricted
Subsidiaries to:
(a) Financial Statements. Furnish to each Lender:
(i) as soon as available, but in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the Consolidated balance sheet of the Borrower and its
Subsidiaries (including all Joint Ventures required by GAAP to
be so included) as at the end of such year and the related
Consolidated statements of income and retained earnings and of
cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported
on without a qualification or exception arising out of the
scope of the audit, by Deloitte & Touche or other independent
certified public accountants of nationally recognized
standing;
(ii) as soon as available, but in any event not later
than 45 days after the end of each of the first three
quarterly periods of each fiscal year of the Borrower, the
unaudited Consolidated balance sheet of the Borrower and its
Subsidiaries (including all Joint Ventures required by GAAP to
be so included) as at the end of such quarter and the related
unaudited Consolidated statements of income and retained
earnings and of cash flows of the Borrower and its
Subsidiaries (including all Joint Ventures) for the portion of
the fiscal year through the end of such quarter, setting forth
in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end
audit adjustments);
(iii) as soon as available but in any event within
180 days after the end of each fiscal year of the Borrower, as
to the Borrower and each Subsidiary of the Borrower (including
each Joint Ventures required by GAAP to be so included), a
Consolidating balance sheet as at the end of such year and a
related Consolidating statement of income for such year,
certified by a Responsible Officer; and
all such financial statements to present fairly in accordance with
GAAP, applied consistently throughout the periods reflected therein and
with prior periods (except as any such inconsistency may be approved by
such accountants or a Responsible Officer, as the case may be, and
disclosed therein and subject, in the case of unaudited quarterly
financial statements, to normal year-end audit adjustments), the
Consolidated financial condition of the Borrower and its Subsidiaries
(including all Joint Ventures required by GAAP to be so
47
included) as at the dates of such statements, and the Consolidated
results of their operations and their Consolidated cash flows for the
periods then ended.
(b) Certificates; Other Information. Furnish to each Lender:
(i) concurrently with the delivery of the financial
statements referred to in subsection 5.01(a)(i), a certificate
of the independent certified public accountants reporting on
such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such
certificate;
(ii) concurrently with the delivery of the financial
statements referred to in subsections 5.01(a)(i) and
5.01(a)(ii), a certificate of a Responsible Officer (i)
stating that, to the best of such Responsible Officer's
knowledge, the Borrower during such period has observed or
performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and in
the Notes and the other Loan Documents to which it is a party
to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default
or Event of Default except as specified in such certificate,
such certificate to include calculations in reasonable detail
demonstrating such observance, performance and satisfaction
(including, without limitation, all adjustments to any
information provided in such financial statements necessary to
calculate compliance with the financial covenants set forth in
Section 5.03) and (ii) setting forth as of the date of such
financial statements the aggregate amount of Investments in
each Joint Venture and the percentage of such Joint Venture
owned by the Borrower and any Subsidiary of the Borrower;
(iii) not later than 120 days after the beginning of
each fiscal year of the Borrower a reasonably detailed
business plan for such fiscal year;
(iv) within five days after the same are sent, copies
of all financial statements which the Borrower sends to its
stockholders, and within five days after the same are filed,
copies of all financial statements and reports which the
Borrower may make to, or file with, the Securities and
Exchange Commission or any successor or analogous Governmental
Authority; and
(v) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request.
(c) Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the
case may be, all its obligations of whatever nature, except where (i)
the amount or validity thereof is currently being contested in good
faith by appropriate proceedings and reserves in conformity with GAAP
with respect thereto have been provided on the books of the Borrower or
its Restricted Subsidiaries, as the case may be, or (ii) the failure to
pay, discharge or otherwise satisfy the same has not had and is not
reasonably likely to have a Material Adverse Effect.
48
(d) Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by the
Borrower and its Restricted Subsidiaries taken as a whole; preserve,
renew and keep in full force and effect its corporate existence and
take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business
except as otherwise permitted pursuant to subsection 5.02(d) or except
where the failure to do so has not had and is not reasonably likely to
have a Material Adverse Effect; comply with all Contractual Obligations
and Requirements of Law (except to the extent that the failure to do so
is not reasonably likely to have a Material Adverse Effect).
(e) Maintenance of Property; Insurance. Keep all property
necessary in the business of the Borrower and its Restricted
Subsidiaries taken as a whole in good working order and condition;
maintain in effect all licenses, permits, trade names, trademarks,
patents and other intellectual property necessary in the business of
the Borrower and its Restricted Subsidiaries taken as a whole; maintain
insurance on all Eligible Vessels and Barges as required by the Ship
Mortgages and on all its other property in at least such amounts and
against at least such risks (including public liability and product
liability) as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to
each Lender, upon written request, full information as to the insurance
carried.
(f) Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and
correct entries in conformity with GAAP and in all material respects in
conformity with all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender and any Agent to visit and inspect any of
its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with
officers and employees of the Borrower and its Restricted Subsidiaries
and with its independent certified public accountants, provided that
discussions with the independent certified accountants shall be
arranged by the Borrower.
(g) Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(i) the occurrence of any Default or Event of
Default;
(ii) (x) in any event within 20 days after the
Director of Compensation and Benefits (or its equivalent) of
the Borrower or any ERISA Affiliate knows or has reason to
know that any ERISA Event has occurred, a statement of the
chief financial officer of the Borrower describing such ERISA
Event and the action, if any, that the Borrower or any
relevant ERISA Affiliate has taken and proposes to take with
respect thereto and (y) in any event within 3 Business Days
after the date any records, documents or other information
must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA, a copy of such records,
documents and information;
49
(iii) in any event within 3 Business Days after
receipt thereof by the Director of Compensation and Benefits
(or its equivalent) of the Borrower or any ERISA Affiliate,
copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to
administer any Plan;
(iv) in any event within 30 days after the receipt
thereof by the Director of Compensation and Benefits (or its
equivalent) of the Borrower or any ERISA Affiliate, a copy of
the annual actuarial report for each Plan the funded current
liability percentage (as defined in Section 302(d)(8) of
ERISA) of which is less than 90% or the unfunded current
liability of which exceeds $1,000,000;
(v) in any event within 15 days after receipt thereof
by the Director of Compensation and Benefits (or its
equivalent) of the Borrower or any ERISA Affiliate from the
sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any
such Multiemployer Plan, (B) the reorganization or
termination, within the meaning of Title IV of ERISA, of any
such Multiemployer Plan or (C) the amount of liability
incurred, or that may be incurred, by the Borrower or any
ERISA Affiliate in connection with any event described in
clause (A) or (B);
(vi) promptly after any Responsible Officer has
knowledge of the assertion or occurrence thereof, notice of
any Environmental Action against or of any noncompliance by
the Borrower or any of its Subsidiaries with any Environmental
Law or Environmental Permit that could reasonably be expected
to have a Material Adverse Effect; and
(vii) any development or event (including, without
limitation, any litigation, proceeding or, if known to the
Borrower, investigation affecting the Borrower or any of its
Subsidiaries or any default in any Contractual Obligations of
the Borrower or any of its Subsidiaries), known to any
Responsible Officer, which has had or is reasonably likely to
have a Material Adverse Effect.
Each notice pursuant to this subsection 5.01(g) shall be accompanied by
a statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower
proposes to take with respect thereto.
(h) Environmental Laws. (i) Compliance with Environmental
Laws. Comply, and cause each of its Subsidiaries and all lessees and
other Persons operating or occupying its properties to comply, in all
material respects, with all applicable Environmental Laws and
Environmental Permits except to the extent failure to do so has not had
and is not reasonably likely to have a Material Adverse Effect; obtain
and renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties
except to the extent failure to do so has not had and is not reasonably
likely to have a Material Adverse Effect; and conduct and cause each of
its Subsidiaries to conduct any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of
its properties, in accordance with the requirements of all
Environmental Laws except to the extent failure to do so has not had
and is not reasonably likely to have a
50
Material Adverse Effect; provided, however, that neither the Borrower
nor any of its Restricted Subsidiaries shall be required to undertake
any such cleanup, removal, remedial or other action to the extent that
its obligation to do so is being contested in good faith and by proper
proceedings and appropriate reserves are being maintained with respect
to such circumstances.
(ii) Preparation of Environmental Reports. If an Event of
Default shall have occurred and be continuing, at the request of the
Administrative Agent or the Required Lenders, provide to the Lenders
within 120 days after such request, at the expense of the Borrower, an
environmental site assessment report for the properties described in
such request, prepared by an environmental consulting firm acceptable
to the Administrative Agent or the Required Lenders, indicating the
presence or absence of Hazardous Materials and the estimated cost of
any compliance, removal or remedial action in connection with any
Hazardous Materials on such properties; without limiting the generality
of the foregoing, if the Administrative Agent or the Required Lenders
determines at any time that a material risk exists that any such report
will not be provided within the time referred to above, the
Administrative Agent or the Required Lenders, as the case may be, may
retain an environmental consulting firm to prepare such report at the
expense of the Borrower, and hereby grants to the Administrative Agent,
the Lenders, such firm and any agents or representatives thereof an
irrevocable non-exclusive license, subject to the rights of tenants, to
enter onto its properties to undertake such an assessment.
