================================================================================
CREDIT AND SECURITY AGREEMENT
Dated as of November 20, 2001
among
MARITRANS INC.
and
THE OTHER BORROWERS SIGNATORY HERETO
as Borrowers,
THE LENDERS SIGNATORY HERETO
as Lenders,
and
MELLON BANK, N.A.
as
Administrative Agent,
Collateral Agent and Lender
and
FLEET NATIONAL BANK
as
Syndication Agent
================================================================================
-i-
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITION OF TERMS.............................................................................2
SECTION 1.1 CERTAIN DEFINITIONS.............................................................................2
SECTION 1.2 ACCOUNTING TERMS AND DEFINITIONS...............................................................21
SECTION 1.3 MISCELLANEOUS..................................................................................21
ARTICLE II LOANS AND LETTERS OF CREDIT....................................................................22
SECTION 2.1 LOAN AND LETTER OF CREDIT COMMITMENTS AND DOLLAR LIMITS........................................22
SECTION 2.2 LETTERS OF CREDIT..............................................................................23
SECTION 2.3 ADVANCES.......................................................................................27
SECTION 2.4 INTEREST RATES.................................................................................29
SECTION 2.5 DETERMINATION OF LIBOR MARGIN; QUARTERLY COMPLIANCE CERTIFICATES...............................31
SECTION 2.6 DETERMINATION OF RATES AND LIBOR MARGIN........................................................31
SECTION 2.7 INTEREST.......................................................................................32
SECTION 2.8 PREPAYMENT OF THE LOAN.........................................................................32
SECTION 2.9 PAYMENT OF LOAN PRINCIPAL......................................................................33
SECTION 2.10 ADJUSTED LIBOR RATE UNASCERTAINABLE, ADJUSTED LIBOR RATE IMPRACTICABLE, AND LIBOR RATE INTEREST
PERIOD UNAVAILABLE.............................................................................34
SECTION 2.11 FEES...........................................................................................35
SECTION 2.12 ADDITIONAL COMPENSATION; CHANGED CIRCUMSTANCES; CAPITAL ADEQUACY...............................36
SECTION 2.13 PAYMENTS BY THE BORROWERS IN GENERAL...........................................................39
SECTION 2.14 SPECIAL PROVISIONS REGARDING CERTAIN OBLIGATIONS OF THE BORROWERS..............................41
ARTICLE III CONDITIONS TO LOANS; CLOSING; FUNDING..........................................................42
SECTION 3.1 CONDITIONS PRECEDENT TO THE LOANS..............................................................42
SECTION 3.2 CLOSING........................................................................................44
ARTICLE IV COLLATERAL; GRANTS OF LIENS AND SECURITY INTERESTS.............................................44
-
SECTION 4.1 GRANT OF LIENS AND SECURITY INTERESTS..........................................................44
SECTION 4.2 REPRESENTATION AND WARRANTIES WITH RESPECT TO COLLATERAL.......................................45
SECTION 4.3 COVENANTS WITH RESPECT TO COLLATERAL...........................................................46
SECTION 4.4 VERIFICATION OF COLLATERAL.....................................................................47
SECTION 4.5 NOTIFICATION AND PAYMENTS......................................................................47
SECTION 4.6 MORTGAGES ON CERTAIN ADDITIONAL VESSELS........................................................48
SECTION 4.7 RELEASE OF CERTAIN VESSELS AND BORROWERS.......................................................48
SECTION 4.8 UPDATED APPRAISALS.............................................................................49
ARTICLE V REPRESENTATIONS AND WARRANTIES.................................................................49
SECTION 5.1 ORGANIZATION, AUTHORITY, AND QUALIFICATION.....................................................49
SECTION 5.2 LEGAL NAME; TAX IDENTIFICATION NUMBERS.........................................................49
SECTION 5.3 SUBSIDIARIES...................................................................................50
SECTION 5.4 FINANCIAL STATEMENTS...........................................................................50
SECTION 5.5 DEFAULT........................................................................................50
SECTION 5.6 AUTHORIZATION AND COMPLIANCE WITH LAWS AND MATERIAL AGREEMENTS.................................50
SECTION 5.7 LITIGATION AND JUDGMENTS.......................................................................51
SECTION 5.8 DEBT...........................................................................................51
SECTION 5.9 OWNERSHIP OF PROPERTIES; LIENS.................................................................51
-ii-
SECTION 5.10 USE OF PROCEEDS; MARGIN SECURITIES.............................................................51
SECTION 5.11 TAXES..........................................................................................51
SECTION 5.12 ERISA..........................................................................................52
SECTION 5.13 CONSENTS.......................................................................................52
SECTION 5.14 NATURE OF OBLIGATIONS..........................................................................52
SECTION 5.15 SECURITIES LAWS................................................................................53
SECTION 5.16 DISCLOSURE OF OTHER FACTS......................................................................53
SECTION 5.17 GENUINENESS OF WRITINGS........................................................................53
SECTION 5.18 INVESTMENT COMPANY ACT.........................................................................53
SECTION 5.19 COMPLIANCE WITH LAWS...........................................................................53
SECTION 5.20 ENVIRONMENTAL MATTERS..........................................................................53
SECTION 5.21 REPRESENTATIONS AND WARRANTIES REGARDING EACH VESSEL...........................................54
SECTION 5.22 LOCATIONS......................................................................................54
SECTION 5.23 INTERSTATE COMMERCE ACT........................................................................55
SECTION 5.24 ABSENCE OF DEBT OFFERINGS......................................................................55
SECTION 5.25 DIVIDENDS......................................................................................55
SECTION 5.26 INTELLECTUAL PROPERTY..........................................................................55
ARTICLE VI COVENANTS AND CONTINUING AGREEMENTS............................................................55
SECTION 6.1 AFFIRMATIVE COVENANTS..........................................................................55
SECTION 6.2 NEGATIVE COVENANTS.............................................................................60
SECTION 6.3 PAYMENT OF LIENS...............................................................................63
SECTION 6.4 INSURANCE......................................................................................64
SECTION 6.5 CASUALTY OR DAMAGE TO INSURED PROPERTY.........................................................69
ARTICLE VII EVENTS OF DEFAULT..............................................................................69
SECTION 7.1 EVENTS OF DEFAULT..............................................................................69
ARTICLE VIII REMEDIES.......................................................................................72
SECTION 8.1 OCCURRENCE OF EVENT OF DEFAULT.................................................................72
SECTION 8.2 WARRANT OF ATTORNEY TO CONFESS JUDGMENT........................................................72
SECTION 8.3 WAIVERS........................................................................................73
SECTION 8.4 APPLICATION OF PROCEEDS........................................................................73
SECTION 8.5 CUMULATIVE RIGHTS..............................................................................73
SECTION 8.6 EXPENDITURES BY LENDERS AND AGENTS.............................................................73
ARTICLE IX AGENTS, RELATION OF LENDERS, ASSIGNMENTS AND
PARTICIPATIONS.................................................................................73
SECTION 9.1 ADMINISTRATIVE AGENT AND COLLATERAL AGENT......................................................73
SECTION 9.2 PRO RATA SHARING...............................................................................74
SECTION 9.3 SETOFF.........................................................................................75
SECTION 9.4 APPROVALS......................................................................................75
SECTION 9.5 EXCULPATION....................................................................................76
SECTION 9.6 INDEMNIFICATION................................................................................76
SECTION 9.7 ADMINISTRATIVE AGENT AND COLLATERAL AGENT AS LENDERS...........................................77
SECTION 9.8 NOTICE OF TRANSFER; RESIGNATION; SUCCESSOR AGENTS..............................................77
SECTION 9.9 CREDIT DECISION; AGENTS NOT TRUSTEES...........................................................78
SECTION 9.10 ASSIGNMENTS AND PARTICIPATION; TERMINATION.....................................................78
-iii-
ARTICLE X MISCELLANEOUS..................................................................................81
SECTION 10.1 WAIVER.........................................................................................81
SECTION 10.2 BENEFIT........................................................................................81
SECTION 10.3 SURVIVAL OF REPRESENTATIONS, COVENANTS AND WARRANTIES..........................................81
SECTION 10.4 NOTICES........................................................................................82
SECTION 10.5 GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE...............................................82
SECTION 10.6 WAIVER OF JURY TRIAL...........................................................................83
SECTION 10.7 SEVERABILITY...................................................................................83
SECTION 10.8 EFFECT OF WAIVER...............................................................................83
SECTION 10.9 COUNTERPARTS...................................................................................83
SECTION 10.10 INVESTMENT REPRESENTATION......................................................................84
SECTION 10.11 FURTHER ASSURANCES.............................................................................84
SECTION 10.12 EXPENSES AND LEGAL FEES........................................................................84
SECTION 10.13 INDEMNITY......................................................................................84
EXHIBITS
--------
EXHIBIT A - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT B - FORM OF BORROWING NOTICE
EXHIBIT C - FORM OF INTEREST RATE SELECTION NOTICE
EXHIBIT D - FORM OF NOTE
EXHIBIT E - FORM OF QUARTERLY COMPLIANCE CERTIFICATE
EXHIBIT F - FORM OF NOTICE OF CONVERSION/CONTINUATION
SCHEDULES
---------
SCHEDULE A - PERCENTAGE INTERESTS AND SEPARATE COMMITMENT
SCHEDULE 5.1 - ENTITY TYPE AND ORGANIZATION NUMBER
SCHEDULE 5.2 - LEGAL NAME
SCHEDULE 5.3 - SUBSIDIARIES
SCHEDULE 5.4 - MATERIAL ADVERSE CHANGE
SCHEDULE 5.7 - LITIGATION
SCHEDULE 5.8 - EXISTING DEBT
SCHEDULE 5.9 - LIST OF VESSELS
SCHEDULE 5.11 - TAXES
SCHEDULE 5.16 - DISCLOSURE OF OTHER FACTS
SCHEDULE 5.21 - LIENS
SCHEDULE 5.22 - LOCATIONS
SCHEDULE 5.26 - INTELLECTUAL PROPERTY
SCHEDULE 6.4(A)(i) INSURANCE
-iv-
CREDIT AND SECURITY AGREEMENT
THIS CREDIT AND SECURITY AGREEMENT (the "Agreement") is made and
entered into as of November 20, 2001 by and among MARITRANS INC., a Delaware
corporation ("Maritrans"), each of the other Borrowers whose names appear on the
signature pages of this Agreement (individually, including without limitation
Maritrans, a "Borrower" and collectively, the "Borrowers"), MELLON BANK, N.A., a
national banking association organized and existing under the laws of the United
States of America ("Mellon"), in the capacities of Administrative Agent and
Collateral Agent hereunder and also in its individual capacity as a "Lender"
hereunder, and each of the other lenders whose names appear on the signature
pages of this Agreement or, if applicable, in the Register (each a "Lender" and,
collectively, the "Lenders").
Background:
A. The Borrowers have requested the Lenders to enter into this
Agreement to provide a $40,000,000 revolving credit facility and a $45,000,000
standby/term credit facility for the respective purposes and on the respective
terms and conditions set forth in this Agreement.
B. The Borrowers have agreed to grant first preferred ship mortgages
and first priority security interests in the "Vessels" and other "Collateral"
referred to below to secure all of the "Obligations" of the Borrowers, all as
more fully described and defined in this Agreement.
C. Each of the Lenders has agreed severally, and not jointly, to
provide to the Borrowers a share of each of the Loans equal to such Lender's
Percentage Interest, up to the amount of such Lender's Separate Commitment, upon
the terms and conditions set forth herein.
D. The Lenders have requested the Administrative Agent and the
Collateral Agent, and the Administrative Agent and the Collateral Agent have
agreed, to act on behalf of the Lenders in accordance with the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, the Borrowers, the Lenders, the Administrative Agent and
the Collateral Agent hereby agree among themselves as follows:
ARTICLE I
Definition of Terms
Section 1.1 Certain Definitions. As used in this Agreement, the
following terms shall have the respective meanings indicated below:
"Account Debtor" shall have the meaning set forth in Section 4.2.
"Additional Vessels" means any tankers, tugs, barges, ships or other
vessels not subject to a Transaction Lien on the Closing Date.
"Adjusted LIBOR Rate" means, with respect to each proposed LIBOR Rate
Interest Period, the rate per annum determined by the Administrative Agent by
(a) dividing (i) the LIBOR Rate by (ii) a number equal to 1.00 minus the
Eurodollar Reserve Percentage (as defined below, but only to the extent reserves
are incurred), and then (b) adding the result obtained in (a) to the LIBOR
Margin for LIBOR Rate Advances. The "Adjusted LIBOR Rate" may also be expressed
by the following formula:
Adjusted LIBOR Rate = [ LIBOR Rate ] + LIBOR Margin
----------------------------------------
[1.00 - Eurodollar Reserve Percentage]
"Administrative Agent" means Mellon and its successors and assigns from
time to time in such capacity, as more fully described in this Agreement.
"Administrative Agent Office" means the office of the Administrative
Agent at Mellon Gateway Center, 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxxxxxx 00000, or any other office of the Administrative Agent or an
affiliate of the Administrative Agent as such office is hereafter designated
from time to time by the Administrative Agent through notice to the Borrowers.
"Advance" means any advance by a Lender, through the Administrative
Agent, of all or any portion of proceeds of either Loan, including both initial
advances and subsequent advances made before or after one or more repayments. No
Advance shall be, in the aggregate, for less than $1,000,000.00.
"Affiliate" of any Person means any Person which directly or
indirectly, controls, is controlled by or is under common control with, such
Person.
"Affiliate Obligations" shall have the meaning set forth in Section
2.13(c).
"Affiliated Obligee" shall have the meaning set forth in Section
2.13(c).
"Affiliated Obligor" shall have the meaning set forth in Section
2.13(c).
"Agents" means, collectively, the Administrative Agent and the
Collateral Agent.
"Agreement" means, collectively, this Credit Agreement and all of the
Exhibits and Schedules hereto, as the same may be amended or supplemented from
time to time.
"Aggregate Commitment" shall have the meaning set forth in Section
2.1(a).
"Aggregate Letter of Credit Commitment" shall have the meaning set
forth in Section 2.1(d).
"Applicant Borrowers" shall have the meaning set forth in Section
2.2(a).
-2-
"Application and Agreement for Letter of Credit" means and includes,
collectively, the applications and agreements for Letters of Credit, or similar
documentation, if any, executed by various Borrowers from time to time and
delivered to the Administrative Agent to support the issuance of Letters of
Credit, in form and substance acceptable to the Administrative Agent, in its
sole discretion.
"Appraisal" means a hull valuation report and appraisal satisfactory to
the Collateral Agent and addressed to the Collateral Agent, provided by a
professional valuation consultant or appraiser satisfactory to the Collateral
Agent, setting forth the full market value of each Vessel, in such form and
methodology consistent with the Appraisal Report dated September 4, 2001
performed by Marcon International, Inc.
"Appurtenances" shall have the meaning set forth in Section 4.1(d).
"Assignment and Acceptance" shall mean an Assignment and Acceptance in
the form attached hereto as Exhibit A.
"Audited Date" shall have the meaning set forth in Section 5.4.
"Authorized Financial Officer" means the Chairman of the Board of
Directors, President, Chief Financial Officer, Treasurer, Assistant Treasurer or
Controller, from time to time, of a Borrower. The Lenders and the Agents shall
have no duty to verify the identity of any person giving telephonic notice or
instructions who represents himself or herself to be an Authorized Financial
Officer, or to examine for genuineness any signature purporting to be the
signature of an Authorized Financial Officer.
"Base Rate" means, for any day, the rate per annum equal to the Prime
Rate in effect on such day. Any change in the Base Rate due to a change in the
Prime Rate shall be effective on the effective date of such change in the Prime
Rate.
"Base Rate Interest Payment Date" shall have the meaning set forth in
Section 2.7(b).
"Base Rate Interest Period" means any period that does not extend
beyond the Maturity Date.
"Base Rate Portion" means, at any time of reference, any portion,
including the whole, of a Loan bearing interest based on the Base Rate.
"Borrower" means each of Maritrans and each corporation whose name
appears on the signature pages of this Agreement as a Borrower attached hereto,
or such other Company as may subsequently become a "Borrower" pursuant to the
terms of this Agreement, and "Borrowers" means all of them.
-3-
"Borrowing Notice" means a written notice as provided in Sections
2.3(a) and 2.3(d) substantially in the form of Exhibit B attached hereto and
made part hereof, appropriately filled in and signed on behalf of the Borrowers.
"Breakage Costs" shall have the meaning set forth in Section 2.9(f).
"Business Day" means a day other than a Saturday, Sunday, or legal
holiday or a day on which banking institutions doing business in the City of
Philadelphia or the Administrative Agent, the Collateral Agent or any Lender is
authorized or required to close.
"Capital Expenditures" means, for any period, the aggregate of all
expenditures of the Company during such period on account of property, plant,
equipment or similar fixed assets, which, in accordance with GAAP, are required
to be included or reflected in the Consolidated balance sheet of the Company.
"Capital Lease" means any lease of property (whether real, personal or
mixed) which, in accordance with GAAP, is accounted for as a capital lease or a
Capital Expenditure in the Consolidated balance sheet of the Company.
"Cash" means unrestricted cash and cash equivalents.
"CERCLA" shall have the meaning set forth in Section 5.20.
"Certificate Delivery Date" shall have the meaning set forth in Section
2.5(b).
"Change in GAAP" shall have the meaning set forth in the definition of
GAAP.
"Charters and Contracts" shall have the meaning set forth in Section
4.1(a).
"Citizens" means Citizens Financial Group, Inc. or a wholly-owned
banking subsidiary thereof, and their respective successors, assigns and
affiliates.
"Citizens Transaction" shall have the meaning set forth in Section
9.8(c).
"Closing" means the exchange of the various documents and instruments
by the parties hereto on the Closing Date which are required to be exchanged on
the Closing Date to consummate the Loans and related transactions in accordance
with this Agreement.
"Closing Date" shall have the meaning set forth in Section 3.2.
"CMLTD" means an amount equal to the installments of principal to be
paid in respect of all Long Term Debt during the Four-Quarter Period immediately
following a relevant Measuring Date.
-4-
"Coastal Debt" means the Debt owed to Coastal Tug & Barge, Inc. in
connection with the purchase of the MV PORT EVERGLADES, as evidenced by a Note
dated August 18, 1999 in the original principal amount of $4,946,777.05, secured
by a Letter of Credit issued by Mellon, together with any and all documents
relating thereto, all as the same may be amended, supplemented or modified from
time to time.
"Code" means the Internal Revenue Code of 1986, as amended.
"COFR" means one or more Certificates of Financial Responsibility for
each Vessel which are issued by the United States Coast Guard and required to be
carried aboard the Vessel.
"Collateral" shall have the meaning set forth in Section 4.1.
"Collateral Agent" means Mellon and its successors and assigns from
time to time in such capacity, as more fully described in this Agreement.
"Company" or "Companies" means, collectively, Maritrans, each of the
other Borrowers, and each of their respective Consolidated Subsidiaries.
"Consolidated" means: (a) with reference to a Subsidiary or
Subsidiaries, such entity the financial statements of which are consolidated
with those of Maritrans for financial reporting purposes on the date or for the
period as or with respect to which a determination is made; and (b) with
reference to an item for financial accounting or reporting purposes, such item
of Maritrans (or any other applicable Borrower) and its Consolidated
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Contractual Obligations" means all indebtedness to entities other than
the Companies for borrowed money, all liabilities for the deferred payment of
the purchase price of property, and all other obligations and liabilities for
the payment of money which are not cancelable by the appropriate Person on
notice of ninety (90) days or less without liability for further payment other
than nominal penalty, including, but not limited to, obligations evidenced by
promissory notes, chattel paper, leases, or other contractual obligations, and
included within such liability or obligation for the payment of money, the
unpaid balance or the maximum aggregate potential obligations thereon.
"Controlled Group Member" means any entity which is a member of a group
of separate entities which, in conjunction with any Borrower, either alone or in
conjunction with one or more other entities, is, or has been, treated as a
single employer under Section 414(b), (c), (m) or (o) of the Code.
"Corresponding Source of Funds" means, as to any Lender, the proceeds
of hypothetical issuances by the Lender of one or more sales of funds at the
LIBOR Rate at the beginning of the LIBOR Rate Interest Period for such Portion,
in each case having maturities approximately equal to such LIBOR Rate Interest
Period and in an aggregate amount approximately equal to such Portion.
"Credit Agreement Security Interest" shall have the meaning set forth
in Section 4.1.
-5-
"Credit Facilities" means, collectively, the Revolving Credit Facility
and the Standby/Term Loan.
"Current Date" means a date not more than five (5) calendar days prior
to the Closing Date.
"Debt" means (a) all indebtedness for the repayment of money borrowed
whether or not represented by bonds, debentures, notes or other securities, (b)
all deferred indebtedness for the payment of the purchase price of property,
services or assets purchased (except for accounts payable incurred in the
ordinary course of business and having an original due date not more than 180
days from the date the account payable was created), (c) all indebtedness under
any Capital Lease, (d) all guarantees, endorsements, assumptions or other
contingent obligations, in respect of, or to purchase or otherwise acquire,
indebtedness of others, specifically including, but not limited to, any and all
guarantees, endorsements, assumptions or other contingent obligations, (e) all
indebtedness secured by any Lien existing on property owned and subject to such
Lien, whether or not the indebtedness secured thereby shall have been assumed by
the owner thereof, (f) all reimbursement obligations under or in respect to
letters of credit, but only to the extent of amounts actually drawn under one or
more letters of credit, and (g) all indebtedness under any Interest Rate
Agreement; provided, however, that indebtedness, liability or an obligation of a
character included within the meaning of more than one of the foregoing
classifications shall not be included under more than one of such
classifications. "Debt" shall not include (i) any debt incurred by one Company
to another Company, (ii) contractual indebtedness for rebuilding or conversion
of single hull tank vessels to double hull, (iii) guarantees required by the
Maritime Administration to be issued by Maritrans to support Title XI Financing
for its Subsidiaries, or (iv) guarantees required to obtain a COFR.
"Debtor Relief Laws" means applicable liquidation, conservatorship,
bankruptcy, insolvency, rearrangement, moratorium, reorganization, or similar
debtor relief Laws affecting the rights of creditors generally from time to time
in effect.
"Default" means the occurrence of any event which with the giving of
notice or lapse of time, or both, would become an Event of Default.
"Default Rate" means a rate of interest, applicable separately to each
Portion, that shall accrue at a per annum rate equal to the rate of interest
otherwise applicable to such Portion, plus an additional margin of two percent
(2.00%) per annum.
"Defaulting Lender" means, at any time, any Lender that, (a) has failed
to make an Advance or purchase a Percentage Interest required pursuant to the
terms of this Credit Agreement (but only for so long as such Advance is not made
or such Participation Interest is not purchased), (b) has failed to pay to any
Agent or any other Lender an amount owed by such Lender pursuant to the terms of
this Agreement (but only for so long as such amount has not been paid) or (c)
has been deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or with respect to which (or with respect to any assets of which) a
receiver, conservator, trustee or similar official has been appointed. The
status of "Defaulting Lender" shall apply to all interests in the name of a
Defaulting Lender, even if such interests are subject to assignments or
participations to other institutions, but any interest (other than a
participation) assigned to a Nondefaulting Lender in accordance with this
Agreement shall, after such assignment is completed and registered in accordance
with the requirements for assignment set forth in this Agreement, be treated as
owned by such Nondefaulting Lender.
-6-
"Delivered Financial Statements" shall have the meaning set forth in
Section 5.4.
"Dividends Paid" means the aggregate amount of Cash or other property
(other than Maritrans capital stock) paid by Maritrans to Maritrans'
shareholders pro rata based upon the number of shares of Maritrans capital stock
outstanding at the time of such payment.
"Documentation Center" means the National Vessel Documentation Center
of the United States Coast Guard, or any office designated by the United States
Coast Guard for recording of preferred ship mortgages such as any of the Vessel
Mortgages.
"Dollars" or the numismatic symbol "$" means lawful money of the United
States of America.
"Drawdown Date" shall have the meaning set forth in Section 2.3(d).
"EBIT" means, for any period, the Net Income (Loss) of the Company on a
Consolidated basis for such period (excluding the prepayment penalty incurred in
connection with the repayment of the Note Purchase Debt), plus interest expense
and income tax expense, in each case of the Company on a Consolidated basis for
such period determined in accordance with GAAP.
"EBITDA" means, for any period, the Net Income (Loss) of the Company on
a Consolidated basis for such period (excluding the prepayment penalty incurred
in connection with the repayment of the Note Purchase Debt), plus interest
expense, income tax expense, amortization and depreciation expense, and
extraordinary losses, minus extraordinary gains, in each case of the Company on
a Consolidated basis for such period determined in accordance with GAAP to the
extent included in the determination of such Net Income (Loss).
"Eligible Assignee" means (a) a commercial bank, savings and loan
institution, insurance company or financial institution organized under the laws
of the United States, or any State thereof, which bank has both assets in excess
of One Billion Dollars ($1,000,000,000) and combined capital and surplus in
excess of One Hundred Million Dollars ($100,000,000), (b) a finance company,
insurance company or other financial institution or a fund which is engaged in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business, has total assets in excess of Five Hundred Million
Dollars ($500,000,000), is doing business in the United States and is organized
under the laws of the United States, or any State, and (c) an Affiliate of a
Lender.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed to also refer to any successor sections.
-7-
"Eurodollar Reserve Percentage" means, for any day, the maximum
effective percentage (expressed as a decimal and rounded upward to the nearest
1/100th of 1%), as determined in good faith by the Administrative Agent (which
determination shall be conclusive), which is in effect as of such day as
prescribed in Regulation D of the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirements
(including, without limitation, supplemental, marginal and emergency reserve
requirements) with respect to "Eurocurrency liabilities" (as such term is
defined in Regulation D) (or against any other category of liabilities that
includes deposits by reference to which the interest rate of LIBOR Loans is
determined), whether or not a Lender has any Eurocurrency liabilities subject to
such reserve requirement at that time. Eurodollar Loans shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credits for proration, exceptions or
offsets that may be available from time to time to a Lender. The LIBOR Rate
shall be adjusted automatically on and as of the effective date of any change in
the Eurodollar Reserve Percentage.
"Event of Default" shall have the meaning set forth in Article VII
hereof.
"Federal Funds Rate" shall mean, for any day, a floating rate equal to
the weighted average of the rates on overnight Federal funds transactions among
members of the Federal Reserve System, as determined by the Administrative
Agent.
"Financed Provisions" shall have the meaning set forth in the
definition of "GAAP".
"Fixed Charge Coverage Ratio" means, for the Company on a Consolidated
basis, as of the Measuring Date in question, the quotient obtained by dividing
the EBITDA of the Company on a Consolidated basis for the Four-Quarter Period
ending on the Measuring Date by the sum of the following for the Company on a
Consolidated basis for the Four-Quarter Period ending on the Measuring Date,
provided, however, that Share Repurchases occurring between the Closing Date and
March 31, 2002 shall be excluded from the calculation of the Fixed Charge
Coverage Ratio for each Measuring Date through and including September 30, 2003:
(a) Prior Period Interest, plus
(b) CMLTD, plus
(c) Tax expense, plus
(d) Dividends Paid, plus
(e) Share Repurchases
-- which may also be expressed by the following formula:
Fixed Charge Coverage Ratio =
EBITDA
--------------------------------------------------------------------------------
Prior Period Interest + CMLTD + Tax Expense + Dividends Paid + Share Repurchases
"Four-Quarter Period" means any period consisting of four consecutive
fiscal quarters of the Company, even if such fiscal quarters pre-date the date
of this Agreement. For the purpose of this definition, each fiscal quarter shall
be included in four separate Four-Quarter Periods. By way of example, the fiscal
quarter ended September 30, 2001 shall be included in each of the Four-Quarter
Periods ended or ending September 30, 2001, December 31, 2001, March 31, 2002
and June 30, 2002.
-8-
"Freights" shall have the meaning set forth in Section 4.1(b).
"Funded Debt" means, with respect to any Person at any time, all Debt
(including the current portion thereof) of such Person which would at such time
be classified in whole or in part as a long-term liability of such Person in
accordance with GAAP and shall also and in any event include (a) any Debt having
a final maturity more than one year from the date of creation of such Debt and
(b) any Debt, regardless of its term, which is renewable or extendable by such
Person (pursuant to the terms thereof or pursuant to a revolving credit or
similar agreement or otherwise) to a date more than one year from such date or
more than one year from the date of the creation of such Debt, and also
including, in the case of the Borrowers, the Obligations.
"Funded Debt to EBITDA Ratio" means, for the Company, as of the
Measuring Date which is the end of each Four-Quarter Period, the quotient
obtained by dividing (a) Funded Debt of the Company on a Consolidated basis as
of such Measuring Date by (b) the Company's EBITDA for the Four-Quarter Period
ending on the Measuring Date.
"FWPCA" shall have the meaning set forth in Section 5.20.
"GAAP" means:
(a) Generally accepted accounting principles in the United
States of America (as such principles may change from time to time) applied on a
consistent basis from year to year (except for changes in application in which
the Borrowers' independent certified public accountants concur), applied both to
classification of items and amounts. The statements, principles, policies and
requirements of the Financial Accounting Standards Board and, to the extent
consistent therewith, of the Securities and Exchange Commission, in effect at
any time in question, shall presumptively be deemed to reflect generally
accepted accounting principles at such time.
(b) If any change in GAAP (as reflected in the statements,
principles, policies and requirements of the Financial Accounting Standards
Board, as opposed to a change in Borrowers' or its accountants' or auditor's
application or interpretation of GAAP) (hereinafter, a "Change in GAAP") after
the date of this Agreement shall be required to be applied to transactions then
or thereafter in existence, and a violation of one or more provisions of this
Agreement shall have occurred or in the opinion of the Borrowers' would likely
occur which would not have occurred or be likely to have occurred if no Change
in GAAP had taken place:
(i) The parties agree that such violation shall not be
considered to constitute an Event of Default for a period of sixty (60) days
from the date a Borrower notifies the Administrative Agent of the application of
this subsection (b);
(ii) The parties agree in such event to negotiate in good
faith an amendment of this Agreement which shall approximate to the extent
possible the economic effect of the original financial covenants after taking
into account such Change in GAAP; and
-9-
(iii) If the parties are unable to negotiate such an amendment
within sixty (60) days, the Borrowers shall have the option of (A) prepaying the
Loans (pursuant to applicable provisions hereof) or (B) submitting the drafting
of such an amendment to a firm of independent certified public accountants of
nationally recognized standing acceptable to the parties, which shall complete
its draft of such amendment within ninety (90) days of submission; if the
Borrowers and the Administrative Agent cannot agree upon the firm, it shall be
selected by binding arbitration in Philadelphia, Pennsylvania in accordance with
the rules then obtaining of the American Arbitration Association. If the
Borrowers do not exercise either such option within said period, then as used in
this Agreement, "GAAP" shall mean generally accepted accounting principles in
effect at the date of the relevant financial statements. The parties agree that
if the Borrowers elect the option in clause (B) above, until such firm has been
selected and completes drafting such amendment, no such violation shall
constitute an Event of Default.