(i) Joint Venture Separateness. Cause each Joint Venture to
(i) maintain its funds in accounts which are separate and distinct from
any account maintained by the Borrower or any of its other
Subsidiaries, (ii) maintain its own business and financial records,
(iii) act pursuant to corporate resolutions or similar authority
granted in accordance with the laws applicable to governance of the
Joint Venture entity and with procedures required by any organizational
document of the Joint Venture, (iv) document and record in its
financial records each transaction between such Joint Venture, on the
one hand, and the Borrower or any of its other Subsidiaries, on the
other hand, in accordance with business practices commonly employed by
enterprises similar to the Joint Venture with respect to transactions
with non-Affiliates, (v) conduct its business with third parties in the
name of the Joint Venture and not in the name of the Borrower or any of
its other Subsidiaries and (vi) have at the time such Joint Venture
commences the business of the Joint Venture capitalization adequate (in
the reasonable determination of the Borrower) to meet its reasonably
anticipated business needs.
(j) Further Assurances. Promptly upon the request of the
Administrative Agent, or any of the Lenders through the Administrative
Agent, at any time and from time to time:
(i) correct, and cause each of its Subsidiaries to
correct, any defect or error that may be discovered in any of
the Loan Documents or in the execution, acknowledgment, filing
or recordation thereof; and
(ii) do, execute, acknowledge, deliver, record,
rerecord, file, refile, register and reregister, and cause
each of its Subsidiaries promptly to do, execute, acknowledge,
deliver, record, rerecord, file, refile, register and
reregister, any and
51
all further acts, conveyances, pledge agreements, ship
mortgages, assignments, financing statements and continuations
thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as
the Administrative Agent, or any of the Lenders through the
Administrative Agent, may reasonably require from time to time
in order to (A) carry out more effectively the purposes of
this Agreement, the Notes or any of the other Loan Documents,
(B) subject any of the property, assets, rights or interests
of any of the Loan Parties or any of their respective
Subsidiaries included or intended to be included in the
Collateral to the Liens created or now or hereafter intended
to be created under any of the Collateral Documents, (C)
perfect and maintain the validity, effectiveness and priority
of any of the Collateral Documents or any of the Liens created
or intended to be created thereunder and (D) assure, convey,
grant, assign, transfer, preserve, protect and confirm more
effectively to the Administrative Agent and the other Secured
Parties the rights granted or now or hereafter intended to be
granted to the Administrative Agent and the other Secured
Parties under any of the Loan Documents, or under any of the
other instruments executed in connection with any such Loan
Document.
(k) Hull Maintenance. On and following the date that is six
months following the Restatement Effective Date, maintain at all times
the Ships Value at an amount equal to or greater than 125% of the
Revolving Credit Facility, whether before or after giving effect to any
Vessel or Barge Disposition.
(l) Vessel or Barge Disposition. (i) Furnish to the
Administrative Agent, as soon as available but in any event no later
than 10 Business Days prior to any Vessel or Barge Disposition, (A) a
notice of such Vessel or Barge Disposition and (B)(1) an appraisal of
the value of the Eligible Vessel or Barge that is the subject of such
Vessel or Barge Disposition, as determined in accordance with the
appraisal procedures set forth in the applicable Ship Mortgage or (2) a
certificate, in form and substance satisfactory to the Administrative
Agent and signed by a duly authorized officer of such Loan Party, (x)
stating the agreed sale price for such Eligible Vessel or Barge and (y)
certifying that such Eligible Vessel or Barge Disposition was conducted
on an arms-length basis;
(ii) Furnish to the Administrative Agent, on or prior to the
date of any Vessel or Barge Disposition, a certificate of each Loan
Party, signed on behalf of such Loan Party by a duly authorized officer
of such Loan Party, stating that:
(A) the representations and warranties contained in
each Loan Document are correct on and as of the date of such
Vessel or Barge Disposition, before and after giving effect to
such Vessel or Barge Disposition and to the application of the
proceeds therefrom;
(B) no event has occurred and is continuing, or would
result from such Vessel or Barge Disposition or from the
application of the proceeds therefrom, that constitutes a
Default; and
(C) since the Restatement Effective Date there have
been no development or event, or any prospective development
or event, with respect to or
52
arising out of the reform (whether arising from any act of
Congress, any regulatory or administrative law change, any
determination of any court in respect of the foregoing or
otherwise) of the United States Shipping Act of 1984, as
amended through the Restatement Effective Date, which has had
or is reasonably likely to have a Material Adverse Effect.
(D) After giving effect to such Vessel or Barge
Disposition, the Borrower will be in compliance with Section
2.09(b).
(m) New Eligible Vessel and Barge. In the event the Borrower
shall add any new Eligible Vessel and Barge, whether or not to replace
any Eligible Vessel and Barge that is the subject of disposal pursuant
to subsection 5.02(e)(vi), the Borrower shall furnish to the
Administrative Agent on or prior to the date of addition of such new
Eligible Vessel and Barge:
(i) Ship Mortgages for such new Eligible Vessel and Barge,
together with evidence that each such Ship Mortgage has been duly filed
and is in full force and effect as of the date of addition of such new
Eligible Vessel and Barge.
(ii) Assignments of Insurances for such new Eligible Vessel
and Barge.
(iii) Assignments of Freights and Hires for such new Eligible
Vessel and Barge.
(iv) Appraisal of the value of such new Eligible Vessel and
Barge as determined in accordance with the appraisal procedures set
forth in the applicable Ship Mortgage.
(v) Certificate of each Loan Party, signed on behalf of such
Loan Party by a duly authorized officer of such Loan Party, stating
that:
(A) the representations and warranties contained in
each Loan Document are correct on and as of the date of
addition of such new Eligible Vessel and Barge, before and
after giving effect to addition of such new Eligible Vessel
and Barge;
(B) no event has occurred and is continuing, or would
result from the addition of such new Eligible Vessel and
Barge, that constitutes a Default; and
(C) since the Restatement Effective Date there have
been no development or event, or any prospective development
or event, with respect to or arising out of the reform
(whether arising from any act of Congress, any regulatory or
administrative law change, any determination of any court in
respect of the foregoing or otherwise) of the United States
Shipping Act of 1984, as amended through the Restatement
Effective Date, which has had or is reasonably likely to have
a Material Adverse Effect.
53
(vi) Favorable opinion of Xxxxxxxxx, Poster & Xxxxxx, counsel
for the Loan Parties, in substantially the form of Exhibit D hereto and
as to such other matters as the Administrative Agent may reasonably
request.
(vii) Amended and Restated Subsdiary Guaranty duly executed by
each Person who, prior to such execution, was not a Guarantor, and who
has any ownership interest in such new Eligible Vessel and Barge.
(viii) Acknowledgment copies or stamped receipt copies of
proper financing statements, duly filed on or before the day of the
Initial Extension of Credit under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem necessary or
desirable in order to perfect and protect the first priority liens and
security interests created under the applicable Assignments of
Insurances, Assignments of Freights and Hires and other applicable
Collateral Documents.
(n) Repayment of MTC Credit Agreement. No later than five
Business Days following the Restatement Effective Date, repay in full
all amounts owing under and in respect of the MTC Credit Agreement ,
terminate all commitments thereunder and take each action required to
be taken under Section 5.01(j) in respect of MTC and its Subsidiaries.
Section 5.02. Negative Covenants. The Borrower hereby agrees
that, so long as any Advance shall remain unpaid, any Letter of Credit shall be
outstanding other than any Letter of Credit in respect of which cash collateral
has been deposited and is maintained in accordance with subsection 2.16(i), any
Lender shall have any Commitment hereunder or any Issuing Banks shall have a
Letter of Credit Commitment hereunder, the Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly:
(a) Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(i) Indebtedness in respect of the Advances, the
Notes, the Letters of Credit and other obligations of the
Borrower under this Agreement;
(ii) (A) Indebtedness of the Borrower to any
Restricted Subsidiary and of any Restricted Subsidiary to the
Borrower or any other Restricted Subsidiary, and (B)
Indebtedness of the Borrower or any Restricted Subsidiary to
any Person other than a financial institution in an aggregate
principal amount at any time outstanding not exceeding
$5,000,000;
(iii) Indebtedness of the Borrower in principal
amount outstanding at any time not to exceed $10,000,000 in
the aggregate under lines of credit offered by commercial
banks or other financial institutions to the Borrower to
finance the working capital needs of the Borrower and its
Restricted Subsidiaries;
(iv) Indebtedness consisting of reimbursement
obligations in respect of letters of credit (other than the
Letters of Credit) issued for the account of the Borrower or
any Restricted Subsidiary in an aggregate amount not exceeding
for
54
the Borrower and its Restricted Subsidiaries $10,000,000 in
aggregate principal amount at any time outstanding;
(v) Indebtedness of the Borrower to issuers of life
insurance policies under which the Borrower is the beneficiary
to the extent that such Indebtedness does not exceed at any
time, in the aggregate, the lesser of (A) the cash surrender
value of such policies and (B) the sum of $2,000,000 plus the
amount of proceeds of such Indebtedness applied to pay
premiums on such life insurance policies;
(vi) Indebtedness and Guaranty Obligations
outstanding on the Restatement Effective Date and listed on
Schedule III hereto;
(vii) Indebtedness incurred in connection with the
Capital Expenditures permitted by Section 5.02(g) or secured
by Liens described in Section 5.02(b)(vi);
(viii) Indebtedness of MTC and its Subsidiaries
existing on the date of purchase (the "MTC Purchase Date") of
certain shares of common stock of MTC by the Borrower and
Shiloh Acquisition, Inc. ("Shiloh"), a Wholly Owned
Subsidiary, pursuant to the terms of an Agreement of Merger,
dated as of December 20, 2000, among the Borrower, MTC and
Shiloh, and other agreements related thereto; and
(ix) Indebtedness to be created subsequent to the MTC
Purchase Date by Marine Transport Lines, Inc. ("MTL") and
Mormac Marine Enterprise, Inc. ("Mormac"), both Subsidiaries
of MTC, respectively under two certain Loan and Security
Agreements, each providing for loans aggregating not more than
$2,250,000 to be made by ALLFIRST BANK.
(b) Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except for:
(i) Liens for taxes, assessments or other charges
which (x) are not at the time delinquent or are thereafter
payable without penalty, or (y) are being contested in good
faith by appropriate proceedings, provided with respect to
taxes, assessments or other charges referred to in clause (x)
and clause (y), that adequate reserves with respect thereto
are maintained on the books of the Borrower and its Restricted
Subsidiaries to the extent required in conformity with GAAP;
(ii) Liens in existence on the Restatement Effective
Date listed on Schedule III hereto, provided that no such Lien
is spread to cover any additional property or to secure any
additional Indebtedness after the Restatement Effective Date
except in accordance with provisions of the documents and
instruments relating to the Indebtedness or other obligations
secured by such Liens which (x) are in effect as of the
Restatement Effective Date and (y) are described on Schedule
III.
55
(iii) Liens on vessels arising in the event the use
or title of such vessel is taken or requisitioned by any
Governmental Authority;
(iv) Liens securing judgments of less than $7,500,000
in the aggregate as to the Borrower and its Restricted
Subsidiaries taken as a whole at any time, provided that no
such Lien shall have been in existence more than thirty (30)
days after the entry of the judgment, or execution thereof
shall have been stayed or the payment thereof shall be covered
in full by insurance on which the insurer has neither reserved
the right to dispute, nor disputed, coverage;
(v) Liens on any asset of the Borrower or any of its
Restricted Subsidiaries existing at the time such Person is
merged into or consolidated with the Borrower or any of its
Restricted Subsidiaries, if (x) such merger or consolidation
is permitted by this Agreement, and (y) such Lien was
otherwise permitted by this Agreement and was not created in
contemplation of such event; provided that no such Lien is
spread to cover any additional property or to secure any
additional Indebtedness after the effective date of such
merger or consolidation;
(vi) Liens on vessels and related assets existing as
of the Restatement Effective Date and created to secure the
financing or refinancing of the construction or reconstruction
of such vessels, which financing or refinancing is guaranteed
under the provisions of Title XI of the Merchant Marine Act of
1936, as amended;
(vii) Liens arising in connection with deposits of
funds from time to time into the capital construction fund
created pursuant to the Capital Construction Fund Agreement
(no. MA-CCF-370) dated October 21, 1977, as amended, between
the Borrower and the United States of America, but only to the
extent such Liens arise solely out of such agreement or out of
borrowings of such deposits;
(viii) Liens in favor of the Agents or the Lenders to
secure any or all of the Borrower's Obligations created under
the Loan Documents;
(ix) Other Liens arising in the ordinary course of
the business of the Borrower and its Restricted Subsidiaries
viewed as a whole which (x) do not secure Indebtedness and (y)
either (A) are being contested in good faith and with respect
to which reserves are being maintained on the books of the
Borrower and its Consolidated Restricted Subsidiaries in
conformity with GAAP or (B) in the aggregate do not have, and
are not reasonably likely to have, a Material Adverse Effect
and will not reasonably likely materially impair the value of
the Consolidated assets of the Borrower and its Consolidated
Restricted Subsidiaries;
(x) Liens on life insurance policies (including the
cash surrender value thereof) securing Indebtedness permitted
by subsection 5.02(a)(v);
(xi) Liens securing Indebtedness of the Borrower and
its Restricted Subsidiaries incurred solely in connection with
the conversion into Financing Leases of operating leases of
the Borrower and its Restricted Subsidiaries that are in
existence on the Restatement Effective Date on the property
which is the subject of
56
such operating lease; provided that such Liens do not at any
time encumber any property other than such property, their
earnings, other related assets having a value which is
immaterial in relation to the value of such property, and the
proceeds of such property and do not secure any other
Indebtedness;
(xii) Liens on property that is substituted for or
replaces comparable property that was theretofore subject to a
Lien permitted to exist under this subsection 5.02(b);
(xiii) Liens on any asset leased by the Borrower or
any of its Restricted Subsidiaries under a lease that is not a
Financing Lease, securing the obligations of the Borrower or
such Restricted Subsidiary thereunder;
(xiv) Liens arising out of the refinancing,
extension, renewal or refunding of any Indebtedness permitted
under subsection 5.02(a) and secured by any Lien permitted by
this subsection 5.02(b); provided that (x) no such Lien is
spread to cover any property other than the property securing
such Indebtedness at the time of such refinancing, extension,
renewal or refunding and (y) the principal amount of such
Indebtedness is not increased to exceed the amount of the
Indebtedness on the Restatement Effective Date;
(xv) purchase money Liens securing the Indebtedness
referred to in Section 5.02(g) solely for the purpose of
financing the acquisition, construction or improvement of
property to be subject to such Liens, or Liens existing on any
such property at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that do not
secure the purchase price), or extensions, renewals or
replacements of any of the foregoing for the same or a lesser
amount; provided, however, no such Lien shall extend to or
cover any property other than the property being acquired,
constructed or improved, or the proceeds or rents thereof, and
no such extension, renewal or replacement shall extend to or
cover any property, or the proceeds or rents thereof, not
theretofore subject to the Lien being extended, renewed or
replaced;
(xvi) Liens on properties of MTC or its Subsidiaries
existing on the MTC Purchase Date; and
(xvii) Liens created subsequent to the MTC Purchase
Date by Mormac and MTL respectively on two certain contracts
with the U.S. Maritime Administration, each relating to
management of nine Ready Reserve Force vessels, and the moneys
due or to become due under and other proceeds of such
contracts.
(c) Limitation on Guaranty Obligations. Create, incur, assume
or suffer to exist any Guaranty Obligation except:
(i) the Guaranty Obligation of the Borrower pursuant
to Article VII, and the Guaranty Obligations of the Guarantors
under the Amended and Restated Subsdiary Guaranty;
57
(ii) the Letters of Credit and other letters of
credit in respect of which reimbursement obligations would be
permitted by subsection 5.02(a)(iv);
(iii) Guaranty Obligations included in Indebtedness
permitted pursuant to subsection 5.02(a);
(iv) Guaranty Obligations of the Borrower or its
Consolidated Restricted Subsidiaries in respect of primary
obligations of the Borrower or its Consolidated Restricted
Subsidiaries otherwise permitted under this Agreement,
provided that Guaranty Obligations in respect of primary
obligations of Restricted Subsidiaries that are not Guarantors
shall not in the aggregate exceed $15,000,000;
(v) Guaranty Obligation of MTC in respect of the
respective obligations of MTL and Mormac under the Loan and
Security Agreements referred to in Section 5.02(a)(ix);
(vi) Guaranty Obligations outstanding on the
Restatement Effective Date and listed on Schedule III and
renewals and extensions of such existing Guaranty Obligations
which do not increase the amount of the primary obligations
guaranteed thereby; and
(vii) other Guaranty Obligations aggregating not in
excess of the lesser of (i) $25,000,000 and (ii) 10% of the
stockholders' equity (as reflected on the most recent
Consolidated Balance Sheet of the Borrower delivered pursuant
hereto), in each case, at any time outstanding.
(d) Limitations on Fundamental Changes. (i) Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease, assign, transfer or otherwise dispose of all or
substantially all of the property, business or assets of the Borrower
and its Restricted Subsidiaries taken as a whole; except that:
(A) any Restricted Subsidiary of the Borrower may be
merged or consolidated with or into the Borrower (provided
that the Borrower shall be the continuing or surviving
corporation) or with or into any one or more Wholly Owned
Subsidiaries of the Borrower (provided that the Wholly Owned
Subsidiary or Subsidiaries shall be the continuing or
surviving corporation and shall be party to the Amended and
Restated Subsdiary Guaranty);
(B) any Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any Wholly Owned
Subsidiary of the Borrower which is a party to the Amended and
Restated Subsdiary Guaranty; and
(C) any Subsidiary which is not a Loan Party may
liquidate, wind up or dissolve;
58
provided, in each case, that no Default shall have occurred and be
continuing at the time of such proposed transaction or would result
therefrom.
(ii) Materially change or depart from the business or
operating activities presently conducted by the Borrower and its
Restricted Subsidiaries taken as a whole.