(c) If any Change in GAAP after the date of this Agreement
shall be required to be applied to transactions or conditions then or thereafter
in existence, and the Administrative Agent shall assert that the effect of such
Change in GAAP is or shall likely be to distort materially the effect of any of
the definitions of financial terms in Article I hereof or any of the covenants
of any Borrower in Section 6.2(j) (the "Financial Provisions"), so that the
intended economic effect of any of the Financial Provisions will not in fact be
accomplished:
(i) The Administrative Agent shall notify the
Borrowers of such assertion, specifying the Change in GAAP which is objected to,
and until otherwise determined as provided below, the specified Change in GAAP
shall not be made by the Borrowers in their financial statements for the purpose
of applying the Financial Provisions; and
(ii) The parties shall follow the procedures set
forth in paragraph (ii) and the first sentence of paragraph (iii) of subsection
(b) of this definition. If the parties are unable to agree on an amendment as
provided in said paragraph (ii) and if the Borrowers do not exercise either
option set forth in the first sentence of said paragraph (iii) within the
specified period, then as used in this Agreement "GAAP" shall mean generally
accepted accounting principles in effect at the date of the relevant financial
statements, except that the specified Change in GAAP which is objected to by the
Administrative Agent shall not be made in applying the Financial Provisions. The
parties agree that if the Borrower elects the option in clause (B) of the first
sentence of said paragraph (iii), until such independent firm has been selected
and completes drafting such amendment, the specified Change in GAAP shall not be
made in applying the Financial Provisions.
(d) All expenses of compliance with this definition shall be
paid for by the Borrowers.
"General Electric Debt" means the Debt owed to General Electric Capital
Corporation in connection with the purchase of the tugboats the Enterprise and
the Intrepid, pursuant to a Note dated December 31, 1999 in the original
principal amount of $5,689,187.16, a Fleet Mortgage dated December 31, 1999 and
any and all documents relating thereto, all as the same may be amended,
supplemented or modified from time to time.
-10-
"Governmental Authority" means any governmental or quasi-governmental
authority, whether executive, legislative, judicial, administrative or any
combination thereof, including, without limitation, any federal, state or local
government or governmental or quasi-governmental agency, board, body, branch,
bureau, commission, corporation, court, department, instrumentality or other
political unit or subdivision or other entity of any of the foregoing, whether
domestic or foreign.
"Guarantor" means each of Maritrans Operating Company, L.P., a Delaware
limited partnership, Maritrans Barge Co., a Delaware corporation, and Maritrans
Tankers Inc., a Delaware corporation, and Maritrans Transportation Inc., a
Delaware corporation, and "Guarantors" means all of them.
"Guaranty" means each of the Guaranty and Suretyship Agreements dated
as of the date hereof given by each of the Guarantors in favor of the Agents for
the benefit of the Lenders, as the same may be amended, supplemented or modified
from time to time, and "Guaranties" means all of them.
"Hazardous Substance" shall have the meaning set forth in Section 5.20.
"Hazardous Waste" shall have the meaning set forth in Section 5.20.
"Hull Insurance" shall have the meaning set forth in Section 6.4(a)(i).
"Indemnified Parties" shall have the meaning set forth in Section
10.13.
"Insurance" shall have the meaning set forth in Section 4.1(e).
"Insurance Report" shall have the meaning set forth in Section
6.4(f)(i).
"Interest Coverage Ratio" means, for the Company on a Consolidated
basis, as of the Measuring Date in question, the quotient obtained by dividing
the EBIT of the Company on a Consolidated basis for the Four-Quarter Period
ending on the Measuring Date by the Prior Period Interest of the Company on a
Consolidated basis, which may also be expressed by the following formula:
Interest Coverage Ratio = EBIT
---------------------------
Prior Period Interest
"Interest Period" means the applicable Base Rate Interest Period or
LIBOR Rate Interest Period.
"Interest Rate Agreement" means any interest rate protection agreement,
any interest future agreement, any interest rate option agreement, any interest
swap agreement or any other interest rate hedge agreement, and "Interest Rate
Agreements" means all of them.
"Interest Rate Option" means the Adjusted LIBOR Rate or the Base Rate,
and "Interest Rate Options" includes both of them.
-11-
"Interest Rate Selection Notice" means a written notice as defined in
Section 2.4(b), substantially in the form of Exhibit C attached hereto and made
part hereof, appropriately filled in and signed on behalf of the Borrowers.
"Laws" means all statutes, laws, ordinances, regulations, treaties,
orders, writs, injunctions, or decrees of the United States, any state or
political subdivision thereof, any foreign country, or any Tribunal, now or
hereafter in force.
"Lender" at any time of reference means each of the lenders whose names
may appear on the signature pages of this Agreement or, if applicable, in the
Register and whose interest in the Loans shall not have terminated at the time
of reference, and "Lenders" means all of them collectively.
"Lender Majority" means any Lender(s) having an aggregate of not less
than a sixty-six and two-thirds percent (66-2/3%) Percentage Interest and
holding at least sixty-six and two-thirds percent (66-2/3%) of the then
aggregate unpaid principal amount of the Advances.
"Lender Supermajority" means any Lender(s) having an aggregate of not
less than a seventy-five percent (75%) Percentage Interest and holding at least
seventy-five percent (75%) of the then aggregate unpaid principal amount of the
Advances.
"Lenders' Counsel" means Stradley, Ronon, Xxxxxxx & Xxxxx, LLP,
Philadelphia, Pennsylvania or its successors from time to time as counsel to the
Administrative Agent on behalf of the Lenders.
"Letter of Credit" means and includes, individually or collectively as
the context may indicate, a standby or trade letter of credit issued by the
Administrative Agent pursuant to Article II hereof for the account of one or
more Borrowers in favor of a beneficiary, in form and substance acceptable to
the Administrative Agent, in its sole discretion, and "Letters of Credit" means
more than one of them.
"Letter of Credit Commitment" means, with respect to each Lender, the
obligation of such Lender to acquire Participations in respect of Letters of
Credit and Reimbursement Obligations up to an aggregate amount at any one time
outstanding equal to such Lender's Percentage Interest of the Aggregate Letter
of Credit Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in Article II
hereof providing for the issuance by the Administrative Agent for the account of
one or more Borrowers of Letters of Credit in an aggregate stated amount at any
time outstanding not exceeding the Letter of Credit Sublimit minus outstanding
Reimbursement Obligations.
"Letter of Credit Fee" shall have the meaning set forth in Section
2.11(b).
"Letter of Credit Fee Rate" shall have the meaning set forth in Section
2.11(b).
-12-
"Letter of Credit Outstandings" means, as of any date of determination,
the aggregate amount available to be drawn under all Letters of Credit plus
Reimbursement Obligations then outstanding.
"Letter of Credit Prepayment Advance" shall have the meaning set forth
in Section 2.3(e).
"Letter of Credit Sublimit" means a portion of the Revolving Credit
Facility equal to $10,000,000.00.
"LIBOR Margin" means the rate per annum (expressed as a percentage)
applicable in determining the Adjusted LIBOR Rate calculated in accordance with
the provisions of Section 2.5.
"LIBOR Rate" means, for any LIBOR Rate Interest Period, the rate per
annum at which deposits in Dollars are offered to lending banks in the London
interbank market at approximately 11:00 o'clock a.m. (London time) two (2) LIBOR
Rate Business Days prior to the first day of a proposed LIBOR Rate Interest
Period in an amount approximately equal to the amount of the proposed LIBOR Rate
Portion of the Loan corresponding to such proposed LIBOR Rate Interest Period
for a number of days substantially equal to the number of days in such Interest
Period.
"LIBOR Rate Business Day" means a day which is both a Business Day and
a day for dealings in deposits in Dollars by and among banks in the London
interbank market.
"LIBOR Rate Interest Period" means a period of 30, 60, 90, or 180 days;
provided, however, that (a) each LIBOR Rate Interest Period shall begin on a
LIBOR Rate Business Day, (b) no LIBOR Rate Interest Period shall extend beyond
the Maturity Date, (c) any LIBOR Rate Interest Period that would otherwise end
on a day that is not a LIBOR Rate Business Day shall be extended to the next
succeeding LIBOR Rate Business Day unless such LIBOR Rate Business Day falls in
another calendar month in which case such LIBOR Rate Interest Period shall end
on the next preceding LIBOR Rate Business Day, (d) any LIBOR Rate Interest
Period that begins on the last day of a calendar month or on a day for which
there is no numerically corresponding day in a subsequent calendar month during
which such LIBOR Rate Interest Period is to end shall, subject to clause (c)
above, end on the last day of such subsequent calendar month, and (e) no more
than five (5) LIBOR Rate Interest Periods shall be in effect at any one time.
"LIBOR Rate Portion" means, at the time of reference, any portion,
including the whole, of a Loan bearing interest based on the Adjusted LIBOR
Rate.
"Lien" means, with respect to any property or asset, any mortgage,
charter, lease or assignment thereof, any lien, claim, charge or other
encumbrance of any kind thereon, or any Security Interest therein.
"Litigation" means any proceeding, claim, lawsuit and/or investigation
conducted or threatened by or before any Tribunal, including, but not limited
to, proceedings, claims, lawsuits, and/or investigations under or pursuant to
any occupational safety and health, antitrust, unfair competition, securities,
tax, or other Laws, or under or pursuant to any contract, agreement, or other
instrument.
-13-
"Loan" means the Revolving Credit Facility or Standby/Term Loan, and
"Loans" means and includes both of them.
"Loan Documents" means this Agreement and all documents executed in
connection with or pursuant to or contemplated by this Agreement, whether
executed prior to, contemporaneously with, or subsequent to the execution
hereof, including, without limitation, the Notes, the Vessel Mortgage for each
Vessel, the Guaranties and all other documents, agreements, and other
instruments contemplated hereby, executed pursuant hereto, or in connection
herewith, as the same may be amended, supplemented or modified from time to
time.
"Loan Rate" means the rate of interest applicable to a Loan from time
to time, as determined pursuant to Section 2.4.
"Location" means, for each Borrower, the location of their respective
chief executive offices first set forth above and each other location referred
to in Section 5.22 and identified on Schedule 5.22.
"Long Term Debt" means any Debt which by its terms is due one (1) year,
or longer, from any date of determination thereof.
"Marine Insurance" means any and all policies or contracts of insurance
or indemnification coverage as may be required pursuant to on one or more of the
Vessel Mortgages.
"Maritrans" means Maritrans Inc., a Delaware corporation.
"Material Adverse Effect" means any effect which would be material and
adverse to the financial condition, assets, properties, business or operations
of any Person, or which would materially impair the ability of such Person to
perform its obligations under the Loan Documents to which it is a party.
"Material Agreement" means any material contract, agreement, or other
instrument to which a Borrower is a party or which may be applicable to any
Borrower or any of their property.
"Maturity Date" means January 31, 2007.
"Measuring Date" means each date which is the end of a fiscal quarter
of the Company.
"Multiemployer Plan" means any employee benefit plan which is a
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which any Controlled Group Member has or had an obligation to contribute.
-14-
"Net Income (Loss)" means with respect to any Person and for any
period, the aggregate net income (or loss) after taxes of such Person for such
period, determined in accordance with GAAP.
"New Amount" shall have the meaning set forth in Section 6.4(f)(v).
"Nondefaulting Lender" means and includes each Lender that, at the time
of reference, is not a Defaulting Lender, except with respect to any
participation interests purchased from a Defaulting Lender.
"Note" means each of the Senior Secured Promissory Notes in the form
attached hereto as Exhibit D each of which Notes shall be executed and delivered
by a Borrower in favor of each Lender in a principal amount equal to such
Lender's Separate Commitment.
"Note Purchase Agreement" means any Note Purchase Agreement dated as of
March 15, 1987 between Maritrans Capital Corporation and a note purchaser
signatory thereto, and any Note Purchase Agreement entered into thereafter, all
as the same may be amended, supplemented or modified from time to time.
"Note Purchase Debt" means the Debt owed to each note purchaser
signatory to a Note Purchase Agreement, and secured by that certain Indenture of
Trust and Security Agreement dated as of March 15, 1987, First Preferred Ship
Mortgages dated as of March 15, 1987, and any and all documents relating
thereto, all as the same may be amended, supplemented or modified from time to
time.
"Obligations" means all present and future obligations, liabilities and
indebtedness, and all renewals and extensions thereof, or any part thereof, of
each of the Borrowers arising pursuant to any Note, this Agreement, any Vessel
Mortgage, any other of the Loan Documents or any Interest Rate Agreement and all
interest accruing thereon and reasonable attorneys' fees incurred in the
enforcement or collection thereof, regardless of whether such obligations,
liabilities and indebtedness are direct or indirect, primary or secondary,
fixed, contingent, liquidated, unliquidated, joint, several, or joint and
several.
"Oil" shall have the meaning set forth in Section 5.20.
"Old Mellon Debt" means the Debt owed to Mellon, as evidenced by that
certain Credit Agreement dated October 17, 1997, a Note dated October 17, 1997
in the original principal amount of $33,000,000, a First Preferred Ship Mortgage
dated October 17, 1997, and any and all documents relating thereto, all as the
same may be amended, supplemented or modified from time to time.
"OPA" shall have the meaning set forth in Section 5.20.
"Ordinary Maritime Liens" means (but only so long as, and to the extent
that, such are discharged in the ordinary course of business) (a) liens for
crew's wages and salvage (including contract salvage) not exceeding an amount
customary in the ordinary course of business and limited to the current voyage
and prior voyages which have ended within 45 days of the start date of the
current voyage (collectively, the "Current Voyage") or which shall be contested
-15-
by a Borrower in good faith with adequate reserve or provision therefor; (b)
liens for crew's wages, salvage (including contract salvage) and general average
which are either unclaimed or covered by insurance; and (c) liens incident to
current operations (except for crew's wages, salvage and general average),
limited to the Current Voyage, liens for the wages of a stevedore limited to the
Current Voyage when employed directly by a Borrower or the operator, master or
agent of a Vessel or liens covered by insurance.
"Participation" means, in respect to each Letter of Credit, an amount
equal to a Lender's Percentage Interest in the liability of the Administrative
Agent in respect of such Letter of Credit up to the maximum amount of such
Lender's Letter of Credit Commitment.
"PBGC" means the Pension Benefit Guaranty Corporation established under
Title IV of ERISA or any other governmental agency, department or
instrumentality succeeding to the functions of said corporation.
"Percentage Interest" means, for each Lender, such Lender's
proportionate, undivided interest (which shall be the same for each of the
Loans, all Advances and all Letters of Credit), expressed as a percentage in the
respective initial amounts set forth in Schedule D to this Agreement and, after
Closing, in the Register, as such Percentage Interest may change from time to
time. The sum of the Percentage Interests of all Lenders shall equal 100.00%.
"Permitted Liens" means any one or more of the following:
(a) Liens for taxes or assessments either not yet delinquent
or the validity of which are being contested in good faith by
appropriate proceedings diligently prosecuted and as to which adequate
reserves shall have been set aside in conformity with GAAP;
(b) Deposits or pledges to secure the payment of workers'
compensation, unemployment insurance or other social security benefits
or obligations, or to secure the performance of bids, trade contracts,
leases, public or statutory obligations, surety or appeal bonds and
other obligations of a like nature incurred in the ordinary course of
business;
(c) Materialmen's, mechanics', worker's, repairmen's,
employees, or other like Liens arising in the ordinary course of
business to secure obligations not yet delinquent or being contested in
good faith and as to which adequate reserves shall have been set aside
in conformity with GAAP or as to which adequate bonds shall have been
obtained;
(d) Purchase money Liens, purchase money Security Interests,
or title retention arrangements upon or in any property acquired or
held by such Person in the ordinary course of business to secure
purchase money indebtedness incurred solely for the purpose of
financing the acquisition of such property, or renewals or extensions
thereof, in an aggregate amount of not more than $250,000;
(e) Transaction Liens; and
(f) Ordinary Maritime Liens.
-16-
"Person" means and includes all natural persons and all corporations,
limited liability companies, business trusts, associations, companies,
partnerships, joint ventures, associations, or other entities.
"Plan" means any "employee benefit plan" as such term is defined in
Section 3(3) of ERISA.
"Portion" means, at any time, any portion of the outstanding balance of
a Loan (including, if applicable, the entire outstanding balance of such Loan)
to which a distinct Base Rate Interest Period or a LIBOR Rate Interest Period
applies at the time in question, provided that each Portion shall be in the
principal amount of $100,000 or any greater amount.
"Potential Default" means any event or condition which, solely with the
giving of notice by an Agent, solely with passage of time, or both, would
constitute an Event of Default.
"Prevailing Time" means the time and hour as computed according to the
time and hour conventions prevailing on the date in question in the location of
the Administrative Agent Office.
"Prime Rate" means the rate of interest publicly announced by the
Administrative Agent from time to time as its "prime rate" (it being
acknowledged that such announced rate is not tied to any external rate of
interest or index and does not necessarily reflect the lowest rate charged by
the Administrative Agent to any particular class or category of customers),
which Prime Rate shall change simultaneously with any change in such announced
rate.
"Principal Balance" means with respect to a Note the outstanding
principal balance thereof as of the date of any determination thereof.
"Prior Period Interest" means interest accrued or accruing on the
Company's obligations on a Consolidated basis during the Four-Quarter Period
ending on the relevant Measuring Date.
"Quarterly Compliance Certificate" means a certificate of the Company
to be delivered as provided in Section 6.1(a)(iii) in substantially the form of
Exhibit E attached hereto and made part hereof.
"RCRA" shall have the meaning set forth in Section 5.20.
"Receivables" shall have the meaning set forth in Section 4.1(c).
"Register" shall have the meaning set forth in Section 9.10(e).
"Reimbursement Obligations" shall have the meaning set forth in Section
2.2(b).
"Related LC Documents" shall have the meaning set forth in Section
2.2(j)(i).
"Reportable Event" means (a) a reportable event described in Section
4043 of ERISA and regulations thereunder unless not required to be reported
under applicable regulations, (b) a withdrawal by a substantial employer from a
Plan to which more than one employer contributes, as referred to in Section
4063(b) of ERISA, or (c) a cessation of operations at a facility causing more
than twenty percent (20%) of Plan participants to be separated from employment,
as referred to in Section 4062(e) of ERISA.
-17-
"Repurchase" shall have the meaning set forth in Section 6.2(n).
"Revolving Advance Limit" shall have the meaning set forth in Section
2.1(c).
"Revolving Credit Facility" shall have the meaning set forth in Section
2.1(a).
"Rights" means with respect to any Person, the rights, remedies
(equitable or legal), claims, causes of action, powers, and privileges granted
to such Person pursuant to any or all of this Agreement, the Note, the other
Loan Documents or any other document, instrument or other agreement heretofore,
now, or hereafter executed in connection therewith, whether granted or arising
pursuant to the express provisions of any of the foregoing, or at law, or in
equity, by constitution, statute, case or otherwise.
"XXXX Title III" shall have the meaning set forth in Section 5.20.
"Security Interest" means a mortgage, deed of trust, pledge, security
interest, charge, encumbrance, or lien, or other Rights in any assets or
properties of any Person, or any part thereof, created in favor of any other
Person as secured party, whether by assignment and transfer of, the granting of
a lien, security interest, charge, mortgage, or deed of trust upon, or
possession of, such assets and properties, or any part thereof, to secure
payment and performance of any Debt.
"Separate Commitment" means the commitment of each Lender, measured in
aggregate Dollars, to make Advances with respect to the Loans and to purchase
participations in Letter of Credit liabilities and payments, and shall be equal
to such Lender's Percentage Interest multiplied by the Aggregate Commitment,
rounded, for purposes of convenience, to the nearest $100.00. The initial amount
of each Lender's Separate Commitment shall be set forth in Schedule A attached
hereto.
"Share Repurchases" means the aggregate amount of Cash, the principal
amount of any promissory note or other consideration paid by Maritrans for the
purchase by Maritrans of outstanding shares of Maritrans' capital stock.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the tangible and intangible property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person; (b) the present fair salable value of the tangible
and intangible assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its Debts and
liabilities as they become absolute and matured; (c) such Person does not intend
to, and does not believe that it will, incur Debts or liabilities beyond such
Person's ability to pay as such Debts and liabilities mature; and (d) such
Person is not engaged in a business or transaction, and is not about to engage
in a business or transaction, for which such Person's property would constitute
an unreasonably small capital. The amount of contingent liabilities (such as
litigation, guarantees and pension plan liabilities) at any time shall be
computed as the amount which, in light of all the facts and circumstances
existing at the time, represents the net present value of the amount which can
be reasonably be expected to become an actual or matured liability.
-18-
"Standby Period" means the period from the Closing Date through and
including January 31, 2002.
"Standby/Term Loan" shall have the meaning set forth in Section 2.1(a).
"Standby/Term Loan Limit" shall have the meaning set forth in Section
2.1(b).
"State" means any one of the 50 states of the United States of America
and the District of Columbia.
"Subsidiary" means a corporation, partnership, limited liability
company, business trust, joint venture or other business entity or organization
as to which more than fifty percent (50%) of the equity or voting control is
owned or controlled directly or indirectly by Maritrans or by or through one or
more of its Subsidiaries, and "Subsidiaries" means all of them.
"Tangible Net Worth" means the Consolidated stockholders' equity of the
Companies determined and consolidated in accordance with GAAP, except that there
shall be deducted from such Consolidated stockholders' equity on a Consolidated
basis all treasury stock and all intangible assets of the Companies, including
but not limited to goodwill, organization costs, patents, copyrights,
trademarks, trade names, franchises, licenses, research and development
expenses, unamortized debt discount and expense, and deferred charges.
"Tangible Net Worth Requirement" means the requirement as to Tangible
Net Worth for the Company as set forth in Section 6.2(j)(iii).
"Taxes" means any present or future taxes, levies, impost, deductions,
charges, and all liabilities with respect thereto, claculated in accordance with
GAAP.
"Title XI Financing" means and includes any and all (a) financings or
refinancings for all or part of the costs of rebuilding any Vessel, and (b)
refinancings for any Vessel purchased or acquired with proceeds from either of
the Loans, guaranteed by the United States Government pursuant to Title XI of
the Merchant Marine Act of 1936 or any successor provision, as amended.
"Total Liabilities" means, at any date, the amount of total liabilities
of a Person which would be properly classified as total liabilities of such
Person on a balance sheet at such date in accordance with GAAP.
"Total Liabilities to Tangible Net Worth Ratio" means, for the Company,
as of the Measuring Date which is the end of each Four-Quarter Period, the
quotient obtained by dividing (a) the Total Liabilities of the Company on a
Consolidated basis as of such Measuring Date by (b) the Tangible Net Worth of
the Company on a Consolidated basis as of such Measuring Date.
"Trading Assets" means and includes all of the Cash, deposits in banks,
investments, instruments, securities (including, without limitation, capital
stock of the Companies (other than Maritrans), securities intangibles, financial
and similar assets, accounts receivable, general intangibles, payment
intangibles, and similar assets of the Companies.
-19-
"Transaction Liens" means the Credit Agreement Security Interest and
all Liens and Rights granted to the Collateral Agent for the benefit of the
Agents and/or the Lenders in or under any Vessel Mortgage or any other Loan
Document, or in or to any Collateral whether pursuant to any one or more of the
Loan Documents or applicable law or equity or otherwise whether granted or
arising contemporaneously with the execution of any Loan Document or at any time
thereafter.
"Tribunal" means any State, commonwealth, federal, foreign,
territorial, or other court or governmental department, commission, board,
bureau, agency, or instrumentality, or any arbitrator.
"UCC" means the Uniform Commercial Code as adopted and amended in the
applicable jurisdiction.
"Unused Commitment Fee" shall have the meaning set forth in Section
2.11(a).
"Unused Fee Rate" shall have the meaning set forth in Section 2.11(a).
"Vessel" means, individually, any ship, tanker, tug, barge or other
vessel described on Schedule 5.9 attached hereto and any and all permitted
deletions from and substitutions or additions to, such Schedule 5.9, and
"Vessels" means any or all of them collectively.
"Vessel Mortgage" means a first preferred ship mortgage to be granted
to the Collateral Agent, as mortgagee for the benefit of the Agents and the
Lenders, by a Borrower with respect to each Vessel, to be filed of public record
with the National Vessel Documentation Center of the United States Coast Guard,
and "Vessel Mortgages" means any more than one of them.
Section 1.2 Accounting Terms and Definitions. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
of any Person that are required to be delivered hereunder shall be prepared in
accordance with GAAP as in effect from time to time, applied on a basis (except
for changes approved by the independent public accountants of such Person) with
the most recent respective financial statements of such Person delivered to the
Administrative Agent.
Section 1.3 Miscellaneous.
(a) The words "herein," "hereof," "hereunder" and other words
of similar import refer to this Agreement as a whole and not to a particular
section, paragraph or other subdivision.
(b) The terms defined in Section 1.1 hereof, unless the
context requires otherwise, will have the meaning assigned to them in Section
1.1 hereof, and will include the plural as well as the singular.
-20-
(c) The words "Article", "Section" and "Subsection" shall
refer, respectively, to the Articles, Sections and Subsections of this
Agreement.
(d) All other terms used herein shall have the meanings as
otherwise stated herein or, if applicable, as otherwise defined in the UCC.
(e) References to section of the "U.S.C." shall mean such
section of the United States Code, or any successor provision thereto, and any
regulations adopted thereunder, in each case as amended from time to time.
ARTICLE II
Loans and Letters of Credit
Section 2.1 Loan and Letter of Credit Commitments and Dollar Limits.
(a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, and absent the occurrence of a
Potential Default or Event of Default, the Lenders agree, severally on the basis
of their respective Percentage Interests but not jointly, until the Maturity
Date, to make Advances on account of a standby/term loan (the "Standby/Term
Loan") and a revolving credit facility (the "Revolving Credit Facility") to the
Borrowers, and to cause to be issued, through the Administrative Agent, one or
more Letters of Credit, to or for the benefit or account of one or more of the
Borrowers, in an aggregate amount not to exceed $85,000,000.00 at any time (the
"Aggregate Commitment").
(b) The aggregate principal amount of the Standby/Term Loan
shall not at any time exceed $45,000,000.00 (the "Standby/Term Loan Limit").
Proceeds of the Standby/ Term Loan shall be used by one or more Borrowers to
refinance existing Debt and fund Capital Expenditures and proposed Share
Repurchases by Maritrans of shares of capital stock heretofore issued by
Maritrans and now owned by parties other than Maritrans or any other Borrower.
(c) The aggregate principal amount of the Revolving Credit
Facility outstanding and unrepaid, plus the Aggregate Letter of Credit
Outstandings, shall not at any time exceed $40,000,000.00 (the "Revolving
Advance Limit"). Proceeds of, or availability under, the Revolving Credit
Facility shall be used or allocated by one or more Borrowers for Letters of
Credit, Capital Expenditures, working capital and general corporate purposes.
Upon not less than five (5) Business Days' written notice, the Borrowers may (i)
permanently and irrevocably reduce the Revolving Advance Limit (and,
consequently, the Aggregate Commitment) in increments equal to $1,000,000 or
larger integral multiples of $1,000,000, or (ii) terminate the Revolving Credit
Facility at any time; provided, however, that (A) any prepayment involved in
such reduction or termination shall be subject to the provisions relating to
prepayment and payment of Breakage Costs set forth in this Agreement, and (B)
the Revolving Advance Limit may not be reduced at any time below the Dollar
amount of Letters of Credit Outstanding.
(d) The Aggregate Letter of Credit Outstandings shall not
exceed an amount, which may change from time to time (the "Aggregate Letter of
Credit Commitment") , equal at any time to the lesser of (i) the Letter of
Credit Sublimit, or (ii) the difference between (A) the Revolving Advance Limit
and (B) the sum of (I) the Aggregate Letter of Credit Outstandings and (II) the
aggregate outstanding, unrepaid principal amount of any Advances under the
Revolving Credit Facility.
-21-
(e) The Obligations of the Borrowers shall be evidenced by
this Agreement, the Notes, the other Loan Documents and the records of the
Administrative Agent from time to time.
(f) Each Borrower, jointly and severally, is liable for the
payment of, and the performance of, each and all of the Obligations.
Section 2.2 Letters of Credit.
(a) The Administrative Agent agrees, subject to the terms and
conditions of this Agreement and subject to and in reliance upon the agreements
of the other Lenders set forth in this Agreement, upon request of the Borrowers
(collectively, the "Applicant Borrowers") to issue (and modify, renew and
replace) from time to time for the account of the Applicant Borrowers one or
more Letters of Credit denominated in Dollars upon delivery to the
Administrative Agent of an Application and Agreement for Letter of Credit
relating thereto in form and content acceptable to the Administrative Agent;
provided, that (i) the Administrative Agent shall not be obligated to issue (or
modify, renew or replace) any Letter of Credit if it has been notified or has
actual knowledge that a Potential Default or Event of Default has occurred and
is continuing, and (ii) both immediately before and as a result of such
issuance, modification, renewal or replacement, as the case may be, the Letter
of Credit Outstandings shall not exceed the Aggregate Letter of Credit
Commitment. No Letter of Credit shall have an expiry date (including all rights
of one or more Borrowers or any beneficiary named in such Letter of Credit to
require renewal or replacement) or payment date occurring later than the earlier
to occur of (A) one year after the date of its issuance or (B) the Maturity
Date. Each request by a Borrower (whether alone or jointly with others) for the
issuance or renewal of a Letter of Credit, whether pursuant to an Application
and Agreement for Letter of Credit or otherwise, shall constitute its
certification that the conditions specified in this Agreement with respect to
such issuance or renewal have been satisfied.
(b) Each Borrower, jointly and severally, hereby
unconditionally agrees to pay to the Administrative Agent immediately on demand
at the Administrative Agent Office all amounts required to pay all drafts drawn
or purporting to be drawn under each of the Letters of Credit and all reasonable
expenses incurred by the Administrative Agent in connection with each of the
Letters of Credit (collectively, the "Reimbursement Obligations"), and in any
event and without demand to place in possession of the Administrative Agent
(which shall include Advances under the Revolving Credit Facility if permitted
by this Agreement) sufficient funds to pay when due all drafts, drawings and
other Debts and liabilities arising under any Letter of Credit. The
Administrative Agent agrees to give the Borrowers prompt notice of any request
for a draw under a Letter of Credit. If the Borrowers do not make payment when
required under this Section 2.2, the Administrative Agent may charge any account
one or more Borrowers may have with it for any and all amounts the
Administrative Agent pays under a Letter of Credit, plus charges and reasonable
expenses as from time to time agreed to by the Administrative Agent and the
Applicant Borrowers; provided that to the extent permitted by this Agreement
such sums shall be paid, at the Administrative Agent's option from time to time,
pursuant to Advances under the Revolving Credit Facility. Each Borrower agrees,
jointly and severally, to pay the Administrative Agent interest on any
Reimbursement Obligations not paid when due (either outright or pursuant to
permitted Advances under the Revolving Credit Facility), from the date due until
the date paid at the Default Rate.