(e) Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, to any Person
other than the Borrower or a Guarantor ("Asset Dispositions"), except:
(i) Asset Dispositions in the ordinary course of
business;
(ii) Asset Dispositions in the form of the sale or
discount of accounts receivable arising in the ordinary course
of business to the capital construction fund created pursuant
to the Capital Construction Fund Agreement (No. MA-CCF-370)
dated October 21, 1977, as amended between the Borrower and
the United States of America;
(iii) Asset Dispositions permitted by subsection
5.02(d) or subsection 5.02(j);
(iv) Asset Dispositions in respect of the assets
described in Schedule VIII;
(v) Asset Dispositions in any fiscal year for cash
and consideration other than cash having an aggregate value
(as determined in good faith by the Borrower) not in excess of
$25,000,000 net of (a) all legal fees, finder's fees and other
similar fees and commissions paid in connection with such
Asset Dispositions, (b) taxes payable in connection with or as
a result of such Asset Dispositions and (c) other
out-of-pocket costs incurred in connection with such Asset
Dispositions; provided, however, in the case of each of
clauses (a) and (c) above such amounts may be deducted only to
the extent that such amounts so deducted are, at the time of
such Asset Disposition, paid to a Person that is not an
Affiliate of such Person (or, if paid to such an Affiliate, to
the extent the terms of such payment are no more favorable to
such Affiliate than such terms would be in an arm's-length
transaction) and are properly attributable to such transaction
or to the asset that is the subject thereof; and
(vi) Asset Dispositions with respect to any Eligible
Vessel and Barge (each a "Vessel or Barge Disposition") in
compliance with Sections 5.01(k) and 5.01(l).
(f) Limitation on Dividends and Other Payments. Declare or pay
any dividend (other than dividends payable solely in common stock of
the Borrower) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the
59
purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Borrower, whether now
or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or
in obligations of the Borrower or any Subsidiary except for, so long as
after giving effect thereto no Default or Event of Default shall have
occurred and be continuing, (i) common stock repurchases made in
connection with employee stock ownership plans or other employee stock
incentive plans, (ii) the purchase by the Borrower of the Borrower's
Capital Stock from the estate of any shareholder, provided that the
purchase price thereof is paid entirely with the proceeds received by
the Borrower from life insurance maintained by it on the life of such
shareholder, (iii) dividends on the Borrower's Capital Stock, and (iv)
the redemption, in whole or in part, of the Borrower's Class B
Redeemable Preferred Stock outstanding on the Restatement Effective
Date, provided that the aggregate amount expended by the Borrower in
connection with the dividends and payments described in clauses (i)
through (iv) above shall not exceed $10,000,000 in any twelve-month
period.
(g) Limitation on Capital Expenditures. Make any Capital
Expenditures during the period from the Restatement Effective Date
through the Termination Date, other than (without duplication): (i) the
purchase of a maximum of six articulated tugs/barges in a cumulative
amount (including any related assumption of Indebtedness) not to
exceed, for the period beginning August 25, 2000 until (A) June 30,
2002, $130,000,000 and (B) through the Termination Date, $210,000,000,
(ii) since August 25, 2000, the purchase of a maximum of two enhanced
protector-type escort tugs in a cumulative amount (including any
related assumption of Indebtedness) not to exceed $30,000,000, and
(iii) capital expenditures made for purposes other than those described
in clauses (i) and (ii) above in a cumulative amount not to exceed, for
the period beginning August 25, 2000 until (A) September 30, 2003,
$160,000,000 and (B) through the Termination Date, $190,000,000
(including any related assumption of Indebtedness), provided that,
capital expenditures made pursuant to this clause (iii) shall not
exceed $60,000,000 in any calendar year.
(h) Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or
purchase or otherwise acquire any stock, bonds, notes, debentures or
other securities of or any assets constituting a business unit of, or
make any other investment in, any other Person (all the foregoing,
collectively, "Investments"), except:
(i) Investments in the form of extensions of trade
credit in the ordinary course of business;
(ii) Investments in Cash Equivalents;
(iii) Investments in the form of loans and advances
to employees of the Borrower or its Restricted Subsidiaries in
the ordinary course of business and consistent with past
practices, and Investments in the form of loans and advances
to shareholders of the Borrower or trusts or similar estate
planning entities of or for the benefit of any such
shareholder the proceeds of which are used to pay life
insurance premiums on the life of such shareholder;
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(iv) Investments by the Borrower in its Restricted
Subsidiaries and by any Restricted Subsidiary in the Borrower
or in any other Restricted Subsidiary; provided that the
aggregate amount of Investments by the Borrower or any
Material Subsidiary of the Borrower in Restricted Subsidiaries
of the Borrower which are not Guarantors shall not exceed at
any time the sum of (A) (x) $2,500,000 in respect of
Subsidiaries which are Regulated Subsidiaries on the
Restatement Effective Date, (y) $15,000,000 in respect of
Regulated Subsidiaries not in existence on the Restatement
Effective Date and (z) $10,000,000 in respect of all other
non-Guarantor Restricted Subsidiaries plus (B) the aggregate
amount of Investments in such Restricted Subsidiaries of the
Borrower that are not Guarantors made in accordance with the
Borrower's cash management practices in the ordinary course of
business, in each case inclusive of any Investments permitted
pursuant to any other clause of this subsection 5.02(h),
provided, further, that notwithstanding the foregoing proviso,
the Investment by the Borrower and its Subsidiaries in the
shares of common stock issued by MTC shall be permitted;
(v) Investments in the form of notes or securities
received as consideration for sales of assets permitted
pursuant to subsection 5.02(e);
(vi) Investments in Joint Ventures and
non-Consolidated Subsidiaries and Affiliates to the extent
permitted under Section 5.02(m);
(vii) Investments permitted by subsection 5.02(d) or
5.02(g);
(viii) Investments in foreign currencies or otherwise
in time deposits or other securities of foreign Governmental
Authorities or other foreign Persons, if required by the
action of a foreign Governmental Authority or to fund working
capital requirements for the operations of the Borrower or any
Restricted Subsidiary in a foreign country; and
(ix) Investments to the extent not otherwise
prohibited by any other provision of Section 5.02 in the
ordinary course of business in an aggregate amount outstanding
at any time not to exceed $5,000,000.
(i) Transactions with Affiliates. Enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate or any
Joint Venture unless (i) such transaction is otherwise permitted under
this Agreement, (ii) such transaction is in the ordinary course of the
Borrower's or such Restricted Subsidiary's business or (iii) either (x)
such transaction is upon fair and reasonable terms no less favorable to
the Borrower or such Restricted Subsidiary, as the case may be, than it
would obtain in a comparable arm's-length transaction with a Person not
an Affiliate or (y) such transaction taken together with all other such
transactions described in this clause (iii) would not be reasonably
likely to have a material adverse effect on the business, operations,
condition (financial or otherwise), properties or prospects of the
Borrower and the Guarantors taken as a whole.
(j) Sale and Leaseback. Enter into any arrangement with any
Person providing for the leasing by the Borrower or any Restricted
Subsidiary of real or personal property
61
which has been or is to be sold or transferred by the Borrower or such
Restricted Subsidiary to such Person or to any other Person to whom
funds have been or are to be advanced by such Person on the security of
such property or rental obligations of the Borrower or such Restricted
Subsidiary except for (i) any such arrangement permitted by subsection
5.02(a)(vi) and (ii) any such arrangement not constituting a Financing
Lease.
(k) Non-Guarantor Subsidiaries. Create, acquire or permit to
exist any Subsidiary that is not party to the Amended and Restated
Subsdiary Guaranty, except (i) Regulated Subsidiaries, (ii) Joint
Ventures, (iii) any Material Subsidiary that has become party to the
Amended and Restated Subsdiary Guaranty within 60 days after becoming a
Material Subsidiary and (iv) Subsidiaries (other than Regulated
Subsidiaries and Joint Ventures) that are not Material Subsidiaries;
provided that if such Subsidiaries have (x) aggregate Net Assets
greater than $30,000,000 at the end of any fiscal quarter of the
Borrower or (y) aggregate Net Revenue greater than $60,000,000 for a
period of the most recently completed four consecutive fiscal quarters
of the Borrower, one or more of such Subsidiaries shall have become
party to the Amended and Restated Subsdiary Guaranty within 60 days
after such Subsidiaries exceed such aggregate amount of Net Assets or
Net Revenue so that the Subsidiaries not then party to the Amended and
Restated Subsdiary Guaranty do not exceed such aggregate amounts,
provided, that on or prior to the date that is five Business Days
following the Restatement Effective Date, (i) neither MTC or its
Material Subsidiaries shall be required hereunder to become party to
the Amended and Restated Subsdiary Guaranty until Den Norske Bank ASA
shall consent thereto under the terms of that certain Term Loan and
Revolving Credit Facility Agreement dated as of June 17, 1998 between
MTC and Den Norske Bank ASA and (ii) neither MTL or its Material
Subsidiaries, if any, shall be required to become party to the Amended
and Restated Subsdiary Guaranty until Den Norske Bank ASA shall consent
thereto under the terms of the Amended and Restated Term Loan and
Revolving Credit Facility Agreement dated as of June 17, 1998 between
MTL and Den Norske Bank ASA (the "MTC Credit Agreement").
(l) Negative Pledge Agreements. Enter into or suffer to exist
in favor of any Person other than the Agents, the Lenders and the
Issuing Banks any agreement prohibiting the Borrower or any Restricted
Subsidiary from entering into or suffering to exist any agreement that
prohibits or conditions the creation or assumption of any Lien upon any
of its property or assets except those in favor of such Person (any
such agreement, a "Negative Pledge Agreement") unless prior to entering
into or the existence of such Negative Pledge Agreement the Agents, the
Lenders and the Issuing Banks are granted in writing substantially
similar rights.
(m) Joint Ventures. Create, acquire or permit to exist any
Subsidiary that is not a Restricted Subsidiary except any Subsidiary
which is a special purpose corporation, partnership, limited liability
company, trust or estate or other entity created after the Restatement
Effective Date by the Borrower or any Subsidiary of the Borrower and
any Person or Persons other than the Borrower or a Subsidiary of the
Borrower in order to conduct a common business enterprise with such
Person or Persons (each such Subsidiary being a "Joint Venture");
provided that (i) the total Investments by the Loan Parties in all such
Joint Ventures from the "Effective Date" (as defined in the Existing
Credit Agreement) through the Termination Date shall not exceed
$25,000,000 and (ii) within 60
62
days of the creation or acquisition of such Joint Venture the
Administrative Agent shall have received (x) written notice by the
Borrower of the creation or acquisition of such Joint Venture,
including the names of all parties to such Joint Venture, the aggregate
amount of all Investments of the Borrower and any Restricted Subsidiary
which are required to be made in such Joint Venture (including any
Guaranty Obligations in respect thereof) and the percentage ownership
by the Borrower and any Restricted Subsidiary in such Joint Venture and
(y) a certified copy of each material formation, capitalization or
organization agreement of such Joint Venture and each material
shareholder or investor agreement related to the Joint Venture to which
the Borrower or any Restricted Subsidiary is a party.
(n) Accounts Receivable. Create, incur, assume or suffer to
exist any Lien upon any of its accounts receivable arising in
connection with, or in connection with the use of, any Eligible Vessel
or Barge, whether now owned or hereafter acquired, except for the Liens
created under the Collateral Documents.
Section 5.03. Financial Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding other than any
Letter of Credit in respect of which cash collateral has been deposited and is
maintained in accordance with subsection 2.16(i), any Lender shall have any
Commitment hereunder or any Issuing Bank shall have any Letter of Credit
Commitment hereunder, the Borrower shall, unless the Required Lenders otherwise
consent in writing:
(a) Net Debt to EBITDA Ratio. Maintain at all times during
each fiscal year set forth below a ratio of Net Debt to EBITDA not
greater than the ratio set forth below opposite such fiscal year for
each of the fiscal years set below:
Fiscal Year Ratio
2001 6.50:1
2002 6.50:1
2003 6.00:1
2004 6.00:1
(b) Interest Coverage Ratio. Maintain at all times a ratio of
EBITDA to interest expense net of interest income (as reflected on the
most recent Consolidated financial statements of the Borrower delivered
pursuant hereto) not less than 4.0:1.
(c) Leverage Ratio. Maintain at all times a ratio of Net Debt
to stockholders' equity (as reflected on the most recent Consolidated
balance sheet of the Borrower delivered pursuant hereto) not greater
than, for the period from the date hereof until December 31, 2001,
2.25:1 and thereafter, 2.50:1.
Article VI
EVENTS OF DEFAULT
Section 6.01. Events of Default. If any of the following
events shall occur and be continuing:
63
(a) The Borrower shall fail to pay any principal of any Note
when due in accordance with the terms thereof or hereof; or the
Borrower shall fail to pay, or cause to be paid, as the case may be,
any interest on any Note, any fee or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or which is contained
in any certificate or financial statement furnished at any time under
this Agreement shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 5.02 or
Section 5.03 (other than any default under subsection 5.02(b) arising
out of the creation of any non-consensual Lien in violation of such
subsection), to the extent, in the case of any Guarantor, such
Guarantor is required under the Amended and Restated Subsdiary Guaranty
to observe and perform such agreement contained in Section 5.02; or
(d) Any Loan Party shall fail to perform or observe any other
term, content or agreement contained in this Agreement or any other
Loan Document (other than the Ship Mortgages) on its part to be
performed or observed (other than as provided in paragraphs (a) through
(c) of this Section), if such failure shall remain unremedied for 10
days after the earlier of the date on which (i) a Responsible Officer
becomes aware of such failure or (ii) written notice thereof shall have
been given to the Borrower by any Agent or any Lender Party; or
(e) Any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount
payable in respect of any Indebtedness of such Loan Party or such
Subsidiary (as the case may be) that is outstanding in a principal
amount of at least $5,000,000 either individually or in the aggregate
(but excluding Indebtedness outstanding hereunder), when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Indebtedness; or any other
event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Indebtedness or
otherwise to cause, or to permit the holder thereof to cause, such
Indebtedness to mature; or any such Indebtedness shall be declared to
be due and payable or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the
stated maturity thereof; or
(f) (i) Any Loan Party, Regulated Subsidiary or any Material
Subsidiary (to the extent not a Loan Party) shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered
64
with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or any Loan Party, Regulated Subsidiary
or any Material Subsidiary (to the extent not a Loan Party) shall make
a general assignment for the benefit of its creditors; or (ii) there
shall be commenced against any Loan Party, Regulated Subsidiary or any
Material Subsidiary (to the extent not a Loan Party) any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against any Loan Party, Regulated Subsidiary or any Material Subsidiary
(to the extent not a Loan Party) any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or
similar process against all or any substantial part of its assets which
results in the entry of an order for relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 60 days
from the entry thereof; or (iv) any Loan Party, Regulated Subsidiary or
any Material Subsidiary (to the extent not a Loan Party) shall take any
action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii)
above; or (v) any Loan Party, Regulated Subsidiary or any Material
Subsidiary (to the extent not a Loan Party) shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any ERISA Event shall have occurred with respect to a
Plan and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Borrower and the ERISA
Affiliates related to such ERISA Event) exceeds $7,500,000; or (ii) the
Borrower or any ERISA Affiliate shall fail to pay when due any payment
of any Withdrawal Liability to a Multiemployer Plan where the amount of
such Withdrawal Liability, when aggregated with all other amounts
required to be paid to Multiemployer Plans by the Borrower and the
ERISA Affiliates as Withdrawal Liability (determined as of the date of
such notification), exceeds $7,500,000 or requires payments exceeding
$1,500,000 per annum; or (iii) the Borrower or any ERISA Affiliate
shall have been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions of the
Borrower and the ERISA Affiliates to all Multiemployer Plans that are
then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for
the plan years of such Multiemployer Plans immediately preceding the
plan year in which such reorganization or termination occurs by an
amount exceeding $1,500,000, which amount is not paid when due; or
(h) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability of $7,500,000 or more (calculated after deducting therefrom
any amount that will be paid by a recognized protection and indemnity
club that is a member of the International Group Agreement or any
insurer rated at least B++ by A.M. Best Company, or the equivalent
thereof provided by a rating service whose ratings of insurance
companies are internationally recognized, if
65
such insurer has been notified of, and has not disputed the claim made
for payment of, the amount of such judgment or decree) and such
judgments or decrees involving in the aggregate $7,500,000 or more
shall not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof; or
(i) Any non-monetary judgment or order shall be rendered
against the Borrower or any of its Subsidiaries that could reasonably
be expected to have a Material Adverse Effect, and there shall be any
period of 60 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(j) With regard to any Title XI Financing Agreement, (A) any
"Payment Default" shall have occurred with respect to any of the Title
XI Subsidiaries or the Borrower; or (B) any Secretary's Notice (as
defined in, or by reference in, any Title XI Financing Agreement) shall
be issued for any reason; or (C) the Borrower shall be required
pursuant to any stock Subscription Agreement (as defined in, or by
reference in, any Title XI Financing Agreement) to purchase any shares
of or make any cash advances to any Title XI Subsidiaries in an amount,
together with any deposit or pledge amounts described in clause (D) of
this subsection, in excess of $5,000,000; or (D) any Title XI
Subsidiaries or the Borrower shall be required to make any deposit into
any Title XI Reserve Fund or to make any pledge of cash collateral
(whether or not such pledge or deposit is made) or any such deposit or
pledge is made, in an amount, together with any subscription or cash
advance amounts described in clause (C) of this paragraph (j), in
excess of $5,000,000; or
(k) If at any time the Borrower or its Subsidiaries shall
become liable (whether, directly or indirectly, by indemnity or
contribution or otherwise) for remediation and/or environmental
compliance expenses and/or fines, penalties or other charges which, in
the aggregate, has had or is reasonably likely to have a Material
Adverse Effect; or
(l) The Amended and Restated Subsdiary Guaranty or Article VII
hereof shall cease to be in full force and effect, shall be determined
by any court to be void, voidable or unenforceable, or any Loan Party
shall assert any defense to any of its obligations under any Loan
Document to which it is a party or otherwise contest its liability
thereunder, or any such Loan Party shall rescind or revoke (or attempt
to rescind or revoke) any of its obligations under any Loan Document,
whether with respect to future transactions or otherwise;
(m) There shall occur and be continuing an "Event of Default"
as defined in any Ship Mortgage;
(n) A Change in Control shall occur; or
(o) Except as otherwise permitted hereunder, the Secured
Parties shall cease to have a first-priority perfected security
interest in any Collateral;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments and the Letter of Credit Commitments shall
immediately terminate and the Advances hereunder (with accrued
66
interest thereon) and all other amounts owing under this Agreement and the Notes
shall immediately become due and payable, and (B) if such event is any other
Event of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Lenders (or, in the case of an Event of Default
specified in paragraph (a) above, the Majority Lenders), the Administrative