-22-
(c) The Administrative Agent shall notify the Lenders of any
drawing under any Letter of Credit promptly following the receipt by the
Administrative Agent of such drawing.
(d) Each Lender shall automatically acquire on the date of
issuance of each Letter of Credit a Participation in the liability of the
Administrative Agent in respect of such Letter of Credit in an amount equal to
such Lender's Percentage Interest of such liability, up to the maximum amount of
such Lender's Letter of Credit Commitment. In addition, to the extent that one
or more Borrowers is obligated to pay the Administrative Agent any Letter of
Credit fees or reimburse any expenses related thereto, each Lender (other than
the Administrative Agent) thereby shall absolutely, unconditionally and
irrevocably assume, and shall be unconditionally obligated to pay to the
Administrative Agent, a portion equal to its Percentage Interest of any
Reimbursement Obligations not paid by Borrowers, subject, however, to
reimbursement according to their respective Percentage Interests upon payment of
the same by the Borrowers.
(e) Simultaneously with the making of each payment by a Lender
to the Administrative Agent pursuant to the first sentence of subsection (d) of
this Section 2.2, such Lender shall, automatically and without any further
action on the part of the Administrative Agent or such Lender, acquire a
Participation in an amount equal to such payment (excluding the portion thereof
constituting interest accrued prior to the date the Lender made its payment) in
the related Reimbursement Obligation of the applicable Borrower or Borrowers.
Each Lender's obligation to make payment to the Administrative Agent, and the
right of the Administrative Agent to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and shall be
made without any offset, abatement, withholding or reduction whatsoever. In the
event the Lenders shall be deemed to have acquired Participations in any
Reimbursement Obligation as set forth above, then at any time payment (in fully
collected, immediately available funds) of such Reimbursement Obligation, in
whole or in part, is received by the Administrative Agent from one or more
Borrowers, the Administrative Agent shall promptly pay to each Lender an amount
equal to its Percentage Interest of such payment from the Borrower or Borrowers.
(f) Promptly following the end of each calendar month, the
Administrative Agent shall deliver to the Lenders a notice describing the
aggregate undrawn amount of all Letters of Credit at the end of such month. Upon
the request of any Lender from time to time, the Administrative Agent shall
deliver to such Lender any other information reasonably requested by such Lender
with respect to each Letter of Credit outstanding.
(g) The issuance by the Administrative Agent of each Letter of
Credit shall, in addition to any other conditions precedent set forth in this
Agreement, be subject to the conditions that (i) such Letter of Credit be in
such form and contain such terms as shall be satisfactory to the Administrative
Agent, in its sole discretion, consistent with the then current practices and
procedures of the Administrative Agent with respect to similar letters of
credit, (ii) the issuance of such Letter of Credit shall not violate any
material policy of the Administrative Agent, and (iii) the Borrowers shall have
executed and delivered to the Administrative Agent the Applications and
Agreements for Letters of Credit and such other instruments and agreements
relating to such Letters of Credit as the Administrative Agent shall have
reasonably requested consistent with such practices and procedures.
-23-
(h) Borrowers and Lenders agree that the Administrative Agent
may, in its sole discretion, accept or pay, as complying with the terms of any
Letter of Credit, any drafts or other documents otherwise in order which may be
signed or issued by an administrator, executor, trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, liquidator, receiver,
attorney in fact or other legal representative of a party who is authorized
under such Letter of Credit to draw or issue any drafts or other documents.
(i) Without limiting the generality of any other provisions of
this Agreement, the Borrowers jointly and severally agree to indemnify and hold
harmless the Administrative Agent, each other Lender and the Collateral Agent,
and their respective agents, from and against any and all claims and damages,
losses, liabilities, reasonable costs and reasonable expenses which the
Administrative Agent, such other Lender or the Collateral Agent or their
respective agents may incur (or which may be claimed against the Administrative
Agent, such other Lender or the Collateral Agent or their respective agents) by
any Person by reason of or in connection with the issuance or transfer of or
payment or failure to pay under any Letter of Credit; provided that Borrowers
shall not be required to indemnify the Administrative Agent, any other Lender,
the Collateral Agent or any of their respective agents for any claims, damages,
losses, liabilities, costs or expenses to the extent, but only to the extent,
(i) caused by the willful misconduct or gross negligence of the party to be
indemnified or (ii) caused by the failure of the Administrative Agent to pay
under any Letter of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of Credit,
unless such payment is prohibited by any law, regulation, court order or decree.
The indemnification and hold harmless provisions of this Subsection (i) shall
survive repayment of the Obligations, occurrence of the Maturity Date and
expiration or termination of this Agreement.
(j) Without limiting the provisions of Subsection (i) of this
Section 2.2, the obligation of each Borrower, jointly and severally, to
immediately reimburse the Administrative Agent for drawings made under Letters
of Credit and the Administrative Agent's right to receive such payment shall be
absolute, unconditional and irrevocable, and such obligations of Borrowers shall
be performed strictly in accordance with the terms of this Agreement and such
Letters of Credit and the related Applications and Agreements for Letter of
Credit, under all circumstances whatsoever, including without limitation the
following circumstances:
(i) any lack of validity or enforceability of a
Letter of Credit, the obligation supported by the Letter of Credit or any other
agreement or instrument relating thereto (collectively, the "Related LC
Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
-24-
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the terms of this
Agreement) or other rights which any Borrower or other account party or third
party with respect to a Letter of Credit may have at any time against any
beneficiary or any transferee of a Letter of Credit (or any persons or entities
for whom any such beneficiary or any such transferee may be acting), the
Administrative Agent, the Collateral Agent, the Lenders or any other Person,
whether in connection with the Loan Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other dispute between
any Borrower or other account party or third party with respect to a Letter of
Credit, on the one hand, and any beneficiary or any transferee of a Letter of
Credit (or any persons or entities for whom such beneficiary or any such
transferee may be acting), the Administrative Agent, the Collateral Agent, the
Lenders or any other Person, on the other hand;
(v) any draft, statement or any other document
presented under the 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 whatsoever so long as any such document appeared to
substantially comply with the terms of the Letter of Credit;
(vi) the existence, character, quality, quantity,
condition, value, or delivery (including the time, place, manner or order
thereof) of property described or purportedly described in documents presented
in connection with any Letter of Credit or the existence, nature or extent of
any insurance relating thereto;
(vii) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or agreed to by the
Administrative Agent, with or without notice to or approval by any one or more
Borrowers in respect of any Obligations; or
(viii) any other circumstance or happening whatsoever
where the Administrative Agent has acted in good faith, whether or not similar
to any of the foregoing.
(k) Notwithstanding any other provision of this Agreement or
any other agreement of any of the parties, the Administrative Agent shall be
under no obligation to issue any Letter of Credit if any order, judgment or
decree of any Governmental Authority or arbitrator shall by its terms purport to
enjoin or restrain the Administrative Agent from issuing such Letter of Credit
or enjoining, staying, delaying or modifying the obligation of any Borrower to
pay or perform any of its Obligations with respect to any Letter of Credit, or
any Law applicable to the Administrative Agent or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over the Administrative Agent shall prohibit, or request that the
Administrative Agent refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the Administrative
Agent with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the Administrative Agent is not otherwise compensated
hereunder) not in effect on the Closing Date, shall impose upon the
Administrative Agent any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the Administrative Agent in good xxxxx
xxxxx material to it, or shall prohibit or prevent any Borrower from paying any
Obligations associated with such Letter of Credit.
-25-
Section 2.3 Advances.
(a) For those Advances under the Standby/Term Loan and
Revolving Credit Facility which a Borrower desires to borrow on the Closing
Date, the Borrower shall provide a written notice (a "Borrowing Notice") and one
or more Interest Rate Selection Notices to the Administrative Agent prior to the
Closing Date. On or prior to 3:00 p.m. Prevailing Time on the Closing Date,
provided the conditions to such Advance shall have been fulfilled, each Lender
shall make available to the Administrative Agent its Percentage Interest in each
Advance to be made at Closing, and the Administrative Agent shall thereupon make
such Advance available to the Borrower on or prior to 4:00 p.m. Prevailing Time
on the Closing Date at the Administrative Agent Office in funds immediately
available at such office, by depositing all or part of such proceeds in the
Borrowers' accounts maintained at the Administrative Agent Office, or by
originating a wire or other funds transfer of all or part of such proceeds to
pursuant to Borrowers' instructions.
(b) One or more Advances under the Standby/Term Loan shall be
available from time to time on and after the Closing Date and during the Standby
Period, but not thereafter; such Advances shall be available on a nonrevolving
basis, so that any repayments made by Borrowers shall not be available for
readvance. Advances under the Revolving Credit Facility shall be available on a
revolving basis from time to time prior to the Maturity Date, so that, in the
event the Borrowers repay all or any Portion of the principal amount of the
Revolving Credit Facility, the Borrowers shall be entitled to reborrow any such
repaid principal amounts, subject to the terms and conditions of this Agreement.
(c) Notwithstanding any other agreement of the parties,
Lenders shall not be obligated to make any Advance if the aggregate amount of
all Obligations (other than Obligations incurred in connection with any Interest
Rate Agreement) exceeds 60% of the aggregate appraised value of the Vessels.
(d) Whenever the Borrowers desire an Advance with respect to
either Loan after the Closing Date, the Borrowers shall provide to the
Administrative Agent, not later than 11:00 a.m. Prevailing Time (i) on the same
Business Day for each Base Rate Loan, and (ii) at least three (3) Business Days
before each LIBOR Rate Loan, a Borrowing Notice setting forth the following
information: (i) the date, which shall be a Business Day, on which the proposed
Advance is to be made (the "Drawdown Date"), (ii) the total principal amount of
such requested Advance, and (iii) as to each Portion to be advanced, an Interest
Rate Selection Notice. Notices received after 11:00 a.m. Prevailing Time shall
be deemed received on the next Business Day. Upon receipt, the Administrative
Agent shall promptly notify the Lenders of each Borrowing Notice.
-26-
(e) If the foregoing notice requirements shall have been
satisfied, each Lender shall make available to the Administrative Agent, on or
prior to 3:00 p.m. Prevailing Time on the Drawdown Date, its Percentage Interest
in each Advance to be made on the Drawdown Date. The Administrative Agent shall
thereupon make such Advance available to the Borrowers on or prior to 4:00 a.m.,
Prevailing Time on the Drawdown Date at the Administrative Agent Office in funds
immediately available at such Office, by depositing all or part of such proceeds
in the Borrowers' accounts maintained at the Administrative Agent Office, or by
originating a wire or other funds transfer of all or part of such proceeds
pursuant to the Borrowers' instructions; provided, however that the
Administrative Agent shall not be obligated to disburse the portion of the
Advance requested pursuant to this Section 2.3 to the extent that any Lender has
not made available to the Administrative Agent such Lender's Percentage Interest
of such Advance; provided, further, that the failure of any Lender to advance
its Percentage Interest of any Advance shall not relieve it or any other Lender
of the obligation to advance its Percentage Interest, but no Lender or the
Administrative Agent or the Collateral Agent shall be responsible for the
failure of any other Lender to advance its Percentage Interest to the Borrowers.
(f) Unless the Administrative Agent shall have received notice
from a Lender prior to 1:00 p.m. Prevailing Time on the Drawdown Date that such
Lender will not make available to the Administrative Agent its Percentage
Interest in such Advance on the Drawdown Date, the Administrative Agent may
assume that such Lender has made such Percentage Interest in such Advance
available. The Administrative Agent in its sole discretion and in reliance upon
such assumption, may make available to the Borrowers on the Drawdown Date a
corresponding amount on behalf of such Lender. If and to the extent such Lender
shall not have made available to the Administrative Agent such Lender's
Percentage Interest in such Advance requested to be made by such Lender on such
Drawdown Date and the Administrative Agent shall have so made available to the
Borrowers a corresponding amount on behalf of such Lender, (i) such Lender
shall, on demand, pay to the Administrative Agent such corresponding amount
together with interest thereon, for each day from the date such amount shall
have been so made available by the Administrative Agent to the Borrowers until
the date such amount shall have been paid in full to the Administrative Agent,
at the Federal Funds Rate until (and including) the third Business Day after
demand is made and thereafter at the Base Rate, and (ii) the Administrative
Agent shall be entitled to all interest payable by Borrowers on such amount for
the period commencing on the date such amount was advanced by the Administrative
Agent to but not including the date on which such amount is received by the
Administrative Agent from such Lender. Without limiting any obligations of any
Lender pursuant to this paragraph (f), if such Lender does not pay such
corresponding amount promptly upon the Administrative Agent's demand therefor,
the Administrative Agent shall notify the Borrowers and the Borrowers shall
promptly repay such corresponding amount to the Administrative Agent together
with accrued interest thereon at the applicable rate or rates on such Loans.
(g) If, notwithstanding the terms of this Agreement, any
Letter of Credit Outstandings remain, or is scheduled to remain, outstanding on
the Maturity Date, Borrowers shall be deemed to have requested a Base Rate
Advance under the Revolving Credit Facility, to be made on the Business Day
immediately preceding the Maturity Date, in an amount equal to 105% of the
Letter of Credit Outstandings that remain, or are scheduled to remain, after the
Maturity Date (a "Letter of Credit Prepayment Advance"). The Administrative
Agent shall hold any Letter of Credit Prepayment Advance as collateral for the
Borrowers' reimbursement and other obligations relating to any Letters of Credit
that may remain outstanding beyond the Maturity Date. The amount of any Letter
of Credit Prepayment Advance shall be included in the total principal amount
owing and to be paid by Borrowers with respect to the Revolving Credit Facility
and shall be payable in full on the Maturity Date.
-27-
Section 2.4 Interest Rates.
(a) The Loans shall bear interest at the rate or rates
selected by the Borrowers from time to time from among the Interest Rate Options
in the manner provided in subsection (b) of this Section 2.4. The Borrowers may
select different Interest Rate Options to apply simultaneously to different
Portions of the Loans or any Advance; provided, however, that (i) each separate
LIBOR Rate Portion to which such selection relates shall be in the principal
amount of $100,000 or any greater amount and (ii) if the Borrowers fail to
select an Interest Rate Option for any Portion of a Loan for any period, the
Borrowers shall be deemed to have selected the Base Rate for such Portion and
period.
(b) The Borrowers shall give the Administrative Agent an
interest rate selection notice (the "Interest Rate Selection Notice") no later
than 12:00 o'clock noon Prevailing Time on:
(i) the third LIBOR Rate Business Day preceding the
first day of any proposed LIBOR Rate Interest Period; and
(ii) the first day of any Base Rate Interest Period.
Each Interest Rate Selection Notice shall state (A) the Interest Rate Option or
Options selected, (B) the principal amount of each separate Portion of the Loan
to which such selection relates, and (C) the proposed Interest Period or
Periods, if applicable.
(c) Subject to compliance with subsection (b) of this Section
2.4, the Borrowers may:
(i) select an Adjusted LIBOR Rate for any Base Rate
Portion of the Loan to be effective at any time designated by the Borrowers; and
(ii) select the Base Rate for any LIBOR Rate Portion
of the Loan to be effective as of the end of the Interest Period for such
Portion.
(d) After any principal amount of any Portion of a Loan shall
have become due (by acceleration or otherwise), the unpaid principal amount of
such Portion of such Loan shall thereafter bear interest, payable upon demand,
for each day until paid (before and after judgment) at the Default Rate.
(e) Each Borrowing Notice sent shall be irrevocable and
binding on the Borrowers. If for any reason on a Drawdown Date specified in a
Borrowing Notice, any Advance is not made as a result of any failure to fulfill
on or before such Drawdown Date the applicable conditions precedent, the
Borrowers shall, jointly and severally, indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of such failure, including,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the Advances to be made by such Lender as part of such borrowing.
-28-
(f) All computations of interest in respect of the Loans, and
all calculations of the Unused Commitment Fee and the Letter of Credit Fee,
shall be made by the Administrative Agent on the basis of a 360 day year, in
each case for the actual number of days occurring in the period for which such
interest or fee is payable. In no event will the Administrative Agent calculate
interest at a rate that exceeds the highest rate of interest permissible under a
law that a court of competent jurisdiction shall, in a final determination, deem
applicable to the Loans.
(g) Provided that no Potential Default or Event of Default has
occurred and is then continuing, the Borrowers shall have the option to (i)
convert at any time all or any portion of its outstanding Base Rate Loans in a
principal amount equal to $1,000,000 or any whole multiple of $500,000 in excess
thereof into one or more LIBOR Rate Loans, and (ii) upon the expiration of any
LIBOR Rate Interest Period, (A) convert all or any part of its outstanding LIBOR
Rate Loans in a principal amount equal to $1,000,000 or a whole multiple of
$500,000 in excess thereof into Base Rate Loans, or (B) continue such LIBOR Rate
Loans as LIBOR Rate Loans. Whenever the Borrowers desire to convert or continue
Loans as provided above, the Borrowers shall give the Administrative Agent prior
written notice in the form attached as Exhibit F (a "Notice of Conversion/
Continuation") not later than 11:00 a.m. Prevailing Time three (3) Business Days
before the day on which a proposed conversion or continuation of such Loan is to
be effective specifying (1) the Loans to be converted or continued, and, in the
case of any LIBOR Rate Loan to be converted or continued, the last day of the
LIBOR Rate Interest Period therefor, (2) the effective date of such conversion
or continuation (which shall be a Business Day), (3) the principal amount of
such Loans to be converted or continued, and (4) the LIBOR Rate Interest Period
to be applicable to such converted or continued LIBOR Rate Loan. The
Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation. Notwithstanding anything to the contrary herein
contained, (Y) if, upon the expiration of any LIBOR Rate Interest Period
applicable to any LIBOR Rate Loan, the Borrowers shall fail to give a Notice of
Continuation/Conversion as set forth in this paragraph (g), the Borrowers shall
be deemed to have given a Notice of Continuation of such LIBOR Rate Loan in
principal amount equal to the outstanding principal amount of such LIBOR Rate
Loan and having a LIBOR Rate Interest Period of 30 days, and (Z) if the
Borrowers request a conversion to or continuation as a LIBOR Rate Loan, but the
applicable Notice of Conversion/Continuation fails to state a LIBOR Rate
Interest Period, such Notice of Conversion/Continuation shall be deemed to be a
request for a LIBOR Rate Interest Period of 30 days.
-29-
Section 2.5 Determination of LIBOR Margin; Quarterly Compliance
Certificates.
(a) The Administrative Agent shall determine the LIBOR Margin
from time to time in the following manner and shall apply the newly determined
LIBOR Margins to determine the Adjusted LIBOR Rate for all LIBOR Rate Portions
of each Loan outstanding upon the effective date of the change. The newly
determined Adjusted LIBOR Rate shall apply to the accrual of interest for all
Portions of each LIBOR Rate Loan on and after the first day of the first
calendar month following each Certificate Delivery Date.
(b) At the Closing (for the Four-Quarter Period ending
September 30, 2001), and thereafter within 120 days after the end of each fiscal
year and within 60 days after the end of each of the first three quarters of
each fiscal year (the "Certificate Delivery Date") commencing with the fiscal
quarter ending on December 31, 2001, the Borrowers shall furnish to the
Administrative Agent and to the Lenders a Quarterly Compliance Certificate.
(c) If, as of the end of any Four-Quarter Period, the Funded
Debt to EBITDA Ratio for the Company, on a Consolidated basis, is within a range
set forth in column (2), designated as Level "1" through Level "3" in the
following table, the respective percentage rate per annum set forth opposite
such range in column (3) shall be the "LIBOR Margin" for purposes of calculating
the Adjusted LIBOR Rate:
(1) (2) (3)
Level Funded Debt to EBITDA Ratio LIBOR Margin
(LIBOR)
1 Less than 1.25 150.0 basis points
2 Greater than or equal to 1.25, and less 187.5 basis points
than or equal to 1.75
3 Greater than 1.75 225.0 basis points
(d) Notwithstanding the other provisions of this Section:
(i) During the period prior to March 1, 2002, the
percentage rate per annum for all Advances shall be at Level "3" set forth in
the above table; and
(ii) During any quarterly period for which the
Administrative Agent shall not have received a Quarterly Compliance Certificate
on or before the required Certificate Delivery Date, interest shall accrue at
the Default Rate.
Section 2.6 Determination of Rates and LIBOR Margin. Upon identifying
any change in the Adjusted LIBOR Rate, the Base Rate or the LIBOR Margin, the
Administrative Agent shall determine the same and shall promptly give the
Borrowers and Lenders notice thereof. Such determination by the Administrative
Agent shall be conclusive in the absence of manifest error.
-30-
Section 2.7 Interest.
(a) The Borrowers shall pay interest on the Loans from the
date thereof until the Loans have been repaid in full, at the rate or rates
determined in accordance with Sections 2.4 and 2.5 hereof and at the times
provided in subsections (b), (c) and (d) of this Section 2.7.
(b) Interest accrued on each Loan and not previously paid
pursuant to subsection (c) of this Section 2.7 shall be paid:
(i) as to a Base Rate Portion, quarterly in arrears
on the last Business Day of January, April, July and October in each year (each,
a "Base Rate Interest Payment Date");
(ii) as to each LIBOR Rate Portion, on the last day
of each successive LIBOR Rate Interest Period applicable to such LIBOR Rate
Portion; and
(iii) on the occurrence of the Maturity Date or an
Event of Default, whichever is earlier.
(c) Except for advances requested prior to March 1, 2002,
Borrowers shall not be entitled to select the Adjusted LIBOR Rate Interest
Option at any time that a current Quarterly Compliance Certificate has not been
delivered to the Administrative Agent. If the Adjusted LIBOR Rate Interest
Option has been selected for any Portion at a time when the Borrowers have
failed to deliver to the Administrative Agent, when required, a current
Quarterly Compliance Certificate enabling the Administrative Agent to determine
the LIBOR Margin, if any, to be used in calculating the amount of such interest
payment, Borrowers shall thereafter pay interest on all LIBOR Rate Portions at
the Default Rate until such time as Borrowers comply with the obligation to
deliver a Quarterly Compliance Certificate. If, upon Borrowers' delivery of any
Quarterly Compliance Certificate which had not been timely delivered when due,
the Administrative Agent determines that Borrowers should have paid interest
under the terms of this Agreement for any Portion for any period at a higher
rate than the rate at which Borrowers actually paid interest on such Portion
during such period, Borrowers shall reimburse the Administrative Agent upon
demand for any shortfall. However, in such circumstances, in the event it is
determined that Borrowers should have paid interest on any Portion during any
such period at a rate lower than the rate at which Borrowers actually paid
interest on such Portion during such period, neither the Administrative Agent
nor the Lenders shall be obligated to reimburse Borrowers any excess.
(d) Notwithstanding any other provision of this Agreement,
from and after the occurrence of an Event of Default, and so long as such Event
of Default is continuing, all interest on all Advances shall accrue at the
Default Rate.
Section 2.8 Prepayment of the Loan.
(a) Subject to compliance with this Section 2.8 and with
Section 2.9, the Borrowers may voluntarily prepay any Base Rate Portion at any
time in whole or in part, and may prepay any LIBOR Rate Portion in whole or in
part on the last day of the applicable LIBOR Rate Interest Period; provided,
however, that, except for repayments required under Section 2.8(c), any
prepayment of a Base Rate Portion or LIBOR Rate Portion, other than a prepayment
of either Loan in full, shall be in the principal amount of $1,000,000 or any
greater amount that is an integral multiple of $1,000,000.
-31-
(b) If the Borrowers give notice, as provided in Section 2.9
hereof, of their intention to make a prepayment pursuant to subsection (a) of
this Section 2.8, the Portion or Portions of the Loan specified in such notice,
together with the unpaid interest accrued thereon to the date of such
prepayment, and premium, if any, shall become due and payable on the prepayment
date specified in such notice.
(c) The Borrowers shall prepay the Standby/Term Loan, and the
Standby/Term Loan Limit shall thereby be permanently reduced (and, consequently,
the Aggregate Commitment) in an amount equal to the following amount of net
proceeds from any Title XI Financing relating to any Vessel (i) 100% of all
aggregate net proceeds up to $20,000,000 and (ii) 50% of all aggregate net
proceeds in excess of $20,000,000. Upon any such prepayment, each of the
remaining unpaid periodic principal installment payments scheduled for the
Standby/Term Loan shall be proportionately reduced, but no installments shall be
deferred or waived. At such time as the Standby/Term Loan has been repaid in
full, the Borrowers shall remit all net proceeds from any Title XI Financing to
the Administrative Agent to be applied as a mandatory payment against the then
outstanding amount of the Revolving Credit Facility.
Section 2.9 Payment of Loan Principal.
(a) The principal amount outstanding with respect to each of
the Loans shall be payable as provided in this Section 2.9. All sums other than
principal or interest which may become owing to the Lenders, the Administrative
Agent or the Collateral Agent shall be payable as provided herein or in the
applicable Notes, Vessel Mortgages or other Loan Documents, but otherwise upon
demand by the Administrative Agent.
(b) The Borrowers shall repay the full, unpaid balance of
principal, accrued interest and other sums and charges with respect to each Loan
on the Maturity Date.
(c) The Borrowers shall make the following scheduled payments
of outstanding principal with respect to the Standby/Term Loan:
Frequency: During the Period: Periodic Principal Payment
Amount
Quarterly Commencing 4/30/2002 through 01/31/2003 $1,250,000.00
Quarterly Commencing 4/30/2003 through 01/31/2004 $1,500,000.00
Quarterly Commencing 4/30/2004 through 01/31/2005 $2,000,000.00
Quarterly Commencing 4/30/2005 through 01/31/2006 $3,000,000.00
Quarterly Commencing 4/30/2006 through 01/31/2007 One-quarter of principal
balance remaining on 01/31/2006
-32-
(d) Each prepayment made pursuant to subsection (a) of Section
2.8 and each principal repayment made pursuant to this Section 2.9 shall be
applied on account of the Portion or Portions of the Loan designated by the
Borrowers in the manner provided in subsection (c) of this Section 2.9;
provided, however, that (i) no amount other than $1,000,000 or an integral
multiple thereof may be applied on account of any separate Portion of such Loan
and (ii) if the Borrowers fail to designate the manner in which any repayment or
prepayment is to be applied, it shall be applied in any manner selected by the
Administrative Agent.
(e) Not later than 12:00 o'clock noon Prevailing Time on the
third (3rd) LIBOR Rate Business Day preceding the date on which the prepayment
or repayment is to be made, the Borrowers shall notify the Administrative Agent
in writing of each prepayment that the Borrowers propose to make pursuant to
Section 2.8(a) and the manner in which any such prepayment and any principal
repayment to be made pursuant to this Section 2.9 is to be applied.
(f) If, for any reason, including prepayment (whether
voluntary, mandatory, involuntary or otherwise), maturity, default, demand,
acceleration or otherwise, of any Portion, in whole or in part, the
Administrative Agent or any of the Lenders receives payment of principal of or
interest on a LIBOR Rate Portion on any day other than the last day of the
applicable LIBOR Rate Interest Period for such LIBOR Rate Portion, the Borrowers
shall pay to the Administrative Agent on behalf of the Lenders, on demand, any
amounts required to compensate the Lenders for any breakage costs (including
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds in respect of such payment) and any additional losses,
costs or expenses which any Lender may incur as a result of such payment,
prepayment, purchase or acceleration in connection with unwinding or liquidating
of any deposits or funding or financing arrangement with its funding sources
(collectively, "Breakage Costs"), provided that the Lender or Lenders shall have
delivered to the Administrative Agent and the Borrowers a certificate as to the
calculation and amount of such Breakage Costs, which certificate shall be
binding, absent manifest error, except that the failure of a Lender or Lenders
to provide such certificate shall in no way relieve the Borrowers of their
obligations under this Section 2.9.
(g) Whenever any payment to be made hereunder shall be stated
to be due on a day which is not a Business Day, such payment may be made on the
next succeeding Business Day, and such extension of time shall be included in
the computation of interest payable on such next succeeding Business Day
hereunder.
Section 2.10 Adjusted LIBOR Rate Unascertainable, Adjusted LIBOR Rate
Impracticable, and LIBOR Rate Interest Period Unavailable.
(a) If, on any date on which a LIBOR Rate Interest Period
would otherwise begin, the Administrative Agent shall have determined (which
determination shall be final and conclusive if made in good faith) that, by
reason of circumstances affecting the London interbank market for Dollar
deposits, adequate and reasonable means do not exist for ascertaining such
Adjusted LIBOR Rate, then the Administrative Agent shall forthwith so notify the
Borrowers thereof. Until the Administrative Agent notifies the Borrowers that
the circumstances giving rise to such notice no longer apply, the Borrowers'
privilege to select the Adjusted LIBOR Rate shall be suspended.
-33-
(b) If, at any time, the Administrative Agent shall have
determined (which determination shall be final and conclusive if made in good
faith) that the application of the Adjusted LIBOR Rate or the continuation of
any LIBOR Rate Portion of the Loan has been made impracticable or unlawful:
(i) by the occurrence of a contingency which
materially and adversely affects the London interbank market for Dollar
deposits; or
(ii) because compliance by any Lender in good faith
with any applicable Law or change therein or interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof or with any request or directive of such Governmental
Authority (whether or not having the force of law) has become impracticable or
unlawful,then, and in any such event, the Administrative Agent shall forthwith
so notify the Borrowers thereof. The Base Rate shall apply until the
Administrative Agent notifies the Borrowers that the circumstances giving rise
to such notice no longer apply.
(c) Upon such date as shall be specified in a notice given
pursuant to subsection (a) or (b) of this Section 2.10 (which shall not be
earlier than the date such notice is given), the Borrowers shall pay to the
Administrative Agent the accrued and unpaid interest on the LIBOR Rate Portions
of a Loan to (but not including) such specified date, but the Borrowers shall
not be obligated to pay a yield maintenance premium as a result of such payment.
(d) If, on any date on which a LIBOR Rate Interest Period
would otherwise begin, the Administrative Agent shall have determined (which
determination shall be final and conclusive if made in good faith) that the
selection of such Interest Period by the Borrowers has been made impracticable
by the occurrence of a contingency which materially and adversely affects the
London interbank market for Dollar deposits, the Administrative Agent shall
forthwith so notify the Borrowers thereof and the Borrowers' selection of such
Interest Period shall be deemed to be of no force and effect. Upon receipt of
any such notice, the Borrowers may select a different LIBOR Rate Interest Period
in accordance with Section 2.4.