Agent may, or upon the request of the Required Lenders (or, in the case of an
Event of Default specified in paragraph (a) above, the Majority Lenders), the
Administrative Agent shall, by notice to the Borrower, declare the Commitments
and the Letter of Credit Commitments to be terminated forthwith, whereupon the
Commitments and the Letter of Credit Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders (or, in the case of an Event
of Default specified in paragraph (a) above, the Majority Lenders), the
Administrative Agent may, or upon the request of the Required Lenders (or, in
the case of an Event of Default specified in paragraph (a) above, the Majority
Lenders), the Administrative Agent shall, by notice of default to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
Section 6.02. Actions in Respect of the Letters of Credit upon Default.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrower shall at such time deposit in a non-interest
bearing cash collateral account opened by, and under the sole dominion and
control of, the Administrative Agent an amount equal to the aggregate Available
Amount of all Letters of Credit then outstanding, and the Borrower hereby grants
to the Administrative Agent for the benefit of the Agents, the Issuing Banks and
the Lenders a security interest in all funds so deposited to and from time to
time held (in the form of cash, certificates or instruments) in the cash
collateral account and proceeds thereof. The Borrower and the Administrative
Agent shall thereafter enter into documentation reaffirming the grant of the
security interest hereunder and otherwise relating to such cash collateral
account in form and substance satisfactory to the Administrative Agent and the
Borrower. The Administrative Agent shall, at the Borrower's direction and
without assuming any risk of loss thereof, invest the funds in the cash
collateral account in Cash Equivalents for the account of the Borrower. All
interest and other investment gains earned on such investments shall be added to
the cash collateral account as additional collateral security for the prompt and
complete payment when due of the obligations and liabilities of the Borrower and
any Designated Account Party under and in respect of the Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the Notes. If at any time the
Administrative Agent determines that any funds held in such cash collateral
account are subject to any right or claim of any Person other than any Agent,
any Issuing Bank or the Lenders, which right or claim could reasonably have the
effect of reducing the value of such funds to the Issuing Banks and the Lenders,
or that the total amount of such funds is less than the aggregate Available
Amount of all Letters of Credit, the Borrower will, forthwith upon receipt of a
demand by the Administrative Agent, pay to the Administrative Agent, as
additional funds in Dollars to be deposited and held in such cash collateral
account, an amount equal to (a) the amount by which the value of such funds to
the Lenders and the Issuing Banks has been reduced, or (b) the excess of (i)
such aggregate Available Amount over (ii) the total amount of funds, if any,
then held in such cash collateral account, respectively. On or after
67
the date all such Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all other
obligations of the Borrower hereunder and under the Notes then due and payable
shall have been paid in full, the balance, if any, in such cash collateral
account shall be returned to the Borrower.
Article VII
BORROWER GUARANTY
Section 7.01. Guaranty. The Borrower hereby unconditionally
and irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all Obligations of each Designated
Account Party now or hereafter existing under the L/C Related Documents, whether
for reimbursement of drawings under any Letter of Credit, principal, interest,
fees, expenses or otherwise (such Obligations being the "Borrower Guaranteed
Obligations"), and agrees to pay any and all reasonable expenses (including
reasonable counsel fees and expenses) incurred by any Agent, any Issuing Bank or
any Lender in enforcing any rights under the guaranty contained in this Article
VII. Without limiting the generality of the foregoing, the Borrower's liability
shall extend to all amounts that constitute part of the Borrower Guaranteed
Obligations and would be owed by each Designated Account Party to any Agent, any
Issuing Bank or any Lender under the L/C Related Documents but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such Designated Account Party.
Section 7.02. Guaranty Absolute. The Borrower guarantees that
the Borrower Guaranteed Obligations will be paid strictly in accordance with the
terms of the L/C Related Documents, regardless of any law, regulation or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of any Agent, any Issuing Bank or any Lender with respect thereto.
The Obligations of the Borrower under the guaranty contained in this Article VII
are independent of the Borrower Guaranteed Obligations or any other Obligations
of any other Loan Party or Designated Account Party under the L/C Related
Documents, and a separate action or actions may be brought and prosecuted
against the Borrower to enforce the guaranty contained in this Article VII,
irrespective of whether any action is brought against any Designated Account
Party or any other Loan Party or whether any Designated Account Party or any
other Loan Party is joined in any such action or actions. The liability of the
Borrower under the guaranty contained in this Article VII shall be irrevocable,
absolute and unconditional irrespective of, and the Borrower hereby irrevocably
waives, any defenses it may now or hereafter have in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any L/C Related
Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Borrower Guaranteed Obligations
or any other Obligations of any Designated Account Party or any Loan
Party under the L/C Related Documents, or any other amendment or waiver
of or any consent to departure from any L/C Related Document,
including, without limitation, any increase in the Borrower Guaranteed
Obligations resulting from the extension of additional credit to any
Designated Account Party or any of its Subsidiaries or otherwise;
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(c) any taking, exchange, release or non-perfection of any
collateral security, or any taking, release or amendment or waiver of
or consent to departure from any other guaranty, for all or any of the
Borrower Guaranteed Obligations;
(d) any manner of application of collateral security, or
proceeds thereof, to all or any of the Borrower Guaranteed Obligations,
or any manner of sale or other disposition of any collateral security
for all or any of the Borrower Guaranteed Obligations or any other
Obligations of any Designated Account Party or any other Loan Party
under the L/C Related Documents or any other assets of any Designated
Account Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Designated Account Party or any of its
Subsidiaries;
(f) any failure of any Agent, Issuing Bank or Lender to
disclose to any Designated Account Party or the Borrower any
information relating to the financial condition, operations, properties
or prospects of any other Designated Account Party or any other Loan
Party now or in the future known to any Agent, Issuing Bank or Lender
(the Borrower waiving any duty on the part of the Agents, Issuing Banks
or Lenders to disclose such information); or
(g) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Agent, Issuing Bank or Lender that might
otherwise constitute a defense available to, or a discharge of, any
Designated Account Party, the Borrower or any other guarantor or
surety.
The guaranty contained in this Article VII shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Borrower Guaranteed Obligations is rescinded or must otherwise be returned by
any Agent, Issuing Bank or Lender or any other Person upon the insolvency,
bankruptcy or reorganization of the Designated Account Party or any other Loan
Party or otherwise, all as though such payment had not been made.
Section 7.03. Waivers and Acknowledgments. (a) The Borrower
hereby waives promptness, diligence, notice of acceptance and any other notice
with respect to any of the Borrower Guaranteed Obligations and the guaranty
contained in this Article VII and any requirement that any Agent, Issuing Bank
or Lender protect, secure, perfect or insure any Lien or any property subject
thereto or exhaust any right or take any action against any Designated Account
Party or any other Person or any collateral security.
(b) The Borrower hereby waives any right to revoke the
guaranty contained in this Article VII, and acknowledges that the guaranty
contained in this Article VII is continuing in nature and applies to all
Borrower Guaranteed Obligations, whether existing now or in the future.
(c) The Borrower acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in this Section 7.03 are knowingly
made in contemplation of such benefits.
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Section 7.04. Subrogation. The Borrower will not exercise any
rights that it may now or hereafter acquire against any Designated Account Party
or any other insider guarantor that arise from the existence, payment,
performance or enforcement of the Borrower's Obligations under the guaranty
contained in this Article VII or any other L/C Related Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of any Agent, Issuing Bank or Lender against any Designated Account Party
or any other insider guarantor or any collateral security, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from any
Designated Account Party or any other insider guarantor, directly or indirectly,
in cash or other property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right, unless and until all of the
Obligations and all other amounts payable under the guaranty contained in this
Article VII shall have been paid in full in cash, all Letters of Credit shall
have expired or terminated and not have been renewed, all Reimbursement
Obligations shall have been paid in full in cash and the Commitments and the
Letter of Credit Commitments shall have expired or terminated. If any amount
shall be paid to the Borrower in violation of the preceding sentence at any time
prior to the later of the payment in full in cash of the Borrower Guaranteed
Obligations and all other amounts payable under the guaranty contained in this
Article VII and the later of (i) the Termination Date and (ii) the expiration or
termination of all Letters of Credit and the payment in full in cash of all
Reimbursement Obligations, such amount shall be held in trust for the benefit of
the Agents, Issuing Banks and Lenders and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Borrower Guaranteed
Obligations and all other amounts payable under the guaranty contained in this
Article VII, whether matured or unmatured, in accordance with the terms of the
L/C Related Documents, or to be held as collateral security for any Borrower
Guaranteed Obligations or other amounts payable under the guaranty contained in
this Article VII thereafter arising. If (i) the Borrower shall make payment to
any Agent, Issuing Bank or Lender of all or any part of the Borrower Guaranteed
Obligations, (ii) all of the Borrower Guaranteed Obligations and all other
amounts payable under the guaranty contained in this Article VII shall be paid
in full in cash and (iii) the Termination Date shall have occurred, all Letters
of Credit shall have expired or terminated and not been renewed and all
Reimbursement Obligations shall have been paid in full in cash, the Agents,
Issuing Banks and Lenders will, at the Borrower's request and expense, execute
and deliver to the Borrower appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
the Borrower of an interest in the Borrower Guaranteed Obligations resulting
from such payment by the Borrower.
Section 7.05. Continuing Guaranty. The guaranty contained in
this Article VII is a continuing guaranty and shall (a) remain in full force and
effect until the later of the payment in full in cash of the Borrower Guaranteed
Obligations and all other amounts payable under the guaranty contained in this
Article VII and the later of (i) the Termination Date and (ii) the expiration or
termination of all Letters of Credit and the payment in full in cash of all
Reimbursement Obligations, (b) be binding upon the Borrower, its successors and
assigns and (c) inure to the benefit of and be enforceable by the Agents,
Issuing Banks and Lenders and their successors, transferees and assigns.
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Article VIII
THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE CO-AGENT
Section 8.01. Authorization and Action. Each Lender (in its
capacity as a Lender and, if applicable, an Issuing Bank or Swing Line Bank)
hereby appoints and authorizes the Administrative Agent and the Collateral
Agent, respectively, to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent and the Collateral Agent, respectively, by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders (or Majority Lenders, as appropriate), and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that no Agent shall be required to take any action that
exposes any of them to personal liability or that is contrary to this Agreement
or applicable law. Each Agent agrees to give to each Lender prompt notice of
each notice given to it by the Borrower pursuant to the terms of this Agreement.
Section 8.02. Agent's Reliance, Etc. Neither any Agent nor any
of their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(i) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment and Acceptance entered
into by the Lender that is the payee of such Note, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 9.07; (ii) may consult with legal
counsel (including counsel for any Loan Party), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (iii) makes no warranty or representation to
any Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in or in connection
with any Loan Document; (iv) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of any Loan Document on the part of any Loan Party (other than the delivery by
the Loan Parties of items purporting to be deliveries by the Loan Parties
pursuant to Section 3.01(a)) or to inspect the property (including the books and
records) of any Loan Party; (v) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (vi) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier)
believed by it to be genuine and signed or sent by the proper party or parties.
Section 8.03. CUSA and Affiliates. With respect to its
Commitment and Letter of Credit Commitment, the Advances made by it and the Note
issued to it, CUSA shall have the same rights and powers under this Agreement as
any other Lender and may exercise the same as
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though it were not an Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include CUSA in its individual capacity. CUSA and
its Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of their respective
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if CUSA were not an Agent and without
any duty to account therefor to the Lenders.
Section 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
Section 8.05. Indemnification. Each Lender severally agrees to
indemnify the Administrative Agent and the Collateral Agent (to the extent not
promptly reimbursed by the Borrower) from and against such Lender's ratable
share of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents, provided that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct as found in a
final non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent and the Collateral Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by such 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, the Loan Documents, to the extent that such Agent is not
reimbursed for such expenses by the Borrower. For purposes of this Section 8.05,
the Lenders' respective ratable shares of any amount shall be determined, at any
time, according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lenders, (b) their
respective Pro Rata Share of the aggregate Available Amount of all Letters of
Credit outstanding at such time and (c) their respective Unused Commitments at
such time; provided that the aggregate principal amount of Swing Line Advances
owing to the Swing Line Bank shall be considered to be owed to the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to reimburse any Agent promptly upon demand for its ratable share of any
amount required to be paid by the Lenders to such Agent as provided herein shall
not relieve any other Lender of its obligation hereunder to reimburse such Agent
for its ratable share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse such Agent for such other Lender's
ratable share of such amount. Without prejudice to the survival of any other
agreement of any Lender hereunder the agreement and obligations of each Lender
contained in this Section 8.05 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the other Loan
Documents.
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Section 8.06. Successor Agents. The Administrative Agent or
Collateral Agent, as the case may be, may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed from such
capacity as an Agent at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Administrative Agent or Collateral Agent, as the case may
be. If no successor Administrative Agent or Collateral Agent, as the case may
be, shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent or Collateral Agent, as the case may be. A successor Agent
shall be a Lender, or if no Lender will accept appointment as such successor
Agent, the successor Agent shall be an Eligible Assignee and a commercial bank
organized under the laws of the United States of America or of any state thereof
and having a combined capital and surplus of at least $250,000,000. Upon the
acceptance of any appointment as Administrative Agent or Collateral Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Administrative Agent or Collateral Agent, as the case may be,
and the retiring Agent shall be discharged from its duties and obligations under
the Loan Documents. If within 45 days after written notice is given of the
retiring Agent's resignation or removal under this Section 8.06 no successor
Agent shall have been appointed and shall have accepted such appointment, then
on such 45th day (a) retiring Agent's resignation or removal shall become
effective, (b) the retiring Agent shall thereupon be discharged from its duties
and obligations under the Loan Documents and (c) the Required Lenders shall
thereafter perform all duties of the retiring Agent under the Loan Documents
until such time, if any, as Required Lenders appoint a successor Agent as
provided above. After any retiring Agent's resignation or removal hereunder as
Administrative Agent or Collateral Agent, as the case may be, the provisions of
this Article VIII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Administrative Agent or Collateral Agent, as the
case may be, under the Loan Documents.
Article IX
MISCELLANEOUS
Section 9.01. Amendments. No amendment or waiver of any
provision of any Loan Document, nor consent to any departure by any Loan Party
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders affected by such amendment, waiver or
comment, do any of the following: (a) waive any of the conditions specified in
Section 3.01, (b) increase the Commitments of the Lenders or subject the Lenders
to any additional obligations, (c) reduce the principal of, or interest on, the
Notes, any Reimbursement Obligation or any fees or other amounts payable
hereunder (provided that any Lender may waive, for itself, the timely payment of
any amount owed to it arising from any claim by such Lender in respect of any
indemnity obligation of the Borrower to such Lender pursuant to Section 2.10,
2.11 or 2.13), (d) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Notes or of the aggregate Available Amount of outstanding
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Letters of Credit, or the number of Lenders, that in each case shall be required
for the Lenders or any of them to take any action hereunder, (f) reduce or limit
the obligations of any Guarantor under Section 1 of the Amended and Restated
Subsdiary Guaranty or of the Borrower under Section 7.01 or otherwise limit any
Guarantor's or the Borrower's respective liability with respect to the
Obligations owing to the Agents, the Lenders and the Issuing Banks, (g) amend
this Section 9.01 or (h) release all or substantially all of any cash collateral
securing Reimbursement Obligations under Letters of Credit, except to the extent
permitted by Section 2.16(i) in respect of Excess Amounts described therein; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by each Issuing Bank or the Swing Line Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Issuing Banks or the Swing Line Bank (in their respective
capacities as Issuing Banks or Swing Line Bank), as the case may be, under this
Agreement; provided further that no amendment, waiver or consent shall, unless
in writing and signed by the Administrative Agent or the Collateral Agent, as
the case may be, in addition to the Lenders required above to take such action,
affect the rights or duties of the Administrative Agent or Collateral Agent in
its capacity as such Agent, under this Agreement or any Note.
Section 9.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier)
and sent by a prepaid nationally recognized overnight courier, telecopied, or
delivered, if to the Borrower, at its address at 000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Vice President and Treasurer; if
to any Guarantor, c/o the Borrower at the foregoing address; if to any Initial
Lender, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender; if to the
Administrative Agent or Collateral Agent, at its address at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxx; if to any Issuing Bank, at its
Notice Office specified opposite its name on Schedule I hereto; or, as to the
Borrower or any Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, sent by a nationally recognized overnight courier, or
telecopied, be effective when deposited in the mails, delivered to such courier,
or telecopied, respectively, except that notices and communications to the
Administrative pursuant to Article II, III or VIII shall not be effective until
received by the Administrative Agent, as the case may be. Delivery by telecopier
of an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
Section 9.03. No Waiver; Remedies. No failure on the part of
any Lender, any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 9.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all reasonable out-of-pocket costs and expenses of each Agent in
connection with the preparation, execution, delivery, administration,
modification and amendment of any Loan Document and the other documents to be
delivered hereunder, including, without limitation, (i)
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all reasonable due diligence, collateral review, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses, (ii) the reasonable fees and expenses of counsel
for the Agents with respect thereto and with respect to advising the Agents as
to their respective rights and responsibilities under the Loan Documents and
(iii) all reasonable expenses (including reasonable fees and expenses of
counsel) of the Administrative Agent in connection with any transaction pursuant
to Section 9.07(i). The Borrower further agrees to pay on demand all reasonable
costs and expenses of the Agents and the Lenders, if any (including, without
limitation, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
the Loan Documents and the other documents to be delivered hereunder and
thereunder, including, without limitation, reasonable fees and expenses of
counsel for each Agent and each Lender in connection with the enforcement of
rights under this Section 9.04(a).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, Collateral Agent and each Lender and each of their
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") from and against any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the Revolving Credit Facility, the Loan Documents, any of
the transactions contemplated herein or therein or the actual or proposed use of
the proceeds of the Advances or the Letters of Credit or (ii) the actual or
alleged presence of Hazardous Materials on any property of the Borrower or any
of its Subsidiaries, any Environmental Action relating in any way to the
Borrower or any of its Subsidiaries or the violation of or noncompliance with
any Environmental Laws applicable to the real property owned or operated (within
the meaning of any applicable Environmental Law) by the Borrower or any of its
Subsidiaries, or any orders, requirements or demands of Governmental Authorities
related thereto, in each case whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any Indemnified Party
is otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent such claim, damage, loss, liability
or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. The Borrower also agrees not to assert any claim against any
Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Revolving Credit Facility, the actual or
proposed use of the proceeds of the Advances or the Letters of Credit, the Loan
Documents or any of the transactions contemplated thereby.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to Section 2.07(d) or (e), 2.09 or
2.11, acceleration of the maturity of the Notes pursuant to Section 6.01 or for
any other reason or by an Eligible Assignee to a Lender other than on the last
day of the Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Borrower pursuant to
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Section 9.07(a) or by addition of an Additional Lender under Section 9.07(i),
the Borrower shall, upon demand by such Lender (with a copy of such demand to
the Administrative Agent), pay to the Administrative Agent for the account of
such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any loss (including loss
of anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance.