Section 2.11 Fees. In addition to any other fees and reimbursement of
expenses provided in this Agreement or any other Loan Documents, the Borrowers
agree to pay to the Lenders, the Administrative Agent and the Collateral Agent,
as consideration for the Loan commitment hereunder, the following commitment,
loan, structuring, agent's and other fees:
(a) Unused Commitment Fee. A periodic fee (the "Unused
Commitment Fee") shall be payable quarterly in arrears to the Lenders on each
Base Rate Interest Payment Date. The Unused Commitment Fee shall be determined
by multiplying the applicable "Unused Fee Rate" (as defined below) times the
average aggregate undrawn principal balance of the Aggregate Commitment
(deducting therefrom, solely for these purposes, only outstanding, unpaid
Advances and the average Letter of Credit Outstandings) during the quarterly
period ending on such Base Rate Interest Payment Date. The "Unused Fee Rate"
shall be that rate per annum specified in column (3) in the table below, based
upon the Funded Debt to EBITDA Ratio for the Company set forth in column (2), as
set forth in the most recently delivered Quarterly Compliance Certificate, such
Unused Fee Rate to change effective with each change in the applicable
percentage of the Funded Debt to EBITDA Ratio:
-34-
(1) (2) (3)
Level Funded Debt to EBITDA Ratio Unused Fee Rate
1 Less than 1.25 37.5 basis points
2 Greater than or equal to 1.25, and less than 37.5 basis points
or equal to 1.75
3 Greater than 1.75 50.0 basis points
(b) Letter of Credit Fees. A periodic fee (the "Letter of
Credit Fee") shall be payable quarterly in arrears to the Lenders and the
Administrative Agent, as more fully described below on each Base Rate Interest
Payment Date. The Letter of Credit Fee shall be determined by multiplying the
applicable "Letter of Credit Fee Rate" (as defined below) times the average
Letter of Credit Outstandings during the quarterly period ending on such Base
Rate Interest Payment Date. The "Letter of Credit Fee Rate" shall be that rate
per annum specified in column (3) in the table below, based upon the Funded Debt
to EBITDA Ratio for the Company set forth in column (2), as set forth in the
Quarterly Compliance Certificate, such Letter of Credit Fee Rate to change
effective with each change in the applicable percentage of the Funded Debt to
EBITDA Ratio:
(1) (2) (3)
Level Funded Debt to EBITDA Ratio Letter of Credit Fee Rate
1 Less than 1.25 162.5 basis points
2 Greater than or equal to 1.25, and less than 200.0 basis points
or equal to 1.75
3 Greater than 1.75 237.5 basis points
Of the total Letter of Credit Fee payable each quarter, that portion which is
calculated by multiplying 12.5 basis points (one-eight of one percent, or
0.125%) times the average Letter of Credit Outstandings during the quarterly
period ending on such Base Rate Interest Payment Date shall be payable to the
Administrative Agent in consideration of the Administrative Agent's services and
risks in issuing Letters of Credit. In addition to the foregoing, the Borrowers
shall pay the Administrative Agent all other customary issuance, administration,
draw, transfer, extension, renewal and similar fees, and shall reimburse all
expenses incurred by the Administrative Agent in connection with the issuance
and administration of each Letter of Credit and any draws, transfers, extensions
and renewals thereof.
Section 2.12 Additional Compensation; Changed Circumstances;
Capital Adequacy.
(a) Compensation for Taxes, Reserves and Expenses on
Outstanding Loans. If, by virtue of any change in any Law or guideline or
interpretation or application thereof, any Governmental Authority charged with
the interpretation or administration thereof or compliance with any request or
directive of any central bank or other Governmental Authority (whether or not
having the force of law):
-35-
(i) subjects any Lender, the Administrative Agent or
the Collateral Agent to any tax, or changes the basis of taxation, with respect
to this Agreement, any Note, any Vessel Mortgage, any other Loan Document,
either Loan, any Advance, any Letter of Credit or payments by any of the
Borrowers of principal, interest, commitment fee or other amounts due from the
Borrowers hereunder or under the Notes (except for Taxes on or measured based on
the overall net income of a Lender imposed by the federal, state and local
jurisdictions in which a Lender's, the Administrative Agent's and the Collateral
Agent's respective principal executive office or lending office is located);
(ii) imposes, modifies or deems applicable any
reserve, special deposit or similar requirement against assets held by, credit
extended by, deposits with or for the account of, or other acquisition of funds
by, a Lender; or
(iii) imposes upon a Lender, the Administrative Agent
or the Collateral Agent any other condition or expense with respect to this
Agreement, any Note, any Vessel Mortgage or any other Loan Document, or its
making, maintenance or funding of any part of the Loans or any Advance or the
issuance of any Letter of Credit,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense upon any Lender, the Administrative
Agent or the Collateral Agent with respect to this Agreement, the Notes, the
Vessel Mortgages, any other Loan Document, or the issuance, making, maintenance
or funding of any part of either Loan or any Advance or any Letter of Credit by
an amount which a Lender, the Administrative Agent or the Collateral Agent (as
the case may be) deems to be material (each Lender being deemed for this purpose
to have made, maintained or funded each Portion of the Loan from a Corresponding
Source of Funds), the Administrative Agent shall from time to time notify the
Borrowers, in reasonable detail, of the amount determined in good faith (using
any averaging and attribution methods employed in good faith) by the Lender, the
Administrative Agent or the Collateral Agent (as the case may be) (which
determination shall be conclusive, absent manifest error) to be necessary to
compensate the Lender, the Administrative Agent or the Collateral Agent for any
increased cost actually incurred due to such increase in cost, reduction in
income or additional expense (net of any possible tax savings directly
attributable thereto). Such amount shall be due and payable by the Borrowers ten
(10) Business Days after such notice is received.
(b) Indemnity. In addition to the compensation required by
subsection (a) hereof, the Borrowers shall indemnify the Lenders and the Agents
and their respective agents, from and against all claims, liability, loss, cost
and expense (including loss of margin) which any one or more of them sustain or
incur as a consequence of:
(i) payment, prepayment or conversion of any part of
any Portion of a Loan on a day other than the last day of the corresponding
LIBOR Rate Interest Period or a day on or after the Maturity Date or other date
of maturity of any Portion of a Loan (whether or not such payment, prepayment or
conversion is mandatory or automatic and whether or not such payment or
prepayment is then due);
(ii) attempt by the Borrowers to revoke (expressly,
by later inconsistent notices or otherwise) in whole or part any notice stated
herein to be irrevocable (the Administrative Agent having in its sole discretion
the options (A) to give effect to such attempted revocation and obtain indemnity
under this Section 2.12 or (B) to treat such attempted revocation as having no
force or effect, as if never made);
-36-
(iii) default by a Borrower in the performance or
observation of any covenant or condition contained in this Agreement, any Note,
any Vessel Mortgage or any other of the Loan Documents, including without
limitation any failure of a Borrower to pay when due (by acceleration or
otherwise) any principal, interest, commitment fee or any other amount due
hereunder or under any Note or any of the other Loan Documents; or
(iv) the ownership, chartering, operation, damage or
destruction of any Vessel and any damages, injuries, losses, liabilities,
expenses or claims which any Vessel causes to third Persons or to other
property.
If any Lender, the Administrative Agent or the Collateral Agent, or any of their
respective agents, sustains or incurs any such loss or expense the affected
parties shall from time to time notify the Borrowers and the Administrative
Agent, in reasonable detail, of the amount determined in good faith by them to
be necessary to indemnify them for such loss or expense. Such amount shall be
due and payable by the Borrowers ten (10) Business Days after such notice is
received.
(c) Circumstances Affecting LIBOR Rate Availability. If with
respect to any LIBOR Rate Interest Period the Administrative Agent or any Lender
(after consultation with Administrative Agent) shall determine that, by reason
of circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being offered or are
otherwise unavailable to the Administrative Agent or such Lender for such LIBOR
Rate Interest Period, then the Administrative Agent shall promptly give notice
thereof to the Borrowers. Thereafter, until the Administrative Agent notifies
the Borrowers that such circumstances no longer exist, the obligation of the
Lenders to make LIBOR Rate Loans and the right of the Borrowers to convert any
Loan to or continue any Loan as a LIBOR Rate Loan shall be suspended, and the
Borrowers shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such LIBOR Rate Loans together with accrued
interest thereon, on the last day of the then current LIBOR Rate Interest Period
applicable to such LIBOR Rate Loan or convert the then outstanding principal
amount of each such LIBOR Rate Loan to a Base Rate Loan as of the last day of
such LIBOR Rate Interest Period.
(d) Laws Affecting LIBOR Rate Availability. If, after the date
hereof, the introduction of, or any change in, any applicable Law or any change
in the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such Governmental
Authority, central bank or comparable agency, shall make it unlawful or
impossible for any of the Lenders to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to
the Administrative Agent and the Administrative Agent shall promptly give notice
to the Borrowers and the other Lenders. Thereafter, until the Administrative
Agent notifies the Borrowers that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrowers to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrowers may select only Base Rate Loans
hereunder, and (ii) if any of the Lenders may not lawfully continue to maintain
a LIBOR Rate Loan to the end of the then current LIBOR Rate Interest Period
applicable thereto as a LIBOR Rate Loan, the applicable LIBOR Rate Loan shall
immediately be converted to a Base Rate Loan for the remainder of such LIBOR
Rate Interest Period.
-37-
(e) Capital Requirements If either (i) the introduction of, or
any change in, or in the interpretation of, any applicable Law or (ii)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any corporation controlling such Lender as a consequence of,
or with reference to, the Separate Commitments and other commitments of this
type, below the rate which the Lender or such other corporation could have
achieved but for such introduction, change or compliance, then within five (5)
Business Days after written demand by any such Lender, the Borrowers shall pay
to such Lender from time to time as specified by such Lender additional amounts
sufficient to compensate such Lender or other corporation for such reduction. A
certificate as to such amounts submitted to the Borrowers and the Administrative
Agent by such Lender, shall, in the absence of manifest error, be presumed to be
correct and binding for all purposes.
Section 2.13 Payments by the Borrowers in General.
(a) Time, Place and Manner. All payments due to the
Administrative Agent and the Lenders under this Agreement, the Notes and the
other Loan Documents shall be made to the Administrative Agent at the
Administrative Agent Office or to such other Person or at such other address as
the Administrative Agent may designate by written notice to the Borrowers. Until
further notice from the Administrative Agent and except as otherwise provided
herein, all such payments shall be made by charging the Borrowers' deposit
account with the Administrative Agent. Except as otherwise set forth in this
Agreement, a payment shall not be deemed to have been made on any day unless
such payment has been received by the required Person, at the required place of
payment in Dollars in funds immediately available to such Person, no later than
12:00 p.m. Prevailing Time on such day; provided, however, that the failure of
the Borrowers to make any such payment by such time shall not constitute a
Default hereunder so long as such payment is received no later than 3:00 p.m.
Prevailing Time on such day, but any such payment received later than 12:00 p.m.
Prevailing Time on such day shall be deemed to have been made on the next
Business Day for the purpose of calculating interest on the amount paid,
provided further, that any such payment made with the proceeds of Loans shall be
deemed to have been made on the date of the making of such Loans, so long as
such proceeds are immediately so applied and are not otherwise disbursed to the
Borrowers.
(b) No Reductions. All payments due to the Administrative
Agent or any Lender under this Agreement, the Notes and the other Loan
Documents, shall be made by the Borrowers without any reduction or deduction
whatsoever, including any reduction or deduction for any charge, set-off,
holdback, recoupment or counterclaim (whether sounding in tort, contract or
otherwise).
-38-
(c) Authorization to Charge Accounts. The Borrower hereby
authorizes the Administrative Agent to charge any amounts due under this
Agreement against any or all of the demand deposit or other accounts of
Borrowers with the Administrative Agent (whether maintained at a branch or
office located within or without the United States), with the Borrowers
remaining liable for any deficiency. The Administrative Agent shall give the
Borrower one day prior notice of the amount to be charged; provided, however,
that advance notice shall not be required to charge any amount due for interest
on the Unused Commitment Fee or the Letter of Credit Fee, and the Administrative
Agent shall only advise of such charge after such charge has been made.
(d) Extension of Payment Dates if Not a Business Day. Whenever
any payment to the Administrative Agent or any Lender under this Agreement or
the other Loan Documents would otherwise be due (except by reason of
acceleration) on a day that is not a Business Day, such payment shall instead be
due on the next succeeding Business Day unless, in the case of a payment of the
principal of LIBOR Rate Loans, such extension would cause payment to be due in
the next succeeding calendar month, in which case such due date shall be
advanced to the next preceding LIBOR Rate Business Day. If the due date for any
payment under this Agreement, the Notes or the other Loan Documents is extended
(whether by operation of any Loan Document, applicable Law or otherwise), such
payment shall bear interest for such extended time at the rate of interest
applicable hereunder.
(e) Disbursement of Payments to Lenders. The Administrative
Agent shall promptly distribute to each applicable Lender its ratable share of
each payment received by the Administrative Agent under this Agreement, the
Notes and the other Loan Documents for the account of such Lender by crediting
an account of such Lender at the Administrative Agent Office or by wire transfer
to an account of such Lender at an office of any other commercial bank located
in the United States or at any Federal Reserve Bank designated by such Person.
Unless the Administrative Agent shall have received notice from Borrowers prior
to the date on which any payment is due to any Lenders under this Agreement, the
Notes or the other Loan Documents that the Borrowers will not make such payment
in full, the Administrative Agent may assume that the Borrowers have made such
payment in full to the Administrative Agent on such date and the Administrative
Agent, in its sole discretion may, in reliance upon such assumption, cause to be
distributed to each applicable Lender on such due date, a corresponding amount
with respect to the amount then due to such Person. If and to the extent that
the Borrowers shall not have so made such payment in full to the Administrative
Agent, and the Administrative Agent shall have so distributed to such Lender or
Lenders a corresponding amount, such Lender shall, on demand, repay to the
Administrative Agent the amount so distributed together with interest thereon,
for each day from the date such amount is distributed to such Lender until the
date such Person repays such amount to the Administrative Agent, at the Federal
Funds Rate until (and including) the third Business Day after demand is made and
thereafter at the Base Rate. Nothing in this Section 2.13(e) shall relieve the
Borrowers from any payment obligations.
-39-
Section 2.14 Special Provisions Regarding Certain Obligations of
the Borrowers.
(a) Each Borrower hereby: (i) expressly and irrevocably
waives, on behalf of itself and its successors and permitted assigns (including
any surety) until the final and irrevocable payment in full of all Obligations,
any and all rights at law or in equity to subrogation, to reimbursement, to
exoneration, to contribution, to indemnification, to set off or to any other
rights that could accrue to a co-borrower, co-obligor, guarantor, surety or
accommodation party against any other borrower, co-borrower, co-obligor,
guarantor, surety or accommodation party, and which such Borrower may have or
hereafter acquire against any other Borrower in connection with or as a result
of the execution, delivery and/or performance of this Credit Agreement, any
Note, any other Loan Document or the Obligations; and (ii) acknowledges and
agrees (A) that this waiver is intended to benefit the Lenders and the Agents,
and shall not limit or otherwise adversely affect any Borrower's liability
hereunder to the Lenders or the enforceability of the Obligations by the Lenders
against any of the Borrowers, and (B) that the Lenders and the Agents and their
respective successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 2.13 and their rights under
this Section 2.13 shall survive payment in full of the Obligations.
(b) The liability of each Borrower (other than Maritrans)
hereunder and under the Notes and other Loan Documents, and otherwise with
respect to the Obligations, shall be limited to an amount (which may change from
time to time) not to exceed as of any date of determination the maximum amount
that can be claimed by the Lenders from such Borrower under any Note, this
Agreement, any of the other Loan Documents or otherwise with respect to any of
the Obligations without rendering such claim voidable or avoidable under Section
548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute,
or common law, after taking into account, among other things, such Borrower's
right of contribution and indemnification from each other Borrower under
subsection (a) of this Section 2.13. Maritrans consents to the foregoing and
acknowledges that such limitations do not apply to Maritrans' liability for any
of the Obligations.
(c) It is contemplated that one or more Borrowers (each, in
such capacity, an "Affiliated Obligor") may, from time to time now or hereafter,
incur obligations (whether fixed or contingent, direct or indirect, or
otherwise, collectively, "Affiliate Obligations") to one or more other Borrowers
(each, in such capacity, an "Affiliated Obligee"). Until the final and
irrevocable payment in full of all Obligations:
(i) No Affiliate Obligations may be incurred except
in the ordinary course of the business of each of the Affiliated Obligor and
Affiliated Obligee, and on arms' length terms and for adequate consideration and
consistent with the other provisions of this Agreement and the other Loan
Documents.
(ii) Each Affiliated Obligee irrevocably subordinates
and postpones, and agrees not to demand, xxx for, take, accept or receive
(whether directly or indirectly, voluntarily, involuntarily, by operation of
law, by set-off or application against any other indebtedness or otherwise),
from any Affiliated Obligor or any third party, and each Affiliated Obligor
agrees not to make, or to cause any third party to make, directly or indirectly,
any payment on account of any Affiliate Obligations, nor to accept any security
therefor; notwithstanding the foregoing, so long as no Event of Default or
Potential Default shall have occurred and be continuing, an Affiliated Obligor
may make regularly scheduled payments in the ordinary course of business on its
Affiliate Obligations on arms' length terms, provided that any such payments are
not void or voidable as against unsecured creditors of the Affiliated Obligor.
-40-
(iii) Each Affiliated Obligee hereby subordinates and
postpones, in lien, operation and effect, any and all Liens, interests, rights
of setoff or recoupment or the like, and any other sources of recovery or
repayment, securing any of the Affiliate Obligations to the Transaction Liens
and rights of setoff or recoupment or the like favoring the Lenders with respect
to the Obligations from time to time hereafter.
(iv) Each Affiliated Obligee agrees (A) to deliver to
the Administrative Agent for the benefit of the Lenders and, pending such
delivery, to hold in trust for the Lenders, any payments made or property
delivered to such Affiliated Obligee in violation of the provisions of this
Section 2.13, and (B) that it will not assign or transfer any Affiliate
Obligations to anyone.
ARTICLE III
Conditions to Loans; Closing; Funding
Section 3.1 Conditions Precedent to the Loans. The obligations of the
Lenders to make the Loans and any Advances, and issue any Letters of Credit,
pursuant hereto are subject to the accuracy, as of the date hereof and as of the
respective date of any such Advance and the issuance of any Letter of Credit, of
the representations and warranties herein contained, to the performance by each
of the Borrowers of its respective obligations to be performed hereunder on or
before the date hereof, and to the compliance by the Borrowers with the
following further conditions on or before the Closing Date:
(a) Representations and Warranties. The representations and
warranties contained in Section 4.2 and in Article V hereof shall be true in all
material respects on and as of the Closing Date and the respective date of each
Advance and the issuance of any Letter of Credit, and no Event of Default or
Potential Default shall have occurred and be continuing or shall exist, and
Borrowers shall confirm the same by certificate to the Administrative Agent.
(b) Note. Each Borrower shall have executed and delivered to
each Lender the respective Note payable to such Lender.
(c) Vessel Mortgages. The applicable Borrowers shall have
executed and delivered to the Collateral Agent, in recordable form, the Vessel
Mortgages for each of the Vessels, along with assurances satisfactory to the
Administrative Agent and Lenders' Counsel of the proper recording of the Vessel
Mortgages in the Documentation Center and the status of the Vessel Mortgage, and
endorsement by the Documentation Center, as a first priority "preferred
mortgage", as defined in 46 U.S.C. Section 31301(6).
-41-
(d) Loan Documents. Each of the Borrowers, the Lenders, the
Agents and the Guarantors shall have executed and delivered counterparts of this
Agreement and the other Loan Documents to which it is a party.
(e) Opinions of Counsel. The Borrowers and the Guarantors
shall have delivered to the Lenders, the Agents and Lenders' Counsel favorable
opinions of their corporate and special financing and maritime counsel, dated
the Closing Date, each in form and substance satisfactory to the Lenders, the
Agents and Lenders' Counsel.
(f) Insurance. Evidence satisfactory to the Lenders, the
Agents and Lenders' Counsel that all insurance coverage required to be obtained
under Section 6.4 hereof and under Article 3 of the Vessel Mortgages has been
obtained, that such insurance is in force for each Vessel and a report of an
insurance broker or attorney's summary of insurance, all in form and substance
satisfactory to the Lenders, the Agents and Lenders' Counsel.
(g) Evidence of Classification and Other Documents. Evidence
of classification, together with such other documents, opinions, certificates
and evidence as Lenders, the Agents and Lenders' Counsel may reasonably request,
including without limitation such documentation as they may reasonably request
regarding each Vessel and any charters, subcharters, operating agreements or
other matters related to each Vessel.
(h) Reorganization Documents. Such documents as the Lenders,
the Agents and Lenders' Counsel may reasonably request relating to the
reorganization of Maritrans and its Subsidiaries, including without limitation
information relating to assets and liabilities of each entity involved in such
reorganization before and after the effective date of the reorganization.
(i) Satisfaction of Certain Debt. The Borrowers shall have
delivered to the Lender and the Agents satisfactory documentation which
establishes that Borrowers have paid, satisfied and discharged all of the Note
Purchase Debt. In addition, all of the Old Mellon Debt shall be paid in full
simultaneously with the Closing.
(j) Commitments. Commitments, upon terms and conditions
satisfactory to the Borrowers and to Mellon, as arranger of the Credit
Facilities, for financial institutions to become, subject to all of the terms
and conditions of this Agreement and the other Loan Documents, Lenders, shall
have been obtained in the aggregate principal amount of $85,000,000.
(k) Covenants. The Closing Date shall, with respect to the
financial maintenance covenants contained in Section 6.2(j), be deemed a
"Measuring Date" and all of such covenants shall be complied with as of the
Closing Date.
(l) Condition of Borrowers. The Lenders shall be satisfied, in
their sole discretion, with (i) the financial condition of each Borrower, (ii)
the operations, assets, nature of the assets, liabilities and business prospects
of each Borrower and (iii) the tax status, ownership, capital, corporate
organization and legal structure of each Borrower.
(m) No Material Adverse Effect. There shall have been no
Material Adverse Effect since July 1, 2001 with respect to any Borrower.
-42-
(n) Proceedings. All proceedings to be taken in connection
with the transactions contemplated by this Agreement and all documents incident
thereto shall be satisfactory in form and substance to Lenders, the Agents and
Lenders' Counsel.
(o) Fees. Borrowers shall have paid and reimbursed to Lenders,
the Agents and Lenders' Counsel, or adequate provisions shall have been made
for, such fees and expenses as may be applicable to this Agreement, the Closing,
the Loans, any Advance or Letter of Credit, any Vessel Mortgage or otherwise in
connection with the subject transactions.
(p) Appraisals. Appraisals for each Vessel which Appraisals
shall reflect, in the aggregate, that the appraised value of all of the Vessels
is no less than $150,000,000.
(q) Consents and Approvals. All necessary filings with,
notices to, and consents and approvals of Governmental Authorities and third
Persons shall have been made or obtained.
Section 3.2 Closing. The Closing shall commence on November 19, 2001
and shall be completed at or before 11:59 P.M. Prevailing Time on that date, or
at such later dates and times as the parties hereto may mutually agree (the
"Closing Date"), and shall be conducted at the offices of Xxxxxxxx Ronon Xxxxxxx
& Xxxxx, LLP, or elsewhere as the parties may reasonably determine.
ARTICLE IV
Collateral; Grants of Liens and Security Interests
Section 4.1 Grant of Liens and Security Interests. As additional
security for the Obligations, each Borrower, jointly and severally, hereby
assigns and pledges to Mellon, in its capacity as the Collateral Agent, for the
benefit of the Agents and the Lenders, and grants to Mellon, in its capacity as
the Collateral Agent, for the benefit of the Agents and the Lenders, a lien upon
and security interest in, the entire interest of each Borrower (whether legal,
beneficial, equitable or otherwise, and whether present, future, contingent or
otherwise) in the following described property (whether now owned or existing or
hereafter arising or acquired) and all proceeds thereof in any form (including
without limitation cash and noncash proceeds, insurance proceeds, deposit
accounts, securities, securities entitlements and financial assets) and proceeds
of proceeds (hereinafter all collectively referred to as the "Collateral"):
(a) All charters (whether bareboat, voyage, time or
otherwise), subcharters (whether bareboat, voyages, time or otherwise),
operating agreements and other contracts relating in any way to any one or more
of the Vessels (collectively, the "Charters and Contracts");
(b) All freights, demurrage and dead freights earned or to be
earned by each Vessel (collectively, "Freights");
(c) All monies payable or which may become payable by any
charterer, shipper, operator, contracting party, or other person or corporation,
to any Borrower or its subcharterers or operators in any way related to any one
or more of the Vessels or any of the Charters and Contracts (collectively, the
"Receivables");
-43-
(d) The Vessels and all engines, boilers, machinery, masts,
anchors, cables, rigging, tackle, apparel, furniture, boats, chains, equipment,
inventory, fixtures and all other appurtenances appertaining and belonging to
each Vessel, whether aboard or removed from the Vessel, together with all
additions, improvements, accessions, and/or replacements thereto or thereof
(collectively, the "Appurtenances");
(e) All casualty, liability, property, indemnity, hull, war
risk, pollution and marine insurance, protection and indemnity policies and
coverages, and rights to payments, benefits, protections and performances
thereunder, relating to any of the Vessels or to services rendered or to be
rendered under any shipping contracts, charters, operating agreements or the
like (collectively, the "Insurance"); and
(f) All other accounts, contract rights, general intangibles,
payment intangibles, commercial tort claims, letter of credit rights and
software relating to each Vessel, including without limitation any which may be
evidenced in whole or part by instruments, documents, letter of credit rights,
chattel paper, securities, securities entitlements, financial assets or any
other tangible or intangible form whatever.
The foregoing grant of liens and security interests (collectively, the "Credit
Agreement Security Interest") is given for security purposes and this Agreement
shall, to the extent necessary to confirm its enforceability, also be deemed a
security agreement. No Borrower shall be deemed to have hereby delegated any of
its responsibilities to the Agents and the Lenders under any of the Charters and
Contracts except to the extent the Collateral Agent or any other agent of the
Lenders expressly assumes such responsibilities in writing and is legally
permitted to assume such responsibilities. Except as set forth in Section 4.7,
the Credit Agreement Security Interest shall not be discharged from the
Collateral by virtue of any discharge, satisfaction or foreclosure of any Vessel
Mortgage, but shall supplement each Vessel Mortgage as to the related Vessel and
shall continue in the proceeds of any Vessel Mortgage and shall continue to
secure all Obligations until they are paid finally and in full, and shall remain
in full force and effect until terminated of record in one or more written
instruments executed by the Collateral Agent or other authorized agent of the
Lenders.
Section 4.2 Representation and Warranties With Respect to Collateral.
In addition to any other representations and warranties contained in this
Agreement or any Vessel Mortgage or other Loan Document, Borrowers jointly and
severally represent and warrant and, so long as any Obligations remains unpaid,
shall be deemed continuously to represent and warrant that (a) all Charters and
Contracts are genuine and enforceable in accordance with their terms against the
party obligated to pay hire or other amounts under the same; (b) each Borrower
is the sole owner of the Charters and Contracts carried on records provided to
the Lenders or the Agents as owned by it, free and clear of all Liens except the
Transaction Liens and the applicable Vessel Mortgage; (c) neither the charterer
nor any other obligor with respect to any Collateral, including without
limitation any person or entity with any interest in or obligation related to
any Vessel, any of the Charters and Contracts, the Appurtenances or the
Insurance (hereinafter each referred to as the "Account Debtor") has any
defense, set-off, claim or counterclaim which can be asserted against the
Lenders or the Agents, whether in any proceeding to enforce the Collateral or
-44-
otherwise; (d) each Borrower is authorized to grant the Transaction Liens and
enter into the transactions and agreements secured by the Collateral; (e) each
Borrower noted as owning a Vessel is the sole owner of the whole of the Vessel
and all Appurtenances pertaining thereto; (f) any copies of any of the Charters
and Contracts heretofore submitted to Lenders or either of the Agents represent
the entire agreement with respect to any such Charters and Contracts, and all
such Charters and Contracts remain in full force and effect, and no event has
occurred which is an event of default, or with the passing of time or the giving
of notice or both would be an event of default, by the parties thereunder, nor
does any Borrower anticipate the termination of any of the Charters and
Contracts in the foreseeable future for any reason; and (f) the "location" of
each Borrower (as defined in the UCC) is set forth in Schedule 5.22.
Section 4.3 Covenants With Respect to Collateral. In addition to any
other covenants, agreements or undertakings set forth in this Agreement, any
Vessel Mortgage or any other Loan Document, each Borrower agrees that it (a)
will defend the Collateral against the claims and demands of all other parties,
including, without limitation, defenses, set-offs, claims and counterclaims
asserted by any other party to any agreements relating to any Collateral; (b)
will keep the Collateral free of all Liens except Permitted Liens, the
Transaction Liens and the applicable Vessel Mortgage, and will not sell,
transfer, assign, deliver or otherwise dispose of any Collateral or any interest
therein except in accordance with the terms of this Agreement and other Loan
Documents; (c) will keep, in accordance with GAAP, accurate and complete records
concerning the Collateral, and at the request of the Collateral Agent or the
Administrative Agent, will xxxx all or any such records and all or any
Collateral to indicate the Transaction Liens granted to the Collateral Agent and
will permit the Collateral Agent or its agents to inspect the Collateral and to
audit and make extracts from such records or any of Borrower's books, ledgers,
reports, correspondence and other records; (d) will deliver to the Collateral
Agent and the Administrative Agent on demand executed originals or certified
copies of any or all Charters and Contracts, policies of insurance, or other
documents relating to or evidencing any Collateral or any part thereof; (e) will
notify the Collateral Agent and the Administrative Agent promptly in writing, of
any change in the address specified in Section 10.4 at which records concerning
the Collateral are kept; (f) will notify the Collateral Agent and the
Administrative Agent immediately of any material default by any third party in
payment or other performance of his obligations with respect to any Collateral;
(g) without the prior written consent of a Lender Majority, will not make or
agree to make any material alteration, modification, termination, lapse (whether
by its terms or otherwise) or cancellation of, or substitution for, or credits,
discounts, adjustments, offsets or allowances on, any of the Charters and
Contracts or any other Collateral; (h) will keep all tangible property in good
maintenance and repair, and fully insured at all times against fire and other
casualty and extended coverage risks, and shall maintain adequate public
liability and marine insurance with respect to the operation of the Collateral,
all as more fully provided in the applicable Vessel Mortgage and this Agreement;
(i) will notify the Collateral Agent and the Administrative Agent of any change
in its organizational identification number, federal tax identification number,
form of entity or jurisdiction of its organization; (j) in connection herewith,
will execute and deliver to the Collateral Agent and the Administrative Agent,
as requested, such undertakings, instruments, financing statements, certificates
and other documents, and all amendments thereto and extensions and continuations
thereof, as the Collateral Agent and/or the Administrative Agent may request,
pay all costs of title and lien searches and filing financing statements,
assignments and other instruments and documents in all public offices requested
-45-
by the Collateral Agent and/or the Administrative Agent, and do such other
things as the Collateral Agent or the Administrative Agent may request to more
fully evidence and perfect the Transaction Liens and Agents' and Lenders' rights
in any Collateral; (k) will, upon request of the Collateral Agent or the
Administrative Agent, immediately execute and deliver, and to cause any third
parties to immediately execute and deliver, one or more control agreements,
bailee acknowledgments or other similar agreements governing any part or all of
the Collateral, all in form and substance acceptable to the Collateral Agent and
the Administrative Agent, in order to further perfect and protect the Lenders'
rights in any and all Collateral; (l) hereby authorizes the Collateral Agent,
the Administrative Agent and their agents to file and deliver such financing
statements, amendments, continuation statements and other public filings or
notices as the Collateral Agent or Administrative Agent may deem appropriate to
perfect, protect and enforce the Lenders' rights in any and all Collateral,
without further signature or consent by any Borrower, and the Collateral Agent
or the Administrative Agent will use its best efforts to provide copies of such
filings or notices to the Borrowers; (m) will not, nor permit any third party on
its behalf to, cause the filing of any amendments, modifications, supplements,
satisfactions, discharges, releases, subordinations, termination statements or
other modifications to any public record filings relating to the Collateral
except strictly with the prior written consent of the Collateral Agent and the
Administrative Agent; and (n) will comply with each and every covenant and
condition set forth in any Vessel Mortgage by which it is bound.
Section 4.4 Verification of Collateral. The Collateral Agent and the
Administrative Agent shall each have the right to verify the existence, location
or condition of all or any Collateral in any manner and through any medium it or
they may consider appropriate, including by way of audit verifications or
estoppel requests from third parties, and each Borrower agrees to furnish all
assistance and information and perform any acts which either Agent may require
in connection therewith.
Section 4.5 Notification and Payments. At any time upon and after the
occurrence of any Event of Default (as hereinafter defined) which remains
uncured, the Collateral Agent or the Administrative Agent may notify all or any
parties of the Transaction Liens and may also direct all or any parties to make
all payments on or in respect to any or all Collateral to the Collateral Agent.
All payments on, and other proceeds from Collateral (including cash proceeds,
insurance proceeds and proceeds of proceeds) received by the Collateral Agent
with respect to any Collateral shall be applied as provided in this Agreement or
the applicable Vessel Mortgage.
-46-
Section 4.6 Mortgages on Certain Additional Vessels. (a) If any
proceeds of any Loan are used, directly or indirectly, for or toward the
purchase of any Additional Vessels, Borrowers agree to cause the purchaser of
any such Additional Vessels to become a "Borrower" under this Agreement and to
execute, acknowledge and deliver to the Collateral Agent, for the benefit of the
Lenders, a first preferred ship mortgage on each of the Additional Vessels in an
amount equal to the amount of the proceeds of such Loan used, directly or
indirectly, for or toward the purchase of such Additional Vessel, subject to all
of the additional conditions and requirements applicable to Vessels, Vessel
Mortgages and the delivery thereof under this Agreement, including without
limitation supplements to the Insurance Report for each Additional Vessel.
(b) If, subsequent to the Closing Date, upon request of
Maritrans, any Company desires to subject an Additional Vessel to a Transactions
Lien, Borrowers agree to cause such Company to become a "Borrower" under this
Agreement and to execute, acknowledge and deliver to Collateral Agent, for the
benefit of the Lenders, a first preferred ship mortgage on each such Additional
Vessel in an amount equal to the amount requested by such Company as its maximum
borrowing amount, subject to all of the additional conditions and requirements
applicable to Vessels, Vessel Mortgages and the delivery thereof under this
Agreement, including, without limitation, supplements to the Insurance Report
and an Appraisal for each such Additional Vessel; provided, however, that
notwithstanding anything contained herein to the contrary, Lender will not be
required to make Advances to such Company in an aggregate amount in excess of
the maximum borrowing amount requested by such Company.
Section 4.7 Release of Certain Vessels and Borrowers re: Title XI
Financing. Lenders hereby consent to the release of, and the Collateral Agent is
hereby authorized to release and discharge from, the Transaction Liens created
by any of the Vessel Mortgages, the Credit Agreement or any of the other Loan
Documents, one or more Vessels from time to time on the written request of
Borrowers (at which time the Borrower which owns such Vessel shall likewise be
released from all obligations under the applicable Vessel Mortgage and the
Credit Agreement), provided that all of the following conditions shall have been
met:
(a) The request for such release and discharge contains a
certification from an Authorized Financial Officer that such request is directly
related to obtaining Title XI Financing for such Vessel;
(b) 60% of the aggregate appraised value of all Vessels
thereafter subject to Vessel Mortgages in conformance with the requirements of
this Agreement shall not be less than the then amount of the Aggregate
Commitment;
(c) No Potential Default or Event of Default shall have
occurred and be continuing, and the Borrowers shall have delivered a certificate
to such effect to the Agents, in form and substance satisfactory to each of
them; and
(d) The Administrative Agent shall, in connection with such
release and discharge, have received on behalf of the Lenders in immediately
available Funds at the Administrative Agent Office an amount, with respect to
each such Vessel to be so released and discharged, equal to the amount
calculated under Section 2.8(c) as (i) a mandatory prepayment against, and a
-47-
permanent reduction of, the Standby/Term Loan, and (ii) at such time as the
Standby/Term Loan Limit has been reduced to zero, as a mandatory payment against
the outstanding Revolving Credit Facility, together with any and all fees
(including reasonable attorneys' fees), costs and other expenses incurred by the
Agents in connection therewith.
Section 4.8 Updated Appraisals. On each of the second and fourth
anniversaries of the Closing Date, or at any time as requested by the Collateral
Agent upon the occurrence and during the continuance of a Potential Default or
an Event of Default or upon the occurrence of any event which could have a
Material Adverse Effect on the value of the Vessels, as determined by the
Collateral Agent in its sole discretion, Borrowers shall, at their sole cost and
expense, deliver to the Collateral Agent an updated Appraisal for each Vessel.
If the updated Appraisal indicates that 60% of the aggregate appraised value of
the Vessels (the "Updated Appraised Amount") is less than the then amount of the
Aggregate Commitment, then the Borrowers shall promptly either (a) cause an
Additional Vessel(s) to become subject to a Transactional Lien pursuant to
Section 4.6(b), or (b) reduce the Aggregate Commitment as permitted hereunder,
so that, after giving effect thereto, the Updated Appraised Amount equals or
exceeds the then amount of the Aggregate Commitment.
ARTICLE V
Representations and Warranties
The Borrowers jointly and severally represent and warrant to the
Lenders and the Agents as follows, which representations and warranties shall be
deemed reaffirmed as if given anew as a condition to, and as of the time of, the
making of each Advance:
Section 5.1 Organization, Authority, and Qualification. Each Borrower
(a) is an entity of the respective type, and duly organized, validly existing
and in good standing under the laws of the respective jurisdiction, with the
respective organizational identification number, noted opposite such Borrower's
name on Schedule 5.1, (b) has the power and authority to execute, deliver and
perform this Agreement, the Notes and the other Loan Documents to which it is a
party, and to borrow hereunder and thereunder, (c) is in all respects duly
qualified and licensed under all applicable Laws to own its properties,
including without limitation any Vessel and Collateral, and to carry on its
business as now conducted, and (d) is duly qualified as a foreign corporation to
do business and is in good standing in every jurisdiction where the character of
its properties or nature of its activities make such qualification necessary and
where the failure to so qualify would have a Material Adverse Effect on such
Borrower. All (100%) of the voting, equity and capital stock or other interests
in each Borrower other than Maritrans is owned beneficially, directly or
indirectly, by Maritrans.
Section 5.2 Legal Name; Tax Identification Numbers. The exact legal
name of each Borrower is as set forth on Schedule 5.2. Each Borrower has an
unique federal tax identification number set forth on Schedule 5.2, which is not
shared with any other entity, organization or individual, and the Administrative
Agent is authorized to identify each Borrower by its tax identification number
and/or organization identification number in any public filings.
-48-
Section 5.3 Subsidiaries. Except as set forth in Schedule 5.3, no
Borrower has any Subsidiaries or Consolidated Subsidiaries. Schedule 5.3 may be
updated by Borrowers from time to time after Closing.
Section 5.4 Financial Statements. The Borrowers have delivered to each
Lender the audited Consolidated and consolidating financial statements of the
Company as at and for the fiscal year ended December 31, 2000 (the "Audited
Date"), and the unaudited, Consolidated and consolidating financial statements
of the Company for the three (3) month periods ended March 31, June 30 and
September 30, 2001, respectively (collectively, the "Delivered Financial
Statements"). Such financial statements fairly reflect the Consolidated and
unconsolidated financial conditions of the Company and each Borrower as at such
dates and fairly reflect the results of the Consolidated and unconsolidated
operations of the Company and each Borrower for the periods then ended, all in
conformity with GAAP. Except as disclosed in Schedule 5.4 attached hereto, there
has been no material adverse change in the condition, financial or otherwise, of
the Company or any Borrower since the Audited Date. No Borrower has any material
obligations or liabilities which are not disclosed in the Delivered Financial
Statements or in a Schedule attached to this Agreement except obligations
arising in the ordinary course of business since September 30, 2001. Each
Borrower is Solvent on the date of this Agreement. The Borrowers have also
delivered to each Lender certain projections, which projections represent
Borrowers' good faith estimate of their anticipated financial performance.
Section 5.5 Default. No Borrower is in default in any material respect
under the provisions of any instrument evidencing any material obligation,
indebtedness, or liability of the Borrower or of any agreement relating thereto,
or under any order, writ, injunction, or decree of any Tribunal, or in default
in any material respect under or in violation of any order, regulation, or
demand of any Tribunal, which default or violation could have a Material Adverse
Effect on the Borrower.
Section 5.6 Authorization and Compliance with Laws and Material
Agreements. The execution, delivery and performance of this Agreement and the
execution, delivery and performance of each Note, each Vessel Mortgage and the
other Loan Documents, as applicable, to which any of the Borrowers is a party,
have been duly authorized by all requisite corporate action on the part of the
Borrowers and will not violate the corporate charter of any Borrower and will
not violate any provision of any Laws or any order of any Tribunal, and will not
conflict with, result in a breach of the provisions of, constitute a default
under, or result in the imposition of any Lien upon the assets of any Borrower
except as otherwise contemplated by this Agreement, or any provisions of any
indenture, mortgage, deed of trust or material franchise, permit, license or
note, or any other agreement or instrument to which a Borrower is now or may in
the future be a party, including, but not limited to, any Material Agreement.
-49-
Section 5.7 Litigation and Judgments. Except as disclosed in the Loan
Documents and on Schedule 5.7 attached hereto, there is no action, suit, or
proceeding, at law or in equity, or by or before any Tribunal, pending, or, to
the knowledge of Borrowers, threatened against or affecting any Vessel or any
Borrower or involving the validity or enforceability of the Loan Documents,
which, if adversely determined, could have a Material Adverse Effect on any
Borrower. Except as disclosed in the Loan Documents and on said Schedule 5.7,
there are no outstanding judgments in excess of $100,000.00 (net of any
insurance coverage which is not being contested by the insurer), against the
Borrowers or their respective assets or properties.
Section 5.8 Debt. Borrowers have no Debt in excess of $250,000, except
the Obligations and the Debt described in Schedule 5.8 attached hereto.
Section 5.9 Ownership of Properties; Liens. Borrowers have good and
indefeasible title or valid leasehold interests in all their material properties
and assets, real and personal, including the Vessels which have been acquired at
or prior to Closing, and all of their Receivables and equipment, and none of
such property or assets is subject to any Lien other than a Permitted Lien. A
complete and accurate list of all of the Vessels, together with the owner
thereof, is attached hereto as Schedule 5.9.
Section 5.10 Use of Proceeds; Margin Securities. No Borrower is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulations T, U or X of the Board of Governors of the Federal
Reserve System), and no part of the proceeds of a Loan under this Agreement will
be used to purchase or carry any such margin stock or to extend credit to others
for the purpose of purchasing or carrying any such margin stock. No Borrower nor
any Person acting on its behalf has taken or will take any action which might
cause this Agreement or any Note to violate any of said Regulations T, U, or X,
or any other regulation of the Board of Governors of the Federal Reserve System
or to violate the Securities Exchange Act of 1934, in each case as now in effect
or as the same may hereafter be in effect.
Section 5.11 Taxes. Except as may be set forth on Schedule 5.11
attached hereto, each Borrower has filed or is in the process of filing all
federal and state tax returns or reports required of it, including but not
limited to, income, franchise, employment, and sales Taxes, and has paid all tax
liability (other than such tax liability such Borrower is contesting in good
faith by appropriate proceedings being diligently conducted and for which
adequate reserves have been set aside by such Borrower), to the extent the same
has become due and before it may have become delinquent in accordance with such
returns, and no Borrower knows of any pending investigations of a Borrower by
any taxing authority, nor of any material pending but unassessed tax liability.
-50-
Section 5.12 ERISA.
(a) Relationship of Vested Benefits to Pension Plan Assets.
The present value of all vested benefits under each Plan maintained by Maritrans
or a Borrower that is a "defined benefit plan" as that term is defined in
Section 3(35) of ERISA, as from time to time in effect, does not exceed (on a
termination basis utilizing the same actuarial assumptions and asset values
contained in the most recent actuarial report for such Plan) the value of the
assets of the Plans allocable to such vested benefits.
(b) Prohibited Transactions. Neither any of the Plans nor any
trusts created thereunder, nor to the best knowledge of the Borrowers after
appropriate due diligence and investigation, any trustee or third-party
administrator thereof, has engaged in a "prohibited transaction", as such term
is defined in ERISA or Section 4975 of the Code, which could subject the Plans
or any of them, any such trust, or any trustee or administrator thereof, or any
party dealing with the Plans or any such trust to any material tax or penalty on
prohibited transactions imposed by said Section 4975.
(c) Reportable Events. Neither any of the Plans nor any trusts
created thereunder have been terminated, nor have there been any Reportable
Events with respect thereto since the effective date of ERISA that, individually
or in the aggregate, impose any material liability on the Borrower or Maritrans.
(d) Accumulated Funding Deficiency. Neither any of the Plans
nor any trusts created thereunder have incurred any "accumulated funding
deficiency", as such term is defined in Section 302 of ERISA (whether or not
waived), since the effective date of ERISA.
(e) Loan Transaction Not a Violation. To each Borrower's
knowledge, the consummation of the transactions described in the Loan Documents
do not involve any "prohibited transaction" as such term is defined in ERISA or
Section 4975 of the Code.
Section 5.13 Consents. No consent of any Person and no consent,
license, approval or authorization of, or registration or declaration with, any
Tribunal is required in connection with the execution, delivery and performance
of this Agreement, the Notes, and the other Loan Documents to which any Borrower
is a party, other than any consent required from the Lenders, the Administrative
Agent or the Collateral Agent under this Agreement and such other consents or
other actions that have been obtained as of the date hereof and delivered to the
Administrative Agent.
Section 5.14 Nature of Obligations. The execution and delivery of this
Agreement, the Notes, and the other Loan Documents to which each Borrower is a
party have been duly authorized by all necessary corporate proceedings on the
part of each Borrower, have been duly executed and delivered by each Borrower,
and are valid and binding obligations of each Borrower, and are enforceable in
accordance with their respective terms, except as the enforceability of such
terms may be limited by any Debtor Relief Laws or judicial decisions affecting
creditors' rights generally.
-51-
Section 5.15 Securities Laws. No Borrower, nor any Person acting or
purporting to act on behalf of any Borrower, has directly or indirectly offered
the Notes for sale to, or solicited any offer to buy the Notes, or otherwise
negotiated in respect thereof with, any Person (except the Lenders) and has not
done (or omitted to do) any other act, so as to bring the issuance or sale
thereof within the registration requirements of the Securities Act of 1933, as
amended, and each Borrower has complied with or is exempt from the registration
provisions of all state securities or "blue sky" Laws applicable to the issuance
or sale of the Notes.
Section 5.16 Disclosure. Except as disclosed on Schedule 5.16 attached
hereto, there is no significant material fact or condition relating to the
financial condition, results of operations, or business of any of the Borrowers,
nor any commitments or contingencies, which would have a Material Adverse Effect
on any of the Borrowers which has not been disclosed to each of the Lenders in
writing. None of the information pertaining to the Company contained in this
Agreement (including Schedules and Exhibits) and the other Loan Documents
contains, as of the date hereof, an untrue statement of a material fact or omits
a material fact necessary to make the statements contained herein or therein not
misleading. None of the statements, documents, certificates or other items
prepared or supplied by the Company with respect to the transactions
contemplated hereby contains an untrue statement of material fact or omits a
material fact necessary to make the statements contained therein not misleading.
Section 5.17 Genuineness of Writings. All writings heretofore exhibited
to any Lender or the Administrative Agent or the Collateral Agent by the
Borrowers which are of a material consequence are genuine and in all material
respects what they purport to be.
Section 5.18 Investment Company Act. No Borrower is an "investment
company" or a company "controlled by" an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
Section 5.19 Compliance with Laws. Each Borrower has all necessary
operating licenses, permits and approvals and is in material compliance with all
Laws.
Section 5.20 Environmental Matters. No Borrower has any knowledge of
any material environmental liabilities applicable to it on its assets or
business, or of any material violations by a Borrower of any State or federal
statutes, regulations, laws or orders pertaining to environmental matters,
including, without limitation, the Oil Pollution Act of 1990 ("OPA"), 33 U.S.C.
ss.2701, et seq., the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C.
ss.1251 et seq., the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA") as renewed by the Superfund Spill Compensation and
Reauthorization Act of 1986 ("XXXX TITLE III"), and the Resource Conservation
and Recovery Act ("RCRA"). No Borrower has received any summons, citation,
notice, directive, letter or other written communication from any Governmental
Authority that has not been delivered to the Lenders, concerning any intentional
or unintentional action or omission by the Borrowers resulting in any releasing,
spilling, leaking, pumping, pouring, emitting, emptying, dumping or otherwise
disposing of "Hazardous Waste" (as defined in 42 U.S.C. Section 6903(5)) or
"Hazardous Substance" (as defined in 42 U.S.C. Section (9609(14)), or any "Oil"
(as defined in OPA) or any petroleum byproducts in violation of OPA or any other
applicable Law which creates or may create a material liability or such act or
omission. To the best knowledge of the Borrowers after appropriate due diligence
and investigation, no material Lien arising under or in connection with OPA,
FWPCA, RCRA, CERCLA or XXXX TITLE III has attached to any Vessel or any Charter
and Contract or to any revenues of, or any other real or personal property
(including, but not limited to any of the Collateral) owned by, a Borrower.
-52-
Section 5.21 Representations and Warranties Regarding Each Vessel.
(a) Liens, Charters, Operating Agreement, Etc. At the time of
each Advance, the Borrower will be the sole owner of the whole of each Vessel,
and there will not be any material Liens, charter, hire, towage, lightering,
hauling or rental agreements, or any obligations, liabilities or claims
affecting any Vessel, except for Permitted Liens, the Transaction Liens and the
Charter and Contracts and any others listed and described on Schedule 5.21
hereto or as may have been expressly disclosed in writing to Lenders with
reference to this Section 5.21(a). There have not occurred any events which,
with respect to any Vessel, have, do, will or could give rise to any Liens,
whether for damages arising out of tort, for wages, for necessaries, for general
average, or for salvage (including contract salvage), or otherwise of a
statutory, maritime or equitable nature, or Ordinary Maritime Liens.
(b) Citizenship and Eligibility for Documentation. Each
Borrower is, and shall continue to be, a citizen of the United States of
America, as defined and within the meaning of 12 U.S.C. Section 12102, and a
corporation established under the laws of the United States or of a State, whose
president or other chief executive officer and chairman of its board of
directors are citizens of the United States and no more of its directors are
noncitizens than a minority of the number necessary to constitute a quorum,
within the meaning of 46 U.S.C. Section 12102; and each Vessel is eligible for
documentation and is a "documented vessel" as such term is used in 46 U.S.C.
Section 31322. Any charterer or sub-charterer shall be an eligible party to
charter the Vessel in question under applicable Law.
(c) Insurance. Insurance meeting the requirements of Section
6.4 hereof and of Article 3 of the Vessel Mortgages is currently in force for
each Vessel in which each Borrower has an interest. The Collateral Agent is
named as an additional insured and loss payee with respect to each policy
coverage as provided in Section 6.4 hereof and in Article 3 of the Vessel
Mortgages, and the premiums for all such insurance coverage have been prepaid
for the current period.
(d) Certain Environmental Responsibilities. A COFR has been
duly issued by the United States Coast Guard, and a vessel response plan and a
spill prevention and contingency plan is in force, with respect to each Vessel
in which Borrowers have an interest, all in compliance with applicable Laws.
(e) Certain Regulatory Matters. No Vessel is subject to any
restriction under Title V or Title XI of the Merchant Marine Act of 1936 or with
respect to any Capital Construction Fund Agreement with MARAD.
-53-
Section 5.22 Locations. Each of the Borrower's assets and corporate
books and records, and all books and records relating to any of the Collateral
are located exclusively at their respective addresses first set forth in Section
10.4 and at the additional locations identified in Schedule 5.22 hereto. The
hailing port of each Vessel is as set forth in Schedule 5.22.
Section 5.23 Interstate Commerce Act. The Borrowers, each Vessel, and
the operation of each Vessel as contemplated in the Charters and Contracts, are
exempt from regulation under the federal Interstate Commerce Act and the rules
and regulations promulgated thereunder.
Section 5.24 Absence of Debt Offerings. Since September 1, 2001 no
Borrower, nor any Affiliate thereof, has engaged in any activities to offer,
place or arrange any Debt other than the Credit Facilities.
Section 5.25 Dividends. There are no limitations, whether by contract,
Law or otherwise, on the ability of a Borrower other than Maritrans to (a) pay
dividends to Maritrans, (b) to otherwise pay cash to Maritrans or (c) to make
loans or advances to any other Borrower.
Section 5.26 Intellectual Property. Each Borrower owns or possesses the
irrevocable right to use all of the patent, trademarks, servicemarks, trade
names, copyrights, licenses, franchises and permits and rights with respect to
the foregoing necessary to own and operate such Borrower's properties and to
carry on its business as presently conducted and presently planned to be
conducted without conflict with the rights of others. Schedule 5.26 sets forth
an accurate list and description of each such patent, trademark, service xxxx,
trade name, copyright, license, franchise and permit and right with respect to
the foregoing.
ARTICLE VI
Covenants and Continuing Agreements
Section 6.1 Affirmative Covenants. The Borrowers jointly and severally
covenant that during the term of this Agreement, and so long as any Obligations
are owed to the Lenders, the Administrative Agent or the Collateral Agent, it
and they shall each:
(a) Information Reporting Requirements. Comply with each of
the following:
(i) Annual Audit Reports. As soon as practicable, and
in any event within 120 days after the close of each fiscal year of the Company,
the Borrowers shall furnish to the Administrative Agent and each Lender fiscal
year end balance sheets, statements of income, retained earnings and cash flow
for Maritrans and its Consolidated Subsidiaries, in each case on a Consolidated
basis, for such fiscal year, and notes to each, all in reasonable detail,
setting forth in comparative form the corresponding figures for the preceding
fiscal year, with the consolidated statements and balance sheet of the Company
to be certified as being in conformity with GAAP by independent certified public
accountants of recognized national standing selected by the Borrowers and
acceptable to the Administrative Agent from time to time. The certificate or
report of such accountants shall be free of exceptions or qualifications which
the Administrative Agent shall not have consented to in writing.
(ii) Quarterly Reports. As soon as practicable, and
in any event within 60 days after the close of each of the first three quarters
of each fiscal year of the Company, the Borrowers shall furnish to the
Administrative Agent and each Lender unaudited Consolidated (and, upon request
consolidating) period-end balance sheets, statements of income, retained
earnings and cash flow for the Company and its Consolidated Subsidiaries,
-54-
respectively, for such fiscal quarter and for the period from the beginning of
such fiscal year to the end of such fiscal quarter, setting forth in comparative
form the corresponding figures for the same period or as of the same date during
the preceding respective fiscal quarter, certified by an Authorized Financial
Officer of the respective entity as presenting fairly the financial position of
the Company and its Consolidated Subsidiaries respectively as of the end of such
fiscal quarter and the results of their operations and cash flow for such fiscal
quarter, in conformity with GAAP.
(iii) Quarterly Compliance Certificates. Within 120
days after the end of each fiscal year and within 60 days after the end of each
of the first three quarters of each fiscal year of the Company, the Borrowers
shall deliver to the Administrative Agent a Quarterly Compliance Certificate
dated as of the end of such fiscal year or quarter and signed by an Authorized
Financial Officer.
(iv) Accountants' Certificate. Each set of
Consolidated statements and balance sheet delivered by the Borrowers pursuant to
Section 6.1(a)(i) shall be accompanied by a certificate or report dated the date
of such statements and balance sheet by the accountants who certified such
statements and balance sheet stating in substance that they have reviewed this
Agreement and the Quarterly Compliance Certificates delivered by the Borrowers
as of the end of such fiscal year, and that in making the examination necessary
for their certification of such statements and balance sheet they did not become
aware of any Event of Default or Potential Default or any inaccuracy in the
Quarterly Compliance Certificate as of the end of such fiscal year, or if they
did become so aware, such certificate or report shall state the nature and
period of existence thereof.
(v) Other Reports and Information. Promptly upon
their becoming available to the Borrowers, the Borrowers shall deliver to the
Administrative Agent a copy of (A) all regular or special reports (including
those on Form 10-K and Form 10-Q) or effective registration statements which
Maritrans or the Company or any Borrower shall file with the Securities and
Exchange Commission (or any successor thereto) or any securities exchange (other
than those on Form S-8 or any successor form), (B) all reports, proxy
statements, financial statements, management letters and other information
distributed by Maritrans to its shareholders or the financial community in
general, and (C) any reports submitted to any Borrower by independent
accountants in connection with any annual, interim or special audit.
(vi) Further Information. Promptly furnish to the
Administrative Agent such other information regarding any Borrowers as the
Administrative Agent may reasonably request.
(vii) Notice of Event of Default. Promptly upon
becoming aware of any Event of Default or Potential Default, the Borrowers shall
give the Administrative Agent notice thereof, together with a written statement
of an Authorized Financial Officer of the Borrowers setting forth the details
thereof and any action with respect thereto taken or contemplated to be taken by
any Borrower with respect thereto.
-55-
(viii) Notice of Material Adverse Change. Promptly
upon becoming aware thereof, the Borrowers shall give the Administrative Agent
notice about any material adverse change in the business, operations or
financial condition of any of them, individually or all of them, taken as a
whole.
(ix) Notice of Material Proceedings. Promptly upon
becoming aware thereof, any Borrower, as applicable, shall give the
Administrative Agent notice of the commencement, existence or written threat of
any proceeding by or before any Governmental Authority against or affecting it,
which, if adversely decided, would have a Material Adverse Effect on its
business, operations or financial condition individually, or of all of them,
taken as a whole, or on its ability to perform its obligations under the Loan
Documents to which it is a party.
(x) Notice of Other Material Defaults. Promptly upon
becoming aware of any material default under any agreement or instrument to
which any Borrower or any of their respective properties may be bound, any
Borrower, as applicable, shall give the Administrative Agent notice thereof,
together with a written statement of its Authorized Financial Officer, setting
forth the details thereof if such agreement or instrument or the consequences of
such default are material to its business, operations or financial condition
individually, or of all of them taken as a whole.
(xi) Budget and Projections. Prepare and deliver to
the Administrative Agent a budget and projections for each fiscal year.
(xii) Accounts Receivable Aging Report. Upon request
of the Administrative Agent, prepare and deliver to the Administrative Agent an
accounts receivable aging report, in form and substance reasonably satisfactory
to the Administrative Agent, covering such time periods as are specified by the
Administrative Agent.
(xiii) Unaudited Financial Reports. As soon as
practicable, and in any event within 120 days after the close of each fiscal
year of the Company, the Borrowers shall furnish to the Administrative Agent and
each Lender unaudited fiscal year end balance sheets, statements of income,
retained earnings and cash flow for Maritrans and its Consolidated Subsidiaries,
in each case on a consolidating basis, for such fiscal year, and notes to each,
all in reasonable detail.
(b) Visitation. Permit such persons as the Administrative
Agent may designate to visit and inspect any of their respective properties, to
examine and audit their respective books and records and to discuss their
respective affairs with their respective officers, employees, independent
accountants and independent engineers at such times and as often as the
Administrative Agent may reasonably request.
(c) Payment of Taxes. Pay or discharge on or prior to the date
on which penalties attach thereto, all Taxes, assessments and other governmental
charges or levies imposed upon it or any of its properties or income (including
such as may arise under Section 4062, Section 4063 or Section 4064 of ERISA, or
any similar provision of law); provided, however, that items of the foregoing
need not be paid while being contested in good faith and by appropriate
proceedings and if adequate reserves have been established with respect thereto
to the extent required by GAAP.
-56-
(d) Notice of Tax Lien. Promptly give the Administrative Agent
notice of the filing by any Governmental Authority of a Lien, levy or assessment
for any unpaid Taxes in the amount of $10,000.00 or more against any Borrower
other than Maritrans, or $100,000 or more against Maritrans.
(e) Businesses and Properties. Maintain substantially its
current corporate structure and primary lines of business, and maintain its
assets and properties in good condition and repair (normal wear and tear
excepted), and pay and discharge or cause to be paid and discharged when due,
the costs of repairs to or maintenance of the same; and notify the
Administrative Agent of any damage or casualties to any of its assets or
properties which shall require repairs costing in excess of $500,000.00 or
result in a reduction in value thereof, after repairs, in excess of $500,000.00,
within ten (10) calendar days of the occurrence thereof, and provide ten (10)
days' prior notice of the scrapping, sale or other transfer or disposition of
any Collateral not otherwise permitted hereunder.
(f) Environmental Considerations. Operate each Vessel only in
full compliance with an approved tank vessel response plan to the extent
required under OPA, any applicable industry standards and any applicable
requirements of insurance coverage. Each Borrower shall furnish to the
Administrative Agent, immediately upon receipt, a copy of any notice, summons,
citation, lawsuit, injunction, claim, directive, letter or other written
communication from any Governmental Authority or third Person, which alleges a
material liability under any Law.
(g) Qualifications; Licenses; Good Standing. Maintain their
respective corporate existence and good standing and their respective
qualifications or licenses to do business and their good standing in all
jurisdictions in which the Laws thereof require a Borrower to be so qualified or
licensed, and each Borrower shall qualify or obtain licenses to do business in
any additional jurisdictions in which the Laws thereof require any Borrower to
so qualify or be licensed in the future.
(h) Post-Closing Matters. At and after Closing, immediately
upon request of the Administrative and/or the Collateral Agent or any of its
attorneys or agents, execute, deliver and file of record all such amendments,
corrections and substitutions for the Notes, Vessel Mortgages, security
agreements, financing statements or other Loan Documents, as the Administrative
Agent or the Collateral Agent or its attorneys or agents may reasonably request
to evidence and perfect the Transaction Liens and give to the Collateral Agent
Vessel Mortgages which meet the requirements for a first priority, perfected,
preferred ship mortgage under applicable Law.
(i) Places of Business; Location of Collateral and Records;
Change of Name. Notify the Administrative Agent in writing thirty (30) days in
advance of (A) any change in a Borrower's State of incorporation, formation or
organization, (B) each change in any Location, (C) any Location coming into
existence hereafter, and (D) any event involving a change in a Borrower's name;
in each case providing the Administrative Agent with a Borrower's full new legal
name and, as filed, copies of corporate filings evidencing any name change, the
full street mailing address of each new Location, and complete copies, on
request, of all deeds, mortgages, leases, license, occupancy, storage, bailment
or warehousing agreements, or the like, affecting such Borrower's and any third
persons' rights respecting any Collateral or books or records relating thereto.
-57-
(j) Notice of Pension-Related Events. If a Potential Default
or an Event of Default shall have occurred and be continuing, then promptly
after a Borrower, Maritrans, any Controlled Group Member, or any administrator
of a Plan:
(i) receives the notification referred to in
subsections (i), (iv), or (vii) of Section 7.1(g) hereof,
(ii) has knowledge of (A) the occurrence of a
Reportable Event, which is required to be reported, with respect to a Plan; (B)
any event which has occurred or any action which has been taken to amend or
terminate a Plan as referred to in subsections (ii) and (vi) of Section 7.1(g)
hereof; (C) any event which has occurred or any action which has been taken
which could result in complete withdrawal, partial withdrawal, or secondary
liability for withdrawal liability payments with respect to a Multiemployer Plan
as referred to in subsection (vii) of Section 7.1(g) hereof; or (D) any action
which has been taken in furtherance of, any agreement which has been entered
into for, or any petition which has been filed with a United States district
court for, the appointment of a trustee for a Plan as referred to in subsection
(iii) of Section 7.1(g) hereof, or
(iii) files a notice of intent to terminate a Plan
with the PBGC; or files with the Internal Revenue Service a request pursuant to
Section 412(d) of the Code for a variance from the minimum funding standard for
a Plan; or files a return with the Internal Revenue Service with respect to the
tax imposed under Section 4971(a) of the Code for failure to meet the minimum
funding standards established under Section 412 of the Code for a Plan,
such party shall furnish to the Administrative Agent a copy of any such notice
received, request or petition filed, or agreement entered into; the most recent
Annual Report (Form 5500 Series) and attachments thereto for the Plan; the most
recent actuarial report for the Plan; any notice, return, or materials required
to be filed with the Internal Revenue Service in connection with the event,
action, or filing; and a written statement of an Authorized Financial Officer of
the Borrower describing the event or the action taken and the reasons therefor.
(k) Information Regarding Environmental Matters. Provide or
cause to be provided to the Lenders, the Administrative Agent and the Collateral
Agent the following:
(i) Immediately upon receipt, with complete copies of
all notices from any Governmental Authority notifying or alleging, that there
exists or may exist a material violation or potential violation, with respect to
any Vessel, of any Law regulating the handling labeling, custody, storing,
transportation, discharge, disposal, release, treatment, processing or other
disposition of Oil, petroleum byproducts, Hazardous Waste or other Hazardous
Substances, chemicals, or similar substances now or hereafter subject to
environmental or occupational safety regulation; and
-58-
(ii) Upon the Administrative Agent's request from
time to time, with complete copies of (A) any or all documents required to be
filed or in fact filed, by a Borrower with any Governmental Authority under
applicable Law, including but not limited to a vessel response plan and a spill
prevention and contingency plan (B) any or all material safety data sheets or
other documents or data which applicable Law or any Governmental Authority now
or hereafter requires a Borrower to prepare, compile or maintain, and (C) any
and all documents and other information which applicable Law or any Governmental
Authority require to be made available to employees, contractors, transferees,
the local community, local government agencies or the public; (D) any
non-privileged reports of a Borrower's employees, consultants, advisors,
engineers or others relating to such Borrower's compliance with applicable
environmental or occupational safety Laws, or to the status or manner of
disposal, discharge or release of any petroleum product or Hazardous Substance.
(l) Compliance with Laws. Comply in all material respects with
all Laws (including but not limited to ERISA, the Code, and any applicable Tax
Law, product safety Law, right-to-know, occupational safety or health Law,
environmental protection or pollution control Law, hazardous waste or toxic
substance management, handling or disposal Law, and the Xxxxx Act (46 U.S.C.
App. 861 et seq.)) applicable to it, except to the extent that the failure to so
comply would not have a Material Adverse Effect on its business, operations or
financial condition.
(m) Government Authorizations, etc. Obtain and maintain in
force any and all authorizations, consents, approvals, licenses, exemptions and
other actions by, and all registrations, qualifications, designations,
declarations and other filings with, any Governmental Authority necessary or
required in connection with execution and delivery of this Agreement and each of
the other Loan Documents, and the consummation of the transactions herein or
therein contemplated.
(n) Regulation U. Not use the proceeds of a Loan directly or
indirectly to purchase or carry any "margin stock" (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying, directly or
indirectly, any such margin stock.
(o) New Vessels. If a Borrower purchases or acquires a Vessel
utilizing, in whole or in part, an Advance under the Revolving Credit Facility,
execute and deliver to the Collateral Agent any and all agreements, forms,
instruments, mortgages and other documents necessary to create, attach and
perfect Transaction Liens upon such Vessel to secure payment of the Obligations.
(p) General Electric and Coastal Debt. Pay in full all of the
General Electric Debt and the Coastal Debt prior to the end of the Standby
Period.
Section 6.2 Negative Covenants. The Borrowers, jointly and severally
covenant that during the term of this Agreement, and so long as any Obligations
are owed to the Lenders or an Agent, none of them shall:
-59-
(a) No Sales or Mergers. Merge or consolidate with any Person,
or sell substantially all of its assets to, or purchase substantially all of the
assets of, any other Person without the prior written consent of a Lender
Majority; provided, however, that the foregoing prohibition shall not preclude
acquisitions by any Borrower of entities or assets in the same line of business
as any Borrower, respectively, up to a maximum aggregate acquisition price of
$5,000,000.00 in any fiscal year. Furthermore, there shall be no change in the
voting control of any of the Borrowers. Maritrans shall not sell, transfer,
pledge, hypothecate or otherwise dispose of, whether by operation of Law or
otherwise, any of the capital stock in any Borrower.
(b) Contingent Liabilities Benefiting Third Parties. Neither
Maritrans nor any other Borrower shall, nor shall any of them permit their
respective Subsidiaries to, guarantee or otherwise, in any way, become liable
with respect to the Debt of any other Person except (i) its Affiliates'
obligations to the Lenders and the Agents or any other lender to the extent
otherwise permitted under this Agreement, (ii) by endorsement in the ordinary
course of business of instruments or items of payment for deposit to the general
account of any Borrower or for delivery to the Administrative Agent or the
Lenders on account of the Obligations, and (iii) obligations to refund deposits
held for third parties in the ordinary course of business, (iv) guarantees
required by the Maritime Administration to be issued by Maritrans to support
Title XI Financing for a Company, and (v) guarantees required to obtain COFR.
The Administrative Agent shall be entitled to review, but shall not unreasonably
withhold its consent to, the terms of any proposed guaranty, but in no event
shall the Administrative Agent be obligated to consent to, and no Borrower shall
enter into, any guaranty which adversely affects any Collateral or the
Administrative Agent's interest therein.
(c) Prohibited Liens. Except for Permitted Liens, (i) cause or
permit or (ii) agree or consent to cause or permit in the future (upon the
happening of a contingency or otherwise), Collateral or any Trading Assets to be
subject to a third party interest or Lien.
(d) Location of Books and Records. Remove a Borrower's books
and records from the Locations set forth on Schedule 5.22 hereto, unless (i) the
Person intending to do so gives the Administrative Agent written notice thereof
and of the new location of said books and records and/or the Collateral at least
thirty (30) calendar days prior thereto and (ii) the other office or location is
within the continental United States of America.
(e) Sale of Collateral. Except with the prior written consent
of the Collateral Agent in connection with any Title XI Financing involving a
Vessel, sell, assign, transfer or permit the sale, assignment or transfer of any
Collateral or other Trading Assets whether by operation of any Law or otherwise;
provided, however, that the Companies may sell or dispose of non-Collateral
assets (calculated on a book-value basis) in an aggregate amount not to exceed
(i) $4,000,000 in any twelve-month period during the term of this Agreement, and
(ii) $15,000,000.
(f) Change of Address. Relocate any Borrower's chief executive
office from its respective Location, unless (i) such Borrower intending to do so
gives the Administrative Agent at least 30 days written notice prior thereto and
(ii) the other office is located within the continental United States of
America.
-60-
(g) Interstate Commerce Act. Carry or permit to be carried on
any Vessel any cargo or take or omit to take, or permit to be taken or omitted,
any action if the carrying of such cargo or other commission or omission would
cause a Borrower, the Vessel, the charterer of the Vessel or the operation of
the Vessel pursuant to the Charters and Contracts to be subject to regulation
under the federal Interstate Commerce Act or the rules and regulations
promulgated thereunder.
(h) Intentionally Left Blank.
(i) No Other Activities. Without the prior written consent of
a Lender Supermajority, no Borrower shall engage, directly or indirectly, in any
activities other than activities relating to or in support of ownership,
operation, construction or maintenance of vessels engaged in marine
transportation.
(j) Financial Maintenance Covenants.
(i) Interest Coverage Ratio. The Company's Interest
Coverage Ratio, measured on a Consolidated basis at each Measuring Date, shall
never be less than 3.25:1 for each Measuring Date through and including
September 30, 2002, and 4.50:1 for each Measuring Date thereafter.
(ii) Fixed Charge Coverage Ratio. The Company's Fixed
Charge Coverage Ratio, measured on a Consolidated basis at each Measuring Date,
shall not be less than 1.50:1 for each Measuring Date through and including
December 31, 2002, and 1.75:1 for each Measuring Date thereafter.
(iii) Total Liabilities to Tangible Net Worth Ratio.
The Company's Total Liabilities to Tangible Net Worth Ratio, measured on a
Consolidated basis at each Measuring Date, shall not be more than 2.75:1 for
each Measuring Date through and including June 30, 2002, 2.50:1 for each
Measuring Date from September 30, 2002 through and including June 30, 2003, and
2.00:1 for each Measuring Date thereafter.
(iv) Funded Debt to EBITDA Ratio. The Company's
Funded Debt to EBITDA Ratio, measured on a Consolidated basis, shall not be
greater than 2.50:1 for each Measuring Date through and including June 30, 2002,
and 2.25:1 for each Measuring Date thereafter.
(v) Additional Debt. No Company shall incur, assume
or permit to exist any Debt without the prior written consent of a Lender
Majority, except for (A) the Obligations, (B) Debt existing as of the Closing
Date set forth in Schedule 5.8, (C) Debt incurred in connection with any Title
XI Financing, (D) the Affiliate Obligations, and (E) Debt incurred in connection
with Capital Leases as permitted under Section 6.2(o).
(k) Incorporation, Formation or Organization. Without the
prior written consent of the Administrative Agent, change any Borrower's State
of incorporation, formation or organization from that set forth in Schedule 5.1,
unless such Borrower intending to do so gives the Administrative Agent at least
thirty (30) days' written notice prior thereto and all information relating to
such change requested by the Administrative Agent.
-61-
(l) Capital Expenditures. Contract for, purchase, make
expenditures for, lease pursuant to a Capital Lease or otherwise incur
obligations with respect to Capital Expenditures (whether subject to a Lien or
otherwise) during any period below in the aggregate amount in excess of the
amount set forth for such period:
Fiscal Year Ending December 2001 $27,500,000
Fiscal Year Ending December 2002 $30,000,000
Fiscal Year Ending December 2003 $30,000,000
Fiscal Year Ending December 2004 $30,000,000
Fiscal Year Ending December 2005 $50,000,000
Fiscal Year Ending December 2006 $50,000,000
; provided however, that the above limitations for Capital Expenditures shall be
cumulative from Fiscal Year to Fiscal Year, such that any unused amount will be
carried forward to the next Fiscal Year. By way of example and not by way of
limitation, if the actual amount of Capital Expenditures for the Company in
Fiscal Year ending December 31, 2001 is $22,500,000, the Capital Expenditure
limitations for the Company in the Fiscal Year ending December 31, 2002 would be
increased by $5,000,000 to $35,000,000, and if thereafter the actual amount of
Capital Expenditures for the Company in Fiscal Year ending December 31, 2002 is
$25,000,000, the Capital Expenditure limitation for the Company in the Fiscal
Year ending December 31, 2003 would be increased by $10,000,000 to $40,000,000.
(m) Change of Control. Permit to occur any change in the
controlling ownership or, without the prior written consent of the
Administrative Agent, the executive management of Maritrans.
(n) Share Repurchases. Redeem, retire or otherwise repurchase
(each a "Repurchase") any capital stock of a Borrower now or hereafter
outstanding, unless at the time of and after giving effect to each such
Repurchase (i) no Potential Default or Event of Default has occurred and is
continuing, and (ii) the Borrower making such Repurchase is Solvent.
(o) Capital Leases. Have outstanding at any one time Capital
Leases in an aggregate amount in excess of $500,000.
(p) Aggregate Appraised Value. Permit 60% of the aggregate
appraised value of all Vessels subject to Vessel Mortgages to be less than the
then amount of the Aggregate Commitment.
(q) Fiscal Year. Permit the fiscal year of Maritrans and its
Consolidated Subsidiaries to end on a day other than December 31.
Section 6.3 Payment of Liens. Except for Permitted Liens and Liens (a)
being contested in good faith and (b) for which, if Administrative Agent has so
requested, a Borrower has established and is maintaining reserves satisfactory
to the Administrative Agent, if a Borrower, at any time or times hereafter,
shall fail (i) to pay and satisfy obligations payment of which is secured by
Liens when such payments are due or (ii) obtain the release or discharge of any
-62-
Lien asserted against the Collateral within 30 calendar days of the recording or
entry thereof, then the Lenders, through the Administrative Agent, without
waiving or releasing any obligation or liability of the Borrowers or any Event
of Default may (but need not), in their sole discretion, at any time or times
thereafter, make such payment, or any part thereof, or obtain such release or
discharge and take any other action with respect thereto which the Lenders deem
advisable. All sums so paid by the Lenders and any expenses related thereto
shall be payable to the Lenders upon demand by the Administrative Agent and
shall be additional Obligations hereunder secured by the Transaction Liens.
Section 6.4 Insurance.
(a) The Borrowers shall provide and maintain the following
insurance on or with respect to each Vessel and the operation thereof:
(i) Subject to the provisions of the following
sentence, marine navigating risk hull and machinery insurance and marine war
navigating risk hull and machinery insurance (collectively, "Hull Insurance"),
together with, at Borrowers' option, such amounts of increased value and total
loss only insurance as are permitted by such Hull Insurance policies. While any
Vessel is idle or laid up, at the option of a Borrower and in lieu of any of the
insurance referred to in the preceding sentence, port risk hull and machinery
insurance may be taken out on the Vessel by a Borrower. Until the Obligations
are fully-paid and performed, the foregoing insurance (including such increased
value and total loss only insurance) shall be in amounts aggregating at all
times not less than the greater of the amount set forth on Schedule 6.4(a)(i)
for each Vessel, or the Vessels' full market value; provided, however, that, the
amount of Hull Insurance need not be greater than the amount of coverage
underwriters will write.
(ii) Marine protection and indemnity insurance and,
at Borrowers' option, excess protection and indemnity insurance and, where
appropriate or necessary, war risk insurance; provided, however, that the amount
of protection and indemnity coverage will not be less than coverage customarily
provided to members of Borrowers' P&I club.
(iii) Insurance against liability under law or
international convention arising out of pollution, spillage or leakage. Until
the Obligations are fully paid and performed, the foregoing insurance shall be
against such risks and in such form as are, and the amount of such insurance
shall be not less than such amounts as are, in the opinion of the insurance
broker expressed in its most recent Insurance Report, necessary or advisable for
the protection of the interests of the Borrowers, the Agents and the Lenders.
(b) Additional Insurance. Borrowers shall provide and maintain
insurance to the extent obtainable on or with respect to the Vessels and the
operation thereof, in addition to the insurance as set forth in Section 6.4(a),
as follows:
(i) Mortgagee single interest insurance on each
Vessel and the other Collateral, if and to the extent required by the Collateral
Agent.
(ii) Insurance covering such other risks as the
Collateral Agent may from time to time request or consent to or Borrowers may
from time to time propose and which would be covered by prudent shipowners and
managing agents, generally recognized as being among the best, in operating and
maintaining similar United States flag vessels engaged in similar trades.
-63-
All insurance carried pursuant to this Section 6.4(b) shall, to the extent
obtainable, be taken out in the names of the Vessel owner, operator (if any),
demise charterer (if any), and the Collateral Agent, as named insureds as their
interests may appear. Each policy in respect of such insurance shall contain
provisions or endorsements waiving the insurer's right of subrogation against
the insured parties, to the extent reasonably obtainable from the underwriter of
such Policy, unless any such Person shall request that a waiver of subrogation
in favor of it not be obtained, in which event it need not be.
(c) Obtaining Mandatory and Additional Insurance.
(i) Subject to Section 6.4(c)(ii), charterers or
operators shall be entitled to direct and assist Borrowers in placing all
insurance carried pursuant to Section 6.4(a) and (b), all such insurance shall
be obtained by Borrowers from such insurance underwriters, including protection
and indemnity clubs, through such insurance brokers, in such maximum amounts,
with such types and forms of coverage and subject to such deductibles as the
Borrowers shall from time to time request and which are reasonably acceptable to
the Collateral Agent; provided, however, that the Borrowers shall not cancel any
such existing insurance or place the same with different insurance underwriters
or through different insurance brokers except (A) in connection with the
expiration of such insurance or (B) after the first anniversary of the placement
or last renewal or extension of such insurance.
(ii) The respective amounts of the liability
insurance referred to in Section 6.4(a), carried on each Vessel shall not be
limited to the respective minimum amounts thereof specified in such section, and
Borrowers will consult with the Collateral Agent from time to time regarding the
maximum amount thereof which will be carried on each Vessel and the respective
maximum amounts in which the insurance carried pursuant to Section 6.4(a) will
be obtained.
(d) Named Insureds.
(i) All insurance carried pursuant to Section 6.4(a)
(and if applicable 6.4(b)) shall be taken out in the names of the Vessel owner,
operator (if any), demise charterer (if any), and the Collateral Agent as their
interests may appear. The Collateral Agent shall be named as an additional
insured on all protection and indemnity and pollution coverage and as loss payee
on all hull and other property casualty insurance.
(ii) All insurance carried pursuant to Section 6.4(a)
(and if applicable 6.4(b)) shall contain provisions or endorsements waiving the
insured's right of subrogation against the Vessel owner, operator (if any),
demise charterer (if any), and the Lenders, the Administrative Agent and the
Collateral Agent, unless any such Person shall request that a waiver of
subrogation in favor of it not be obtained, in which event it need not be. Any
such waiver of subrogation shall not extend to any Borrower, the operator, or
any such corporate Affiliate of a Borrower. The policies in respect of all such
insurance shall provide that there shall be no recourse against the Lenders, the
Administrative Agent and the Collateral Agent for the payment of premiums,
commissions, club calls, assessments or advances.
-64-
(iii) The policies in respect of all insurance
carried pursuant to Section 6.4(a) and (b) shall provide that at least ten days
prior notice shall be given to the Vessel owner, operator (if any), demise
charterer (if any), and the Collateral Agent by the underwriters of any
cancellation for the non-payment of premiums, commissions, club calls,
assessments or advances and, to the extent reasonably available from the
underwriter of any such policy, such policy shall provide for at least 30 days'
prior notice thereof. Hull Insurance shall include an endorsement which shall
provide that the insurance cannot be canceled or materially changed without
thirty (30) days prior written notice to the Collateral Agent. Each Borrower
shall request that its P&I Club shall give the Collateral Agent as much notice
as possible of Borrowers' failure to renew its entry in such P&I Club, and in
any event Borrowers shall so notify the Collateral Agent immediately if its
entry in such P&I Club is not renewed. If any Borrower receives any notice
referred to in the preceding sentences of this paragraph (iii), such Borrower
shall promptly deliver a copy of such notice to the Collateral Agent.
(iv) In the event that the Collateral Agent shall be
subject to a third-party claim arising out of risks covered by any insurance
carried pursuant to Sections 6.4(a) or (b), Borrowers shall give the Collateral
Agent or a Lender the benefit of such insurance, so far as the policies allow;
provided, however, that, in the event the Collateral Agent or a Lender should
have a claim against any Borrower arising out of any such risk, Borrowers shall
reimburse the Collateral Agent or the Lender, as appropriate for such claim to
the extent recovered from the underwriters concerned.
(e) Proofs of Loss. Borrowers shall have the duty and
responsibility to make proofs of loss and take any and all other steps necessary
to effect collections from underwriters for any loss under any insurance carried
pursuant to this Section 6.4 or otherwise carried by any Person with respect to
any Vessel.
(f) Insurance Reports.
(i) Borrowers shall furnish, or cause to be
furnished, to the Collateral Agent, prior to the Closing Date and not later than
April 1 of each year thereafter a detailed report, signed by Xxxxxx of New York,
Inc. or another insurance broker satisfactory to the Collateral Agent,
describing the insurance carried on or with respect to each Vessel and the
operation thereof (an "Insurance Report").
(ii) The Insurance Report shall state that, subject
to Section 6.4(f)(iii), in the opinion of such insurance broker, the insurance
referred to in Section 6.4(a) carried on or with respect to the Vessel or
Vessels in question or its or their operation is against such respective risks
and in such respective forms as are, and the respective amounts of such
insurance are not less than such amounts as are, necessary or advisable for the
protection of the interests of the owner of each Vessel, any demise charterers
or operators and the Collateral Agent. Such report shall further state that,
subject to Section 6.4(f)(iii), in the opinion of such insurance broker, all
insurance carried pursuant to Section 6.4(a) is underwritten by satisfactory
insurance companies, underwriters, associations or underwriting funds.
-65-
(iii) In connection with the opinions expressed
pursuant to Section 6.4(f)(ii), the Insurance Report shall state that such
opinions are based upon such insurance broker's experience as an insurance
broker and its examination of information available to it concerning insurance
carried by shipowners and managing agents which it considers to be prudent and
generally recognized as being among the best in operating and maintaining
similar vessels engaged in similar trades, and such Insurance Report may state
one or more of the following matters:
(A) such opinions are not intended as a
guarantee that the insurance referred to therein is necessarily in such amounts
as may be adequate to protect the interests of the owner of any Vessel, any
demise charterers or operators or the Collateral Agent in all circumstances.
(B) such opinions should be relied on only
as guides to owner of any Vessel, any demise charterers or operators and the
Collateral Agent in making their respective business judgments as to the amounts
of such insurance as would be prudent to be carried on each Vessel; and
(C) that by its acceptance of the Insurance
Report and except for the gross negligence or willful misconduct of such
insurance broker each recipient thereof (I) waives any and all rights it may
have against such insurance broker with respect to the opinion as to the amounts
of the insurance referred to therein and (II) thereby agrees that such insurance
broker shall have no liability in connection with such opinion as to the amounts
of such insurance.
(iv) Borrowers will cause such insurance broker to
agree (A) to advise owner of any Vessel, any demise charterers or operators, and
the Collateral Agent promptly of any default known to them in the payment of any
premium, commission, club call, assessment or advance required (whether for new
insurance or for insurance replacing, renewing or extending existing insurance)
and of any other act, omission or event of which such insurance broker has
knowledge and which in its sole judgment (I) might invalidate or render
unenforceable, or cause the cancellation or lapse or prevent the renewal or
extension of, in whole or in part, any insurance carried pursuant to Section
6.4(a), (II) has or might result in any material modification of the terms of
any such insurance or (III) has or might result in any such insurance not being
in compliance with the applicable requirements of this Agreement and (B) to
furnish owner of any Vessel, any demise charterers or operators and the
Collateral Agent from time to time, upon request, detailed information with
respect to any of the insurance carried on or with respect to the vessel or the
operation thereof.
(v) During any year Xxxxxx of New York, Inc. or such
other insurance broker which is then acting pursuant to Section 6.4(f)(i) may
(but shall not be obligated hereby to do so) furnish to the Borrowers and the
Collateral Agent a report, in addition to the report required pursuant to
Section 6.4(f)(i), to the effect that, in the opinion of such insurance broker,
the amount of any liability insurance referred to in Section 6.4(a) hereof then
-66-
carried on any Vessel is either higher or lower than an amount (the "New
Amount"), specified in such additional report, which is necessary or advisable
for the protection of the interests of the owner of any Vessel, any demise
charterers or operators and the Collateral Agent. Any such additional report
shall be subject to all the provisions of Section 6.4(f)(ii). If any such
additional report is received and the New Amount specified therein for any such
insurance is higher than that then carried, Borrowers shall obtain, as promptly
as practicable, an additional amount of such insurance so that the amount
thereof is at least equal to such New Amount. If any such additional report is
received and the New Amount specified therein for any such insurance is lower
than that then carried, Borrowers may reduce the amount of such insurance, so
long as the reduced amount thereof is at least equal to such New Amount and, is
not less than the minimum amount of such insurance required to be carried by
such Section 6.4(a).
(g) Optional Insurance.
(i) Each Borrower shall ensure that any insurance
obtained by any demise charterer or operator on or with respect to each Vessel
or the operation thereof does not conflict with or otherwise limit the insurance
carried pursuant to Section 6.4(a) or (b) and contains provisions or
endorsements waiving the insurer's right of subrogation against the owner of any
Vessel, any demise charterers or operators and the Lenders, the Administrative
Agent and the Collateral Agent. The Borrowers shall cause each demise charterer
and operator to furnish Borrowers and the Collateral Agent with copies of all
policies relating to insurance carried by the demise charterer or operator on
any Vessel.
(ii) Borrowers may place, at Borrowers' expense, any
insurance on or with respect to any Vessels or the operation thereof as
Borrowers desire unless such insurance would conflict with or otherwise limit
the insurance carried pursuant to Section 6.4(a) or (b). The loss payee or
payees under such insurance shall be designated by the Borrowers. Any such
insurance so obtained by the Borrowers shall contain provisions or endorsements
waiving the insurer's right of subrogation against the owner of any Vessel, any
demise charterers or operators and the Lenders, the Administrative Agent and the
Collateral Agent. The Borrowers shall furnish the Collateral Agent with copies
of all policies relating to insurance carried by the Borrowers pursuant to this
Section 6.4(g)(ii).
(h) Copies of Policies. Borrowers shall furnish the Collateral
Agent with certified copies of all policies required to be carried under this
Agreement.
(i) Failure to Maintain. In the event the Borrowers at any
time hereafter shall fail to obtain or maintain, or cause to be obtained or
maintained, any of the policies of insurance required above or to pay any
premium in whole or in part relating thereto, then any Agent or the Lenders,
without waiving or releasing any obligations or Event of Default hereunder, may
(but need not) at any time thereafter obtain and maintain such policies of
insurance and pay such premium and take any other action with respect thereto
which the Administrative Agent deems advisable. All sums so disbursed by the
Collateral Agent, including any related expenses and other charges relating
thereto, shall be payable on demand to the Collateral Agent and shall be
additional Obligations hereunder secured by the Collateral.
-67-
Section 6.5 Casualty or Damage to Insured Property. Proceeds of
insurance for casualty or damage to the Vessel shall be applied as provided in
the Vessel Mortgage. Proceeds of insurance for casualty or damage to any other
Collateral shall be applied as provided in the Vessel Mortgage to the extent
applicable, and otherwise as the parties may agree in writing.
ARTICLE VII
Events of Default
Section 7.1 Events of Default. An "Event of Default" shall mean the
occurrence or existence of one or more of the following events or conditions
(whatever the reason for such Event of Default and whether voluntary,
involuntary or effected by operation of Law):
(a) A Borrower shall fail to pay when due any principal in
respect of any Obligations, including without limitation, under this Agreement,
any Note or any other Loan Document; or
(b) A Borrower shall fail to pay when due any interest in
respect of any Obligations, including without limitation, under this Agreement,
any Note or any other Loan Document, and such failure shall have continued for a
period of five (5) Business Days; or
(c) Any representation or warranty made by a Borrower in this
Agreement, any financial statement provided at any time by a Borrower to a
Lender or an Agent pursuant to this Agreement, or any exhibit or schedule
attached hereto, shall prove to have been false or misleading in any material
respect as of the time when made (including by omission of material information
necessary to make such representation, warranty or statement not misleading); or
(d) Any Borrower shall default in the performance or
observance of any covenant contained in Section 6.2(j), (p) or (m) hereof; or
(e) Any Borrower shall default in the performance or
observance of any other covenant, agreement or duty under this Agreement and
such default shall continue for a period of fifteen (15) days after notice of
such default from the Administrative Agent (provided that if the default cannot
be cured within 15 days and the Borrower has commenced cure within said 15 day
period, and so long as the Borrower continuously and diligently pursues
completion of said cure and in any event completes said cure within 60 days from
said notice, an Event of Default shall not be deemed to exist; or
(f) Any Borrower (i) shall default in any payment of principal
of or interest on any obligation (or set of related obligations) for borrowed
money of $250,000 or more beyond any period of grace with respect thereto or, if
such obligation or obligations is or are payable or repayable on demand, shall
fail to pay or repay such obligation or obligations when demanded, or (ii) shall
default (beyond any grace period with respect thereto) in the payment of any
guaranty, surety or indemnity obligation exceeding $250,000, or (iii) shall
default in the observance of any covenant, term or condition contained in any
agreement or instrument by which such obligation or obligations is or are
created, secured or evidenced if the effect of such default is to cause, or to
permit the holder or holders of such obligation or obligations (or a trustee or
agent on behalf of such holder or holders) to cause, all or part of such
obligation or obligations to become due before its or their otherwise stated
maturity; or
-68-
(g) The Administrative Agent shall determine in good faith
(which determination shall be conclusive) that the potential liabilities
associated with the events set forth in subsections (i) through (vii) below,
individually or in the aggregate, could cause a material decline in the business
operations or financial condition of a Borrower or the enterprise comprised of
Maritrans and its Subsidiaries taken as a whole:
(i) The PBGC notifies a Plan pursuant to Section 4042
of ERISA by service of a complaint, filing of a law suit, or otherwise of its
determination that an event described in Section 4042(a) of ERISA has occurred,
a Plan should be terminated, or a trustee should be appointed for a Plan and, as
to such Plan, the representation contained in Section 5.12(a) hereof is not then
correct; or
(ii) Any action is taken to terminate a Plan subject
to title IV of ERISA pursuant to its provisions or the plan administrator files
with the PBGC a notice of intent to terminate a Plan in accordance with Section
4041 of ERISA and, as to such Plan, the representation contained in Section
5.12(a) hereof is not then correct; or
(iii) Any action is taken by a Plan administrator to
have a trustee appointed for a Plan pursuant to Section 4042 of ERISA and, as to
such Plan, the representation contained in Section 5.12(a) hereof is not then
correct; or
(iv) A return is filed with the Internal Revenue
Service, or a Plan is notified by the Secretary of the Treasury that a notice of
deficiency under Section 6212 of the Code has been mailed, with respect to the
tax imposed under Section 4971(a) of the Code for failure to meet the minimum
funding standards established under Section 412 of the Code; or
(v) A Reportable Event that is required to be
reported occurs with respect to a Plan; or
(vi) Any action is taken to amend a Plan to become an
employee benefit plan described in Section 4021(b)(1) of ERISA, causing a Plan
termination under Section 4041(e) of ERISA and, as to such Plan, the
representation contained in Section 5.12(a) hereof is not then correct; or
(vii) Any of the Borrowers or any Controlled Group
Member receives a notice of liability or demand for payment on account of
complete withdrawal under Section 4203 of ERISA, partial withdrawal under
Section 4205 of ERISA or on account of becoming secondarily liable for
withdrawal liability payments under Section 4204 of ERISA (sale of assets); or
(h) One or more judgments for the payment of money shall have
been entered against any Borrower which judgment or judgments (singularly or in
the aggregate) exceed, in any instance, $500,000 beyond the amount of any
insurance proceeds available to pay the same, and such judgment or judgments
shall have remained undischarged, unstayed and not fully bonded for a period of
sixty (60) consecutive days; or
-69-
(i) A writ or warrant of attachment, garnishment, execution,
distraint or similar process shall have been issued against any Borrower or any
of their respective properties which shall have remained undischarged, unstayed
and not fully bonded for a period of sixty (60) consecutive days; or
(j) A proceeding shall have been instituted in respect of any
Borrower or Guarantor:
(i) seeking to have an order for relief entered or
seeking a declaration or entailing a finding that such Borrower is insolvent or
a similar declaration or finding, or seeking dissolution, winding-up, charter
revocation or forfeiture, liquidation, reorganization, arrangement, adjustment,
composition or other similar relief with respect to any of them, its assets or
its debts under any Law relating to bankruptcy, insolvency, relief of debtors or
protection of creditors, termination of legal entities or any other similar law
now or hereafter in effect, or
(ii) seeking appointment of a receiver, trustee,
custodian, liquidator, assignee, sequestrator or other similar official for any
of them or of any substantial part of its or their property and such proceeding
shall result in the entry, making or grant of any such order for relief,
declaration, finding, relief or appointment, or such proceeding shall remain
undismissed and unstayed for a period of thirty consecutive days; or
(k) Any of the Borrowers or the Guarantors shall become
insolvent, shall become generally unable to pay its debts as they become due,
shall voluntarily suspend transaction of its business, shall make a general
assignment for the benefit of creditors, shall institute a proceeding described
in Section 7.1(j)(i) or shall consent to any such order for relief, declaration,
finding or relief described therein, shall institute a proceeding described in
Section 7.1(j)(ii) or shall consent to any such appointment or to the taking of
possession by any such official of all or any substantial part of its property
whether or not any such proceeding is instituted, shall dissolve, wind-up or
liquidate itself or any substantial part of its property, or shall take any
action in furtherance of any of the foregoing; or
(l) An event of default shall occur with respect to any Note,
any Vessel Mortgage or any other Loan Document; or
(m) An event of default occurs with respect to any other
present or future obligations owed by any one or more Borrowers to any of the
Lenders or any Agent; or
(n) Any of the Loan proceeds is used other than for the
purposes described in Section 2.1 hereof; or
(o) Any Guarantor revokes, terminates or fails to perform any
of the terms of its Guaranty.
-70-
ARTICLE VIII
Remedies
Section 8.1 Occurrence of Event of Default. If an Event of Default
shall occur and be continuing with respect to a Borrower or any Borrowers,
(provided, however, that there shall be no right of cure after acceleration of
the Obligations), the Administrative Agent and/or the Collateral Agent may, or
upon the written request of a Lender Majority shall, do any one or more of the
following with respect to any one or more (including all) of the Borrowers:
(a) Acceleration. Declare the entire unpaid balance of the
Obligations, or any part thereof, immediately due and payable, whereupon it
shall be due and payable.
(b) Judgment. Reduce any claim to judgment.
(c) Foreclosure. Take such steps as the Administrative Agent
and/or the Collateral Agent may deem appropriate to foreclose or otherwise
enforce any Transaction Liens, or to exercise such other judicial, self-help or
other remedies as may be available under applicable Law.
(d) Rights. Exercise any and all rights afforded by the Laws
or the United States of America, any State or any other jurisdiction, as the
Administrative Agent and/or the Collateral Agent shall deem appropriate.
(e) Vessel Mortgages/Guaranties . Exercise any and all of its
rights under the Vessel Mortgages, the Guaranties or any other agreement or
agreements, without being deemed to have elected any remedy over another.
Section 8.2 WARRANT OF ATTORNEY TO CONFESS JUDGMENT. IF AN EVENT OF
DEFAULT SHALL OCCUR AND BE CONTINUING, EACH BORROWER HEREBY IRREVOCABLY
AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ATTORNEYS OR THE PROTHONOTARY OR CLERK
OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO
APPEAR FOR ANY ONE OR MORE OR ALL OF THE BORROWERS IN ANY COURT OR COURTS IN AN
APPROPRIATE ACTION THERE BROUGHT OR TO BE BROUGHT AGAINST ANY ONE OR MORE OR ALL
OF THE BORROWERS AT THE SUIT OF THE ADMINISTRATIVE AGENT AND/OR THE COLLATERAL
AGENT OR ANY SUCCESSOR TO ITS OR THEIR INTEREST UNDER THIS AGREEMENT, AND
THEREIN TO CONFESS JUDGMENT AGAINST ONE OR MORE OR ALL OF THE BORROWERS FOR ALL
SUMS OWING HEREUNDER OR UNDER ANY OR ALL NOTES OR OTHERWISE IN CONNECTION WITH
EITHER OF THE LOANS, ANY ONE OR MORE ADVANCES, OR ANY ONE OR MORE LETTERS OF
CREDIT, OR ANY OF THE VESSELS OR OTHER COLLATERAL, TOGETHER WITH COSTS OF SUIT
AND AN ATTORNEY'S FEE FOR COLLECTION AS AFORESAID; AND FOR SO DOING THIS
AGREEMENT OR A VERIFIED COPY HEREOF SHALL BE A SUFFICIENT WARRANT. THIS WARRANT
OF ATTORNEY SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, BUT JUDGMENT MAY BE
CONFESSED REPEATEDLY SO LONG AS ANY SUCH OBLIGATIONS REMAIN OWING. THIS WARRANT
OF ATTORNEY TO CONFESS JUDGMENT IS NOT INTENDED TO BE A POWER OF ATTORNEY WITHIN
THE MEANING OF 20 PA.C.S. SECTION 5901 ET SEQ.
-71-
Section 8.3 Waivers. The acceptance by the Administrative Agent at any
time and from time to time of part payment on the Obligations shall not be
deemed to be a waiver of any Default or Event of Default then existing. No
waiver by the Administrative Agent of any Default or Event of Default shall be
deemed to be a waiver of any other then existing or subsequent Default or Event
of Default. No delay or omission by the Administrative Agent? in exercising any
Rights under the Loan Documents shall impair such Rights or be construed a
waiver thereof or any acquiescence therein, nor shall any single or partial
exercise of any such Rights preclude other or further exercise thereof, or the
exercise of any other Rights under the Loan Documents or otherwise.
Section 8.4 Application of Proceeds. Any and all proceeds ever received
by either Agent or any Lender from the exercise of any rights or remedies shall
be applied by them to the Obligations in such order and manner as the
Administrative Agent, in its sole discretion, may deem appropriate consistent
with the terms of this Agreement and applicable Law, notwithstanding any
instructions to the contrary by any Borrowers or Lender, and the Borrowers shall
remain liable to the Lenders and the Agents for any deficiency.
Section 8.5 Cumulative Rights. All rights and remedies available to the
Lenders and the Agents under the Loan Documents shall be cumulative of, and in
addition to, all other rights granted to the Lenders and the Agents at Law or in
equity, whether or not the Obligations be due and payable and whether or not the
Lenders or Agents shall have instituted any suit for collection or other action
in connection with the Loan Documents.
Section 8.6 Expenditures by Lenders and Agents. Any reasonable sums
spent by the Agents and the Lenders pursuant to the exercise of any right or
remedy provided in this Agreement, any Note, any Vessel Document or any other
Loan Document shall become part of the Obligations, except as otherwise provided
by Law.
ARTICLE IX
AGENTS, RELATION OF LENDERS, ASSIGNMENTS AND PARTICIPATIONS
Section 9.1 Administrative Agent and Collateral Agent.
(a) Each Lender hereby irrevocably (subject to the provisions
of this Agreement regarding removal or resignation) appoints, designates and
authorizes the Administrative Agent and the Collateral Agent, as applicable, to
take such action on its behalf under the provisions of this Agreement, each
Note, each Vessel Mortgage, each other Loan Document and with respect to each
Transaction Lien and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement, any Vessel Mortgage or
any other Loan Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere
herein or in any other Loan Document, neither the Administrative Agent nor the
Collateral Agent shall have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent or the Collateral
Agent have or be deemed to have any fiduciary relationship with any Lender or
-72-
participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Administrative Agent or the Collateral
Agent. Without limiting the generality of the foregoing sentence, the use of the
terms "agent" or "administrative agent" or "collateral agent" or "Administrative
Agent" or "Collateral Agent" herein or in any Note, Vessel Mortgage or other
Loan Document with reference to the Administrative Agent or the Collateral Agent
is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law. Instead, such
term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
(b) The general administration of this Agreement and the Loan
Documents shall be by the Administrative Agent. The Administrative Agent shall
also act on behalf of the Lenders in issuing and administering any Letters of
Credit and preparing, reviewing and administering the documents associated
therewith. The Collateral Agent shall hold record title to the Vessel Mortgages
and other Transaction Liens, shall administer the Collateral and shall be named
as additional insured and loss payee, all in accordance with the terms of this
Agreement, each Vessel Mortgage and each of the other Loan Documents.
(c) The Administrative Agent and the Collateral Agent may each
execute any of its duties under this Agreement or any other Loan Document by or
through agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel and other consultants or experts concerning all matters pertaining to
such duties. Neither the Administrative Agent nor the Collateral Agent shall be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct.
(d) Each Lender hereby authorizes and directs the
Administrative Agent and the Collateral Agent, respectively, to take such action
(including without limitation retaining lawyers, accountants, surveyors or other
experts) or forbear from taking such action as in the Administrative Agent's or
the Collateral Agent's reasonable opinion, respectively, may be necessary or
desirable for the administration hereof (subject to any direction of the Lender
Majority and to the other requirements of this Agreement).
(e) The Administrative Agent and the Collateral Agent shall
each respectively inform the other and each Lender, and each Lender shall inform
the Administrative Agent and the Collateral Agent, of the occurrence of any
Event of Default promptly after obtaining knowledge thereof; however, unless it
has actual knowledge of an Event of Default, each of the Administrative Agent,
the Collateral Agent and the Lenders may assume that no Event of Default has
occurred.
Section 9.2 Pro Rata Sharing. All commissions, fees, interest and
payments received by the Administrative Agent, the Collateral Agent or any
Lender under the terms of this Agreement and the other Loan Documents and all
expenses arising from the administration hereof or the enforcement of any
security and any sum realized therefrom or from any setoff (other than sums
applied to the payment of expenses or for reimbursement of expenses paid) for
which provision for allocation and payment is not otherwise provided for herein
-73-
or therein shall be divided pro rata among the Lenders in accordance with their
Percentage Interests. Notwithstanding the foregoing, nothing herein shall be
construed to prevent Mellon from receiving solely for its own account, and as
neither Lender, Administrative Agent nor Collateral Agent hereunder, such other
fees and payments in respect to other matters as it may mutually agree with the
Borrowers. Each Lender shall pay to the Administrative Agent or the Collateral
Agent, as the case may be, promptly on demand any sums payable by such Lender
hereunder. Under no circumstances shall the Administrative Agent or the
Collateral Agent be obligated to expend its own funds for the protection of the
interests of the Lenders, but the Administrative Agent and Collateral Agent
shall each be entitled to be indemnified hereunder by the Lenders in accordance
with their Percentage Interests prior to taking any action or expending any
funds, so long as such action is permitted hereunder.
Section 9.3 Setoff. Any Lender which shall receive payment of or on
account of all or part of its claim against the Borrowers hereunder through the
exercise of any right of setoff, counterclaim, banker's lien, or secured claim
under any bankruptcy statute in a greater proportion than its Percentage
Interest shall promptly notify the Administrative Agent thereof and shall be
deemed to have purchased immediately prior to such payment a ratable proportion
of the claims of the other Lenders so that all recoveries of principal and
interest shall be shared by the Lenders in accordance with their respective
Percentage Interests. If all or any portion of such excess payment is thereafter
recovered from such Lender, such purchase shall be rescinded and the purchase
price restored of such recovery, but without interest.
Section 9.4 Approvals. Upon any occasion requiring or permitting an
approval of any amendment or modification or any consent, waiver, declaring an
Event of Default or taking any action thereafter, or any other action on the
part of the Administrative Agent, the Collateral Agent or the Lenders under any
of the Loan Documents, (a) action may (but shall not be required to) be taken by
the Administrative Agent or the Collateral Agent, as the case may be, for and on
the behalf or for the benefit of all Lenders, provided (i) that no contrary
direction of the Lender Majority (or, if applicable, Lender Supermajority) shall
have been previously received by the Administrative Agent or the Collateral
Agent, as applicable, and (ii) that the Administrative Agent or the Collateral
Agent, as the case may be, shall have received consent of the Lender Majority
(or, if applicable, Lender Supermajority) to enter into any written amendment,
waiver or modification of the provisions of any of the Loan Documents, or to
consent in writing to any material departure from the terms of any Loan
Documents by the Borrowers or any other party thereto and (b) action shall be
taken by the Administrative Agent upon the direction of the Lender Majority (or,
if applicable, Lender Supermajority), and any such action shall be binding on
all Lenders, provided further, however, that unless all of the Lenders agree in
writing thereto, no amendment, modification, waiver, consent or other action
with respect to any of the Loan Documents shall be effective which (i) increases
the Aggregate Commitment, increases the Percentage Interest of any of the
Lenders or increases any Lender's Separate Commitment, (ii) reduces any
commission, fee, principal or interest owing to any Lender hereunder or the
method of calculation of any thereof, (iii) extends the Maturity Date, the
-74-
expiry date of any Letter of Credit beyond the Maturity Date or any other date
on which any sum is due hereunder, including, without limitation, the date or
amount of any prepayment required hereunder, (iv) other than as set forth in
Section 4.7, releases any Collateral, guaranty or other security or (v) amends,
waives or modifies the provisions of any Section in this Article IX or the
definition of "Lender Majority" or "Lender Supermajority." Each Lender
understands and agrees that if such Lender is a Defaulting Lender then
notwithstanding any other provisions of this Agreement other than Section
9.4(b), such Lender shall not be entitled to vote on any matter requiring its
consent or vote or to object to any matter requiring the consent or vote of all
or any portion of the Lenders; provided, however, that all other benefits and
obligations under the Loan Documents shall continue to apply to such Defaulting
Lender except as may be expressly provided in this Agreement.
Section 9.5 Exculpation. Each of the Agents shall have no duties,
responsibilities, rights or liabilities as an Agent except as may be expressly
provided in this Agreement. Each of the Agents has and shall have no duty or
responsibility whatsoever on the date hereof or at any time hereafter, to
provide any Lender with any credit or other information relating to the
Borrowers, except as may be expressly provided in this Agreement. Nothing herein
shall (nor shall it be construed so as to) constitute an Agent a trustee for the
Borrowers or their Subsidiaries or impose on it any duties or obligations
whatsoever under this Agreement, the other Loan Documents, or otherwise, except
as may be expressly provided in this Agreement. Neither the Administrative Agent
nor the Collateral Agent shall be liable or answerable for anything whatsoever
in connection with any of the Loan Documents or other instrument or agreement
required hereunder or thereunder, including without limitation responsibility in
respect of the execution, delivery, construction or enforcement of any of the
Loan Documents or any such other instrument or agreement, or for any action
taken or not taken by the Administrative Agent or the Collateral Agent in any
case involving exercise of any power or authority conferred upon the
Administrative Agent or the Collateral Agent under any thereof, except for its
willful misconduct or gross negligence, and the Administrative Agent and the
Collateral Agent shall have no duties or obligations other than as provided
herein and therein. The Administrative Agent and the Collateral Agent shall each
be entitled to rely on any opinion of counsel (including counsel for any of the
Borrowers or any of their Subsidiaries) in relation to any of the Loan Documents
or any other instrument or agreement required hereunder or thereunder and upon
writings, statements and communications received from the Borrowers or any of
its Subsidiaries (including any representation made in or in connection with any
Loan Document), or from any other party to any of the Loan Documents or any
documents referred to therein or any other Person, firm or corporation
reasonably believed by it to be authentic, and the Administrative Agent and the
Collateral Agent shall not be required to investigate the truth or accuracy of
any writing or representation, nor shall the Administrative Agent or the
Collateral Agent be liable for any action it has taken or omitted in good faith
on such reliance.
Section 9.6 Indemnification. Each Lender agrees to indemnify each
Agent, except to the extent reimbursed by the Borrowers and except in the case
of any suit by any Lender against such Agent resulting in a final judgment
against such Agent, ratably according to its Percentage Interest against all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursement of any kind or nature whatsoever (except to the
extent the foregoing result from the Agent's gross negligence or willful
misconduct) which may be imposed on, incurred by or asserted against the Agent
in any way relating to or arising out of (y) any of the Loan Documents or any
other instrument or agreement contemplated hereunder or thereunder or (z) any
action taken or omitted by the Agent under any of the Loan Documents or such
other instrument or agreement.
-75-
Section 9.7 Administrative Agent and Collateral Agent as Lenders. Each
of the Administrative Agent and the Collateral Agent shall, in its individual
capacity, have the same rights and powers hereunder as any other Lender and may
exercise the same as though it were not an Agent; the term "Lenders" shall
include each of the Administrative Agent and the Collateral Agent in its
individual capacity to the extent of its Percentage Interest. Each of the
Administrative Agent and the Collateral Agent and its respective Subsidiaries
and Affiliates may accept deposits from, lend money to, and generally engage in
any kind of banking, trust or other business with each of the Borrowers, and
their respective Subsidiaries and Affiliates, as if it were not the
Administrative Agent or Collateral Agent, as the case may be.
Section 9.8 Notice of Transfer; Resignation; Successor Agents.
(a) Each Agent may deem and treat a Lender as the owner of
such Lender's Percentage Interest in any Loan and any other instrument or
agreement of the assignment or transfer thereof, executed by such Lender and
otherwise in compliance with the requirements of Section 9.10 hereof, shall have
been received and accepted by the Administrative Agent. Each Agent shall resign
if directed by the Lender Majority. Either Agent may resign at any time by
notice to the Borrowers, the other Agent and the Lenders.
(b) Any successor to the Administrative Agent or the
Collateral Agent shall be appointed by the Lender Majority and shall be a bank
or trust company reasonably satisfactory to the Lender Majority, and, so long as
no Event of Default shall have occurred and be continuing, appointment of any
such successor Agent (whether by the Lender Majority, or by the retiring
Administrative Agent in the case of a successor Administrative Agent, or by the
Administrative Agent in the case of a successor Collateral Agent) shall be
subject to the consent of the Borrowers, such consent not to be unreasonably
denied or withheld. If no successor Agent shall have been so appointed by the
Lender Majority, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Majority Lender's
removal of the Agent, then (i) in the event of a resignation or removal of the
Administrative Agent, such retiring Administrative Agent may, or (ii) in the
event of a resignation or removal of the Collateral Agent, the Administrative
Agent, on behalf of the Lenders, shall appoint a successor Agent, which shall be
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
$100,000,000. Upon the acceptance of any appointment as Administrative Agent or
Collateral Agent hereunder by a successor Administrative Agent or Collateral
Agent, respectively, such successor Administrative Agent or successor Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent or Collateral Agent,
as the case may be, and the retiring Administrative Agent or Collateral Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Agent's resignation or removal hereunder as such Agent, the
provisions of this Article IX shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
-76-
(c) The Borrowers, the Lenders and the Agents acknowledge that
Mellon has or will enter into an asset purchase or other agreement with Citizens
pursuant to which Mellon will sell, assign and transfer all or a portion of its
assets to Citizens (the "Citizens Transaction"). In connection therewith, the
Borrowers and Lenders agree that (i) the Administrative Agent and the Collateral
Agent may resign without additional notice to the Borrowers and the Lenders,
(ii) Citizens will become the successor to the Administrative Agent and to the
Collateral Agent without the prior appointment of the Lender Majority or the
consent of the Borrowers, (iii) Citizens shall succeed to and become vested with
all the rights, powers, privileges and duties of Mellon as the retiring
Administrative Agent and the Collateral Agent, and (iv) Mellon as the retiring
Administrative Agent and the Collateral Agent shall be discharged from its
duties and obligations under this Agreement. The provisions of this Article IX
shall inure to the benefit of Mellon with respect to any actions taken or
omitted to be taken by Mellon while it was an Agent under this Agreement.
Section 9.9 Credit Decision; Agents Not Trustees. Each Lender
represents that it has made, and agrees that it shall continue to make its own
independent investigation of the financial condition of each of the Borrowers
and their Subsidiaries and its own appraisal of the creditworthiness of each of
the Borrowers and their Subsidiaries in connection with the making and
performance of the Loan Documents. The Administrative Agent and the Collateral
Agent have and shall have no duty or responsibility whatsoever on the date
hereof or, except as otherwise expressly provided in this Agreement at any time
hereafter, to provide any Lender with any credit or other information. Nothing
herein shall (nor shall it be construed so as to) constitute the Administrative
Agent or the Collateral Agent a trustee for any of the Borrowers or their
Subsidiaries or impose on it or them any duties or obligations other than those
for which express provision is made in this Agreement or under the other Loan
Documents.
Section 9.10 Assignments and Participation; Termination.
(a) Each Lender may assign to one or more banks or other
entities all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Percentage Interest, the
Advances owing to it and the Notes held by it), but only with the prior written
consent of the Administrative Agent (which consent will not be unreasonably
withheld), and only subject to the other terms and conditions of this Agreement,
including without limitation the following: (i) each such assignment shall be of
a constant, and not a varying, percentage of all rights and obligations under
this Agreement, (ii) the amount of the Percentage Interest 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 $5,000,000.00 or such lesser amount as shall constitute
all of such assigning Lender's Percentage Interest and the outstanding principal
of the Notes payable to it, (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 its acceptance and recording in the Register,
an Assignment and Acceptance, together with the Note subject to such assignment
and a processing recordation fee of $2,500. Any such assignment shall be subject
to the further condition precedent that, so long as no Event of Default shall
have occurred and be continuing, each such assignment shall be subject to the
consent of the Borrowers, which consent shall not unreasonably be denied and
-77-
which consent shall be deemed given unless the Borrowers gives the assigning
Lender and the Administrative Agent written notice of and a reasonable basis for
its denial not later than 10 Business Days following telex, telefacsimile or
cable notice given to the Borrowers by the assigning Lender or the
Administrative Agent of the name of the proposed transferee, the amount of
Percentage Interest to be assigned and such information as the Borrowers may
reasonably request for purposes of making an informed judgment. Prior to
contacting a prospective assignee in connection with a proposed assignment
hereunder, the assignor Lender shall give the Borrowers notice of the identity
of any such prospective assignee. Any consent to assignment untimely or
unreasonably denied by the Borrowers shall be void and of no effect, and shall
not preclude or bar any assignment otherwise permitted by this Section 9.10(a).
Any assignment or purported assignment not in compliance with this Section
9.10(a) shall be void and of no effect. Without regard to any of the other terms
of this Agreement or of any other agreement, (A) Mellon as a Lender may assign
all or any portion of its rights under this Agreement to Citizens in connection
with the Citizen Transaction, and (B) any Lender may assign, as collateral or
otherwise, any of its rights (including, without limitation, rights to payments
of principal and/or interest on the Note) under this Agreement to any other
Lender or any Federal Reserve Bank of the United States without notice to or
consent of the Borrowers, the Administrative Agent or any other Person.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment and Acceptance
(i) the assignee thereunder shall be a party hereto and a "Lender" for all
purposes hereof, and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance and subject to
the foregoing, have the rights and obligations of a Lender hereunder and (ii)
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 party hereto).
(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 connection with this Agreement
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any of
the Borrowers or its Subsidiaries or the performance or observance by any of the
Borrowers or its Subsidiaries of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this agreement, together with copies of
the Borrowers' financial statements referred to herein, 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 the Administrative 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 the
Administrative Agent and Collateral Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent and Collateral Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.
-78-
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, the Administrative Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit A hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register(including the transfer of the related Note to such Eligible
Assignee by the assigning Lender) and (iii) give prompt notice and an execution
counterpart thereof to the Borrowers. Within five (5) Business Days after the
Borrowers' receipt of such notice, the Borrowers at the expense of the assigning
Lender, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Notes, New Notes to the order of such Eligible Assignee or, and
if such Assignment and Acceptance reflects a partial assignment, New Notes to
the order of the assigning Lender and to the order of the Eligible Assignee,
respectively, in the principal amounts set forth in such Assignment and
Acceptance. Such New Notes shall be in an aggregate principal amount equal to
the then outstanding aggregate principal amount of such surrendered Notes, shall
be dated the effective date of such Assignment and Acceptance and so otherwise
be in substantially the form of Exhibit D hereto.
(e) The Administrative Agent shall maintain at its offices a
register for the recordation of the names and addresses of the Lenders and the
Percentage Interest of, and principal amount of the Advance owing and each Note
payable to, each Lender from time to time and a copy of each Assignment and
Acceptance delivered to and accepted by it (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, the Administrative Agent, the Collateral Agent 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 Borrowers or any Lender at any reasonable time and from
time to time upon reasonable prior notice and each shall be entitled to make
copies thereof at its expense.
(f) Each Lender may grant participations to one or more banks
or other entities in or to all or any part of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Percentage Interest and the Advance owing to it); provided, however, that,
notwithstanding the grant of any such participation by any Lender, such
participation, and the right to grant such a participation, shall be expressly
subject to the following conditions and limitations: (i) such Lender's
obligations under this Agreement (including without limitation, its Commitment
to the Borrowers hereunder) 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 Notes
and Advances for all purposes of this Agreement, (iv) the Borrowers, the
Administrative Agent, the Collateral 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 this Agreement and (v) such Lender shall continue
to be able to agree to any modification or amendment of this Agreement or any
waiver hereunder without the consent, approval or vote of any such participant
or group of participants. No participant shall be deemed to be or to have any of
the rights or obligations of a "Lender" hereunder.
-79-
(g) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 9.10, disclose to the assignee or
participant, or proposed assignee, or participant, any information relating to
any of the Borrowers or their Subsidiaries that is otherwise publicly available
and has been furnished to such Lender by or on behalf of the Borrowers, provided
that without the Borrowers' prior written or oral consent, no Lender shall
disclose to any proposed assignee or proposed participant, any such information
not otherwise publicly available relating to the Borrowers or its Subsidiaries
as has been furnished to such Lender by or on behalf of the Borrowers hereby;
provided, however, any Lender may disclose such information to a potential
assignee if prior to any disclosure, the potential assignee has signed a
confidentiality agreement in form and substance reasonably satisfactory to
Borrowers. Any Lender that sells or grants a participation pursuant to this
Section 9.10 shall (i) in a timely manner withhold or deduct from each payment
to the holder of such participation the amount of any Taxes required under
Applicable Law to be withheld or deducted from such payment that have not been
withheld or deducted by the Borrowers or the Administrative Agent or the
Collateral Agent (ii) pay such Taxes in a timely manner to the appropriate
authorities and (iii) indemnify the Borrowers and the Administrative Agent or
the Collateral Agent for any Taxes, losses, costs or expenses that they may
incur as a result of any failure to pay such Taxes to the appropriate authority
when due.
ARTICLE X
Miscellaneous
Section 10.1 Waiver. Neither this Agreement nor any provisions hereof
may be changed, waived, discharged, or terminated, except by instrument in
writing signed by the parties hereto.
Section 10.2 Benefit. No Borrower may transfer or assign its rights and
obligations hereunder, and subject to such restriction, the provisions hereof
shall extend to and be binding upon a Borrower's successors and permitted
assigns. All covenants and agreements made by or on behalf of any of the parties
hereto shall bind and inure to the benefit of, and be enforceable by, the
respective successors and permitted assigns of the parties hereto, whether so
expressed or not, and, in particular, shall inure to the benefit of, and be
enforceable by, the holder or holders of each Note.
Section 10.3 Survival of Representations, Covenants and Warranties. All
representations, covenants and or warranties herein contained or in any other
instrument contemplated hereby shall survive the execution and delivery of this
Agreement and each Note, and no investigation by any Lender or any Agent shall
affect the representations, covenants and/or warranties or the right of the
Lenders and the Agents to rely on and enforce them.
-80-
Section 10.4 Notices. Unless actual receipt is otherwise required by
the specific provisions hereof, any notice or demand upon any party to this
Agreement shall be deemed to have been effectively given or made (i) two
Business Days after it is deposited in first class, certified or registered,
U.S. mail, postage prepaid, or (ii) when actually delivered during normal
business hours on any Business Day by messenger, in person, courier service,
telegram or telecopier (with evidence of receipt in the case of telegram or
telecopier) to the applicable recipient at its address and attention set forth
below (or at such other address or attention as shall have been hereafter
designated therefor by written notice from the recipient to the sender):
If to any of the Borrowers: c/o Maritrans Inc.
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx
Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx., Legal Counsel
with a copy to: Maritrans Business Services Co., Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Financial Manager
If to the Administrative Agent Mellon Bank, N.A.
and/or the Collateral Agent: Mellon Gateway Center
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx, Vice President
with a copy to: Legal Department
Mellon Bank, X.X.
Xxxxxx Bank Center, 0000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
and a copy to: Stradley, Ronon, Xxxxxxx & Young, LLP
Xxxxx 0000
Xxx Xxxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esquire
Section 10.5 Governing Law; Consent to Jurisdiction and Venue. In all
respects, including all matters of construction, validity and performance, this
Agreement, each Note and the Obligations shall be governed by, and construed and
enforced in accordance with, the laws of the Commonwealth of Pennsylvania
applicable to contracts made and performed in such State, without reference to
-81-
rules of choice of law or conflicts of laws, and any applicable laws of the
United States of America. Each Borrower hereby consents and agrees that the
State or federal courts having jurisdiction in Xxxxxxxxxx County, Pennsylvania
shall have exclusive jurisdiction to hear and determine any claims or disputes
between or among any one or more Borrowers or Lenders or Administrative Agent
pertaining to this Note, the Credit Agreement, any of the Loan Documents or the
Obligations, or any transactions arising out of or relating to the foregoing,
provided, that nothing in this Note shall be deemed or operate to preclude the
Administrative Agent or one or more Lenders from bringing suit or taking other
legal action in any other jurisdiction to realize on any Collateral or any other
security for the Obligations, or to enforce a judgment or other court order.
Each Borrower expressly submits and consents in advance to such jurisdiction in
any action or suit commenced in any such court, and each Borrower hereby waives
any objection which it may have based upon lack of personal jurisdiction,
improper venue or forum non conveniens and hereby consents to the granting of
such legal or equitable relief as is deemed appropriate by such court. Each
Borrower hereby waives personal service of the summons, complaint and other
process issued in any such action or suit and agrees that service of such
summons, complaints and other process may be made by registered or certified
mail addressed to such Borrower at the address of such Borrower provided for
notices under this Agreement, and that service so made shall be deemed completed
upon the earlier of actual receipt thereof or three (3) days after deposit in
the U.S. mails, properly addressed with postage prepaid.
Section 10.6 Waiver of Jury Trial. Because disputes arising in
connection with complex financial transactions are most quickly and economically
resolved by an experienced and expert person and the parties wish applicable
State and federal Laws to apply (rather than arbitration rules), the Borrowers,
the Agents and the Lenders desire that disputes arising hereunder or relating
hereto be resolved by a judge applying such applicable Laws. Therefore, to
achieve the best combination of the benefits of the judicial system and or
arbitration, each Borrower, the Lenders and the Agents hereby mutually waive, as
a separate covenant, all rights to trial by jury in any action, suit or
proceeding brought to resolve any dispute, whether sounding in contract, tort,
or otherwise, arising out of, connected with, related to, or incidental to the
relationship established in connection with this Agreement and any of the other
Loan Documents, the Obligations or the transactions related hereto or thereto.
Section 10.7 Severability. Any article, section, clause or subsection,
sentence, paragraph or provision of this Agreement held by a court of competent
jurisdiction to be invalid, illegal, or ineffective shall not impair, invalidate
or nullify the remainder of this Agreement, but the effect thereof shall be
confined to the article, section, clause, subsection, sentence, paragraph or
provision so held to be invalid, illegal or ineffective.
Section 10.8 Effect of Waiver. No consent or waiver, express or
implied, by any Agent or Lender of any breach of or deviation from any covenant,
condition or duty of any Borrower or Borrowers shall be deemed a consent or
waiver to or of any breach of the same or any other covenant, condition or duty.
Section 10.9 Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
-82-
Section 10.10 Investment Representation. Each Lender hereby represents
to the Borrowers that it has acquired the Notes in favor of such Lender in a
commercial banking transaction without a view towards distribution.
Section 10.11 Further Assurances. Each Borrower agrees that it will
execute and deliver to the Administrative Agent such additional agreements and
instruments, in form and substance satisfactory to the Administrative Agent's
counsel, and do such further acts and things of any nature, whether similar to
the acts enumerated above or not, as the Administrative Agent or the
Administrative Agent's counsel may require or reasonably deem advisable to carry
into effect the purposes of this Agreement and the other Loan Documents or to
better assure and confirm unto the Lenders and the Agent their rights, powers
and remedies under this Agreement and the other Loan Documents.
Section 10.12 Expenses and Legal Fees. Borrowers will pay all fees and
expenses arising in connection with this Agreement or any amendment or waiver
hereto and the Closing of the transactions contemplated hereby including, but
not limited to, all legal fees and out-of-pocket expenses incurred by the
Administrative Agent and the Lenders in the development, preparation, due
diligence, negotiation, filing, closing and modification of the Loan Documents
and the administration and enforcement of the Transaction Liens and the Agents'
and the Lenders' rights hereunder and under the other Loan Documents. The
Borrowers shall also be responsible for all expenses pertaining to surveys,
appraisals, environmental reports, verifications, field examinations and other
administrative expenses. The structuring, loan and or commitment fees and
expenses attributable to the Closing shall be paid at and as a condition of the
Closing.
Section 10.13 Indemnity. Each Borrower hereby indemnifies, holds
harmless, and upon request will defend the Agents and the Lenders and their
respective shareholders, officers, directors, employees, attorneys and agents,
and their respective successors and permitted assigns (collectively, the
"Indemnified Parties") from and against any and all claims and liabilities to
third parties, and will pay and reimburse to the Indemnified Parties all losses,
payments, reasonable costs and expenses associated therewith, or of the Agents'
or the Lenders defense (including without limitation reasonable attorneys' fees)
which the Agents and the Lenders may suffer, incur or be exposed to by reason of
or in connection with or rising out of (i) the transactions evidenced by or
referred to in or related to this Agreement, any of the Vessels, Vessel
Mortgages, or any of the Loan Documents, and (ii) any actions or omissions of
any one or more of the Indemnified Parties which conforms with the terms of this
Agreement, the Vessel Mortgages or the other Loan Documents, or is in good faith
and connected therewith or with the enforcement thereof; provided, however, that
the Indemnified Parties shall not be indemnified, defended or held harmless for
any consequential or indirect losses or damages, or any losses or damages which
were caused by the Indemnified Parties' willful misconduct or gross negligence.
-83-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, effective as of the date first above written.
Borrowers:
Attest: MARITRANS INC.
a Delaware corporation
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------- -----------------------
Name: Xxxxxx X. Xxxxxx, Xx. Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Secretary Title: Treasurer
Attest: MARITRANS LIBERTY CO.
a Nevada corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------- --------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Secretary Title: Vice President
Attest: MARITRANS 244 CO.
a Nevada corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Secretary Title: Vice President
Attest: MARITRANS 192 CO.
a Nevada corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Secretary Title: Vice President
-84-
Attest: MARITRANS 400 CO.
a Nevada corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Secretary Title: Vice President
Attest: MARITRANS 300 CO.
a Nevada corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Secretary Title: Vice President
Attest: MARITRANS 252 CO.
a Nevada corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Secretary Title: Vice President
Attest: MARITRANS INTEGRITY CO.
a Nevada corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Secretary Title: Vice President
Attest: MARITRANS DILIGENCE CO.
a Nevada corporation
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
Title: Assistant Secretary Title: Vice President
-85-
Lenders:
MELLON BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxx X. XxXxxxxx
---------------------
Name: Xxxx X. XxXxxxxx
Title: Director
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxx
---------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
HIBERNIA NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
Administrative Agent:
MELLON BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Collateral Agent:
MELLON BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
-86-
Exhibit A
[Form of Assignment and Acceptance]
____________________, Assignor
_____________________, Assignee
This Assignment and Acceptance Agreement (the "Agreement") dated as of
the date specified in Item 1 of Schedule I attached hereto, by and among the
financial institution specified in Item 2 of Schedule 1 attached hereto (the
"Assignor"), the financial institution specified in Item 3 of Schedule I
attached hereto (the "Assignee"), and Mellon Bank, N.A., as Administrative Agent
under the Credit Agreement described below (the "Administrative Agent").
RECITALS
A. This Agreement is being executed and delivered in
accordance with Section 9.10 of the Credit and Security Agreement, dated as of
November __, 2001, by and among Maritrans Inc., a Delaware corporation, the
other Borrowers signatory thereto (the "Borrowers"), Mellon Bank, N.A., as
Administrative Agent, Collateral Agent and Lender and the other Lenders
signatory thereto (as amended through the date hereof and as the same may be
further amended, modified, restated or supplemented from time to time, the
"Credit Agreement"). Capitalized terms used herein without definition have the
meanings specified in the Credit Agreement.
B. The Assignee (if not already a Lender) wishes to become a
Lender party to the Credit
Agreement.
C. The Assignor is selling and assigning to the Assignee, and
the Assignee is purchasing and assuming, a certain portion of the Assignor's
rights and obligations under the Credit Agreement, including, without
limitation, a portion of the Assignor's Separate Commitment (which includes,
among other things, the obligation of the Assignor to participate in certain
obligations in respect of Letters of Credit), Loans owing to it, Notes held by
it, and Collateral for its benefit (the "Assignor's Interests").
D. By signing below, the Administrative Agent and Borrowers
are giving their written consent to such assignment, to the extent required by
Section 9.10(a) of the Credit Agreement.
The parties agree as follows:
1. Assignment.
(a) Subject to the terms and conditions set forth
herein, the Assignor hereby irrevocably sells and assigns to the Assignee and
the Assignee hereby purchases and assumes from the Assignor, without recourse,
representation or warranty, except as set forth in Section 4 hereof, (i) all
right, title and interest of the Assignor to the portion being purchased by the
Assignee (the "Purchased Percentage") of the Assignor's Interests as specified
in Item 4 of Schedule I attached hereto and (ii) all obligations of the Assignor
under the Credit Agreement with respect to the Purchased Percentage of
Assignor's Interests, such that after giving effect to the assignments and
transfers contemplated herein, the revised Separate Commitment of the Assignor
and the Assignee shall be as set forth on ,Schedule I attached hereto.
(b) At or before 12:00 noon, Eastern time, on the
Prevailing Time (as defined below), the Assignee shall pay to the Assignor an
amount equal to the purchase price, as agreed upon by the Assignor and Assignee
(the "Purchase Price"). The Purchase Price will reflect the Purchased Percentage
of the Assignor's Interests in the Loans outstanding on the Effective Date.
2. Effectiveness of Assignment.
(a) The assignments to, and assumptions by, the
Assignee made pursuant to this Agreement shall be effective on the date
specified in Item 1 of Schedule I attached hereto (the "Effective Date").
(b) Notwithstanding subsection (a) of this Section 2,
the assignments to, and assumptions by, the Assignee made pursuant to this
Agreement shall not be effective and the Effective Date shall not be deemed to
have occurred until receipt by the Assignor of payment in full of the Purchase
Price, the receipt by the Administrative Agent of the Processing Fee (if any),
the consent of Borrowers (if required), and the execution and delivery of this
Agreement.
3. Further Assurances. Each of the parties hereto agrees to
take such further action as may be reasonably requested by any of the other
parties hereto and as shall be necessary or reasonably desirable to further
effectuate the purposes of this Agreement.
4. Representations and Warranties.
(a) The Assignor and the Assignee represent and
warrant to each other that (i) it has full power and legal right to execution
and deliver this Agreement and to perform the provisions of this Agreement; (ii)
the execution, delivery and performance of this Agreement have been authorized
by all necessary action on its part, corporate or otherwise, and do not violate
any provisions of its charter or by-laws or any contractual obligations or
requirement of law binding on it; and (iii) this Agreement constitutes its
legal, valid and binding obligation. The Assignor hereby further represents and
warrants to the Assignee that it is the legal and beneficial owner of the
Assignor's Interests, free and clear of all Liens and adverse claims created by
the Assignor. The Assignee hereby further represents that it is an Eligible
Assignee
(b) The Assignor and Assignee represent and warrant
to the Administrative Agent that, subject to the delivery of this Agreement to
the Administrative Agent, their acceptance thereof and payment of the Processing
Fee (if any), all conditions of Section 9.10(a) of the Credit Agreement to the
assignment hereunder of the Assignor's Interests have been fulfilled and that
such assignment does not violate any provision of Section 9.10 of the Credit
Agreement.
(c) Other than the representations and warranties
provided in this Section 4, the Assignor makes no representation or warranty and
assumes no responsibility with respect to (i) the execution, delivery,
effectiveness, enforceability, genuineness, validity or adequacy of the Credit
Agreement or any other Loan Document, (ii) any recital, representation,
warranty, document, certificate, report or statement in, provided for in,
received under or in connection with the Credit Agreement or any other Loan
Document, or (iii) the existence, validity, enforceability, perfection,
recordation, priority, adequacy or value, now or hereafter, of any Lien or other
direct or indirect security afforded or purported to be afforded by any of the
Loan Documents or otherwise from time to time.
(d) The Assignor makes no representation or warranty
and assumes no responsibility with respect to (i) the performance or observance
of any of the terms or conditions of the Credit Agreement or any other Loan
Document on the part of the Borrower, (ii) the business, operations, condition
(financial or, otherwise) or prospects of Borrower or any other Person or (iii)
the existence of any Event of Default or Default.
5. Consent to be Bound. The Assignee acknowledges that it has
reviewed the terms and conditions of the Credit Agreement and the other Loan
Documents referred to in or delivered pursuant to the Credit Agreement, and
acknowledges and expressly agrees that it will be bound by the terms and
conditions of the Credit Agreement and Loan Documents. The Assignee irrevocably
appoints the Administrative Agent to act as agent for the Assignee under the
Credit Agreement and the other Loan Documents, all in accordance with Article IX
of the Credit Agreement and the other provisions of the Credit Agreement and the
other Loan Documents.
6. Assignment and Acceptance Under Credit Agreement. The
parties hereto agree that this Agreement shall be deemed an Assignment and
Acceptance pursuant to Section 9.10 of the Credit Agreement. The Borrower shall
make payments with respect to the Purchased Percentage of Assignor's Interests
to the Administrative Agent on behalf of the Assignee for the account of the
[Lending Offices] specified on Schedule I hereto (which also sets forth the
Assignee's address for notices pursuant to Section 10.4 of the Credit
Agreement); provided, however, that Borrowers and the Administrative Agent shall
be entitled to continue to deal solely and directly with the Assignor in
connection with the Purchased Percentage of Assignor's Interests until the
Administrative Agent shall have received counterparts of this Agreement duly
executed by the Assignor, the Assignee and Borrowers (if required), and the
Effective Date shall have occurred. From and after the Effective Date, the
Assignee shall be deemed to be party to the Credit Agreement and, to the extent
that rights and obligations thereunder shall have been assigned to the Assignee
as provided herein, shall have the rights and obligations of a Lender under the
Credit Agreement and the related Loan Documents, to the extent of the Purchased
Percentage of Assignor's Interests (in addition to any interests previously held
by the Assignor), and, to the extent of the Purchased Percentage of Assignor's
Interests, the Assignor shall be released from all obligations of a Lender under
the Credit Agreement and the related Loan Documents.
7. Principal Interest and Fees. From and after the Effective
Date, (a) all interest, principal, fees and other amounts that would otherwise
be payable to the Assignor in respect of the Purchased Percentage of Assignor's
Interests shall be paid to the Assignee and (b) if the Assignor receives any
payment on Account of its Purchased Percentage of Assignor's Interests, the
Assignor shall hold such payment for benefit of the Assignee and shall promptly
deliver it to the Assignee to the extent of the Purchased Percentage of
Assignor's Interests.
8. Independent Investigation. The Assignee acknowledges that:
(a) it is purchasing its Purchased Percentage of Assignor's Interests from the
Assignor totally without recourse and, except as provided in Section 4 hereof
without representation and warranty; (b) it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 5.4 thereof, the other Loan Documents and such other documents and
information as it has deemed appropriate to make its own credit and legal
analysis and decision to enter into this Agreement; (c) it has made its own
independent investigation of the underlying commercial loan transaction and
credit evaluation of the Borrower in connection with its purchase of its
Purchased Percentage of Assignor's Interests; and (d) except for the
representations and warranties set forth in Section 4 hereof, it is not relying
on any representation or warranty of the Assignor or any Administrative Agent,
express or implied, including without limitation, any representation or warranty
relating to the legality, validity, genuineness, enforceability of the Credit
Agreement, the related Notes, or any other Loan Document referred to in or
delivered pursuant to the Credit Agreement, or the financial condition or
creditworthiness of the Borrower. Neither Assignor nor Administrative Agent has
acted nor will it be acting as either the representative, agent or trustee of
the Assignee with respect to matters arising out of or relating to the Credit
Agreement or this Agreement. From and after the Effective Date, no Assignor
shall have rights or obligations with respect to its Purchased Percentage of
Assignor's Interests.
9. Method of Payment. All payments to be made by any party
hereunder shall be in funds available at the place of payment on the same day
and shall be made by wire transfer to the account designated by the party to
receive payment or in such other manner as shall be agreed upon by the Assignor
and the Assignee.
10. Integration. This Agreement shall supersede any prior
agreement or understanding between the parties (other than the Credit Agreement
and the other Loan Documents) as to the subject matter hereof.
11. Counterparts; Successors and Assigns. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original and shall be binding upon the parties and their respective
successors and assigns.
12. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective duly authorized officers on
Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
Schedule I
COMPLETION OF INFORMATION AND
SIGNATURES FOR AGREEMENT
Re: Credit and Security Agreement, dated as of November __, 2001, by and among
Maritrans Inc., a Delaware corporation, the other Borrowers signatory
thereto, Mellon Bank, N.A., as Administrative Agent, Collateral Agenet and
Lender and the other Lenders signatory thereto.
Item 1 (Effective Date):
Item 2 (Assignor):
Item 3 (Assignee Name and Address):
Item 4 (Purchased Percentage of Assignor's Interests):
Assignor Separate Commitment: $
Assignee Separate Commitment: $
Item 5 (Signatures of Parties to Agreement):
[ASSIGNOR]
----------------------------------
By:
-------------------------------
Name:
Title:
[ASSIGNEE]
----------------------------------
By:
-------------------------------
Name:
Title:
CONSENTED TO AND ACCEPTED:
MELLON BANK, N.A., as Administrative Agent
By:_______________________________
Name:
Title:
MARITRANS INC.
By:_______________________________
Name:
Title:
MARITRANS 400 CO.
MARITRANS LIBERTY CO.
MARITRANS 192 CO.
MARITRANS DILIGENCE CO.
MARITRANS INTEGRITY CO.
MARITRANS 300 CO.
MARITRANS 244CO.
MARITRANS 252 CO.
By: _______________________________
Name:
Title:
Exhibit B
[Form of Borrowing Notice]
Mellon Bank, N.A. as Administrative Agent
AIM 199-5220
X.X. Xxx 0000
Xxxxxxxxxxxx, Xx 00000-0000
Attention:
Re: Borrowers Borrowing Notice
Ladies and Gentlemen:
Reference is made to that certain Credit and Security Agreement dated
as of November ___, 2001, by and among Maritrans Inc., a Delaware corporation,
the other Borrowers signatory thereto (individually a "Borrower" and
collectively, the "Borrowers"), Mellon Bank, N.A., as Administrative Agent,
Collateral Agent and Lender and the other Lenders signatory thereto (as amended,
modified, restated and/or supplemented from time to time, the "Credit
Agreement"). Capitalized terms used herein and not defined herein shall have the
meaning given to such terms in the Credit Agreement.
Borrowers hereby give notice pursuant to Section 2.3 of the Credit
Agreement of their request for the following Loan(s) in the following amount(s):
Loan Amount
---- ------
The Loan(s) requested hereby is/are to be made on _______________________.
Please disburse the proceeds of the Loan(s) by wire transfer in accordance with
the attached.
The Borrowers certify as follows:
(i) the representations and warranties of each Borrower made in the Credit
Agreement and each other Loan Document are, and after giving effect to
the Loan(s) requested hereby will be, true and correct in all material
respects as of the date hereof as if made on and as of such date:
(ii) there shall not, either prior to or after giving effect to the Loan(s)
requested hereby, exist an Event of Default or Default; and
(iii) the Borrowers are, and after giving effect to the Loan(s) requested
hereby will be, in compliance with the financial covenants set forth
in Article 6.2(j) of the Credit Agreement.
IN WITNESS WHEREOF, each Borrower has caused this Borrowing Notice to
be executed by its authorized officer this _________ day of
____________, ________.
MARITRANS INC. MARITRANS 400 Co.
MARITRANS LIBERTY CO.
By:__________________________ MARITRANS 192 CO.
Name: _______________________ MARITRANS DILIGENCE CO.
Title: ______________________ MARITRANS INTEGRITY CO.
MARITRANS 300 CO.
MARITRANS 244 CO.
MARITRANS 252 CO.
By: _______________________
Name: _____________________
Title: ____________________
Exhibit C
[Form of Interest Rate Selection Notice]
Mellon Bank, N.A., Administrative Agent Dated as of: ______________
Mellon Gateway Center
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
RE: Credit Agreement Dated November ____, 2001
Ladies and Gentlemen:
Reference is made to the Credit Agreement (the "Credit
Agreement"), dated as of November ___, 2001, among Maritrans Inc., a Delaware
corporation, the other Borrowers signatory thereto (the "Borrowers") and Mellon
Bank, N.A., in its capacity as the Administrative Agent, Collateral Agent and
Lender and the other Lenders signatory thereto. All capitalized terms used
herein which are not otherwise defined shall have the meanings set forth in the
Credit Agreement.
The Borrowers hereby notify you, in accordance with Section
2.4(b) of the Credit Agreement, of the following:
The Borrowers select the following Interest Option[s] to be in
effect for the following Portion[s] of the Loan for the following respective
Interest Period[s] beginning and ending on the respective dates set forth below:
[Specify]
MARITRANS INC.
By: _______________________
Name: _____________________
Title: ____________________
MARITRANS 400 CO.
MARITRANS LIBERTY CO.
MARITRANS 192 CO.
MARITRANS DILIGENCE CO.
MARITRANS INTEGRITY CO.
MARITRANS 244 CO.
MARITRANS 300 CO.
MARITRANS 252 CO.
By: _______________________
Name: _____________________
Title: ____________________
Exhibit D
[Form of Note]
SENIOR SECURED PROMISSORY NOTE
$_______________ November __, 2001
FOR VALUE RECEIVED, and intending to be legally bound hereby, the
undersigned, __________________, a ________ corporation ("Borrower"), HEREBY
UNCONDITIONALLY PROMISES TO PAY to the order of ________________________ (the
"Holder"), the sum of the amounts advanced or readvanced to one or more of the
Borrowers referenced below from time to time up to the maximum principal amount
at any one time of _________________ ($_______). The Borrower promises to pay
interest on the unpaid principal hereof from the date hereof until such
principal amount is paid in full, at such interest rates, and at such times, as
are specified in the Credit and Security Agreement dated as of the date hereof
by and among the Borrower, the other Borrowers signatory thereto (collectively,
the "Other Borrowers"), Mellon Bank, N.A. as the administrative agent (the
"Administrative Agent") and the collateral agent (the "Collateral Agent" and,
together with the Administrative Agent, the "Agents"), Mellon Bank, N.A. as a
Lender and the other Lenders signatory thereto, as such Lenders may be changed
from time to time as provided therein (as amended, modified or supplemented from
time to time, the "Credit Agreement"); provided, however, that all amounts of
principal and interest hereon shall be paid no later than January 31, 2007. The
Borrower and the Other Borrowers, jointly and severally, are liable for the
payment and performance of all of the Obligations.
Payments of principal, interest and other sums with respect to the
amounts owed hereunder shall be made on the terms and conditions provided in the
Credit Agreement and this Note. All payments of principal and interest hereunder
shall be due and payable at the office of the Administrative Agent in collected
funds in Dollars at 12:00 o'clock Noon, Prevailing Time, on the day when due, by
wire to:
Mellon Bank, N.A.
Xxxxxxxxxxxx, XX 00000
ABA No. 000000000
Attention: Loan Administration
Wire Account No. 990873703
Reference: Maritrans Loan
or in such other manner or to such location or address as the Administrative
Agent may designate from time to time, in every case without setoff,
counterclaim or other deduction of any nature, and, without limiting the
foregoing, free and clear of, and without any deduction for, any and all present
and future taxes, levies, imposts, deductions, charges, withholdings, and other
liabilities, all as may be more fully provided in the Credit Agreement.
This Note is one of the "Notes" referred to in, and is subject to the
terms and provisions and entitled to the benefits and security of, the Credit
Agreement. This Note is secured as provided in the Credit Agreement, the Vessel
Mortgages and the Guaranties. Terms not defined in this Note but defined in the
Credit Agreement shall have the same meanings when used herein. In the event of
a conflict between this Note and the Credit Agreement, the terms of the Credit
Agreement will control.
Time is of the essence in connection with Borrower's obligations under
this Note. No course of dealing between the Borrower and the Agents or the
Holder or any delay on the part of the Agents or the Holder in exercising any
rights hereunder or with respect to any collateral or sources of repayment
securing the obligations represented by this Note, any of the other Notes, the
Credit Agreement or any of the other Loan Documents shall operate as a waiver of
any right of the Agents or the Holder.
All parties hereto and guarantors hereof waive presentment for payment,
demand, protest and notice of protest and non-payment hereof, and hereby consent
that any and all securities, property or other collateral, if any, held by the
Holder or the Agents at any time as security for this Note may be exchanged,
released or surrendered and that the time of payment of this Note may be
extended, all in the sole discretion of the Holder and without affecting in any
manner the liability of such parties or such guarantors.
All Advances made by the Holder, the rates of interest applicable
thereto, and repayments of principal thereof shall be recorded by the
Administrative Agent and prior to any transfer hereof, appropriate notations to
evidence the foregoing information with respect to each such Advance then
outstanding shall be endorsed by the Administrative Agent in its records;
provided that the failure of the Administrative Agent to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
In all respects, including all matters of construction, validity and
performance, this Note and the Obligations shall be governed by, and construed
and enforced in accordance with, the laws of the Commonwealth of Pennsylvania
applicable to contracts made and performed in such state, without reference to
rules of choice of law or conflicts of laws, and any applicable laws of the
United States of America. Borrower hereby consents and agrees that the state or
federal courts having jurisdiction in Xxxxxxxxxx County, Pennsylvania shall have
exclusive jurisdiction to hear and determine any claims or disputes between the
Borrower or the Holder or the Agents pertaining to this Note, the Credit
Agreement, any of the Loan Documents or the Obligations, or any transactions
arising out of or relating to the foregoing, provided, that nothing in this Note
shall be deemed or operate to preclude Agents or the Holder from bringing suit
or taking other legal action in any other jurisdiction to realize on any
collateral or any other security for the Obligations, or to enforce a judgment
or other court order. Borrower expressly submits and consents in advance to such
jurisdiction in any action or suit commenced in any such court, and Borrower
hereby waives any objection which it may have based upon lack of personal
jurisdiction, improper venue or forum non conveniens and hereby consents to the
granting of such legal or equitable relief as is deemed appropriate by such
court. Borrower hereby waives personal service of the summons, complaint and
other process issued in any such action or suit and agrees that service of such
summons, complaints and other process may be made by registered or certified
mail addressed to Borrower at the address of Borrower provided for notices under
this Note, and that service so made shall be deemed completed upon the earlier
of actual receipt thereof or three (3) days after deposit in the U.S. mails,
properly addressed with postage prepaid.
Because disputes arising in connection with complex financial
transactions are most quickly and economically resolved by an experienced and
expert person and the parties wish applicable state and federal laws to apply
(rather than arbitration rules), Borrower and the Holder desire that disputes
arising hereunder or relating hereto be resolved by a judge applying such
applicable laws. Therefore, to achieve the best combination of the benefits of
the judicial system and/or arbitration, Borrower and the Holder hereby mutually
waive, as a separate covenant, all rights to trial by jury in any action, suit
or proceeding brought to resolve any dispute, whether sounding in contract,
tort, or otherwise, arising out of, connected with, related to, or incidental to
the relationship established in connection with this Note, the Credit Agreement,
any of the other Loan Documents, the Obligations or the transactions related
hereto or thereto.
This Note may be assigned by the Holder as set forth in the Credit
Agreement.
IF AN EVENT OF DEFAULT SHALL OCCUR AND BE CONTINUING, BORROWER HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ATTORNEYS OR THE
PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF
PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR THE BORROWER IN ANY COURT OR COURTS IN
AN APPROPRIATE ACTION THERE BROUGHT OR TO BE BROUGHT AGAINST THE BORROWER AT THE
SUIT OF THE ADMINISTRATIVE AGENT AND/OR THE COLLATERAL AGENT OR ANY SUCCESSOR TO
ITS OR THEIR INTEREST UNDER THIS AGREEMENT, AND THEREIN TO CONFESS JUDGMENT
AGAINST THE BORROWER FOR ALL SUMS OWING HEREUNDER OR UNDER ANY OR ALL NOTES OR
OTHERWISE IN CONNECTION WITH EITHER OF THE LOANS, ANY ONE OR MORE ADVANCES, OR
ANY ONE OR MORE LETTERS OF CREDIT, OR ANY OF THE VESSELS OR OTHER COLLATERAL,
TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S FEE FOR COLLECTION; AND FOR SO
DOING THIS NOTE OR A VERIFIED COPY HEREOF SHALL BE A SUFFICIENT WARRANT. THIS
WARRANT OF ATTORNEY SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, BUT JUDGMENT
MAY BE CONFESSED REPEATEDLY SO LONG AS ANY SUCH OBLIGATIONS REMAIN OWING. THIS
WARRANT OF ATTORNEY TO CONFESS JUDGMENT IS NOT INTENDED TO BE A POWER OF
ATTORNEY WITHIN THE MEANING OF 20 PA.C.S. SECTION 5901 ET SEQ.
IN WITNESS WHEREOF, the undersigned Borrower has caused the due
execution hereof, under seal, as of the date first written above:
Borrower:
_______________________
Attest: a _________ corporation
___________________ By:___________________
Name:
Exhibit E
[Form of Quarterly Compliance Certificate]
To: Mellon