(d) If any Loan Party fails to pay when due any cost, expenses
or other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and Indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender in
its sole discretion.
(e) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.10, 2.13 and 9.04 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the Notes.
Section 9.05. Right of Set-off. Each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender or such Affiliate to or for
the credit or the account of the Borrower against any and all of the obligations
of the Borrower now or hereafter existing under this Agreement and the Note or
Notes held by such Lender then due and payable. Each Lender agrees promptly to
notify the Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section are
in addition to, and not in limitation of, other rights and remedies (including,
without limitation, other rights of set-off) that such Lender and its Affiliates
may have.
Section 9.06. Binding Effect. This Agreement shall become
effective (other than the Lenders' obligations under Section 2.01 and Section
2.16, which shall only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been executed by the
Borrower and each Agent and when the Administrative Agent shall have been
notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, each
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
Section 9.07. Assignments and Participations. (a) Each Lender,
with the consent of the Borrower, each Agent and each Issuing Bank, may and, in
the case of a Lender if demanded by the Borrower (following a demand by such
Lender pursuant to Section 2.10 or 2.13) upon at least 5 Business Days' notice
to such Lender and the Administrative Agent, will assign to one or more Persons
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment or Commitments, the
Advances owing to it and the Note or Notes held by it); provided, however, that
(i) each such assignment shall be of a constant, and not a varying, percentage
of all rights and obligations under and in respect of the Revolving Credit
Facility, (ii) except in the case of an assignment to a Person that,
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immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) except in the case of
an assignment of all of a Lender's rights and obligations under this Agreement,
the remaining Commitment of the assigning Lender shall in no event be less than
$10,000,000, (iv) each such assignment shall be to an Eligible Assignee, (v)
each such assignment made as a result of a demand by the Borrower pursuant to
this Section 9.07(a) shall be arranged by the Borrower after consultation with
the Administrative Agent and shall be either an assignment of all of the rights
and obligations of the assigning Lender under this Agreement or an assignment of
a portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (vi) no Lender shall
be obligated to make any such assignment as a result of a demand by the Borrower
pursuant to this Section 9.07(a) unless and until such Lender shall have
received one or more payments from either the Borrower or one or more Eligible
Assignees in an aggregate amount at least equal to the aggregate outstanding
principal amount of the Advances owing to such Lender, together with accrued
interest thereon to the date of payment of such principal amount and all other
amounts then due and payable to such Lender under this Agreement and (vii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note subject to such assignment and a processing
and recordation fee of $2,500; provided further that if such assignment is to an
Eligible Assignee which is a direct or indirect wholly owned Subsidiary of any
Lender or the controlling corporation of such Lender, no consent of the Borrower
shall be required for such assignment. Upon such execution, delivery, acceptance
and recording, from and after the effective date specified in each Assignment
and Acceptance, (x) 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, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) Each Issuing Bank may assign to one or more Lenders or
Affiliates of a Lender all or a portion of its rights and obligations under the
undrawn portion of its Letter of Credit Commitment at any time; provided,
however, that (i) except in the case of an assignment to a Person that
immediately prior to such assignment was an Issuing Bank or an assignment of all
of an Issuing Bank's rights and obligations under this Agreement, the amount of
the Letter of Credit Commitment of the assigning Issuing Bank being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof,
(ii) except in the case of an assignment of all of an Issuing Bank's rights and
obligations under this Agreement, the remaining commitment of the assigning
Issuing Bank shall in no event be less than $5,000,000, (iii) each such
assignment shall be to an Eligible Assignee and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for
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its acceptance and recording in the Register, an Assignment and Acceptance,
together with a processing and recordation fee of $2,500.
(c) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any other instrument or document
furnished pursuant thereto; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Loan Party or the performance or observance by any Loan Party
of any of its respective obligations under the Loan Documents or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes each Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Loan Documents as are delegated to such Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agents and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower, any Agent or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with the forms such assignee is required to deliver pursuant
to subsection 2.13(e) and any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice (or, if later, the effective date of the
transfer), the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note a new Note to the
order of such Eligible Assignee in an amount equal to the Commitment assumed by
it pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a
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new Note to the order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit A
hereto.
(f) Each Lender may sell participations to one or more banks
or other entities (other than any Loan Party or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, each Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure by
any Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Notes or any fees or
other amounts payable hereunder (to the extent such participant would be
entitled to share therein), in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(g) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
Section 9.08. Release of Collateral. Upon the sale, lease,
transfer or other disposition of any item of Collateral of any Loan Party in
accordance with the terms of the Loan Documents, the Collateral Agent will, at
the Borrower's expense, execute and deliver to such Loan Party such documents as
such Loan Party may reasonably request to evidence the release of such item of
Collateral from the assignment and security interest granted under the
Collateral Documents in accordance with the terms of the Loan Documents;
provided that if after giving effect to the release of such item of Collateral,
the aggregate amount of Collateral released from the assignment and security
interest granted under the Collateral Documents during the period from 90 days
prior to the date of such release to the date of such release would exceed
$5,000,000 (as determined on the basis of appraisals and certificates provided
to the Collateral
79
Agent at its request by the Borrower in connection with such Collateral), the
Collateral Agent shall not execute and deliver to such Loan Party such documents
as described above without the prior verbal or written consent of the Required
Lenders.
Section 9.09. Certain Changes in GAAP. If the Borrower
defaults in the performance of any of its covenants hereunder as a sole and
direct result of a change in GAAP, the Borrower and the Agents shall enter into
good faith negotiations with a view towards agreeing upon an amendment to this
Agreement (acceptable to the Borrower, the Agents and the Required Lenders)
within thirty days from the date of such change in GAAP, the effect of which
amendment is to amend the ratios and amounts contained in such covenants or in
the definitions related thereto, as the case may be, and the method of
computation thereof, so that the Borrower and the Lenders are in the same
position as if such change in GAAP had not occurred. During such thirty-day
period of good faith negotiations a default of the type referred to in the
preceding sentence shall not constitute a Default or an Event of Default
hereunder. Until such amendment shall become effective and in any event if the
Borrower, the Agents and the Required Lenders fail to execute such amendment
within such thirty day period of good faith negotiations, all covenant
compliance determinations under this Agreement shall, from and after the date of
such change in GAAP, continue to be made in accordance with GAAP in effect prior
to such change, the Borrower shall provide to the Lenders such information as
they may reasonably request to enable them to verify such compliance in
accordance with such GAAP and the default referred to in the first sentence of
this Section 9.08 shall not constitute a Default or an Event of Default
hereunder.
Section 9.10. Confidentiality. No Agent nor any Lender shall
disclose any Confidential Information to any other Person without the consent of
the Borrower, other than (a) to such Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and, as contemplated
by Section 9.07(g), to actual or prospective assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
Section 9.11. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
Section 9.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 9.13. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document to which it is a party, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in
80
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to any Loan Document in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to any Loan Document to which it
is a party in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
Section 9.14. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lenders hereby irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to the Loan Documents, the Advances, the
Letters of Credit or the actions of any Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XXXXXXX MARITIME CORPORATION
By
------------------------------------
Title:
CITICORP USA, INC., as Administrative
Agent and Collateral Agent
By
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Title:
82
Initial Lenders
CITIBANK, N.A., as Initial Issuing Bank,
Swing Line Bank and as Initial Lender
By
---------------------------------------
Title:
CITICORP USA, INC.
By
---------------------------------------
Title:
CHRISTIANIA BANK OG KREDITKASSE ASA,
NEW YORK BRANCH
By
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Title:
83
DEN NORSKE BANK ASA
By
----------------------------------------
Title:
00
XXXXXXXXXX XXXXXXXXX-XXXXXXXX XXXXXXXXXXXX
By
-----------------------------------------
Title:
85
NEDSHIP BANK N.V.
By
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Title:
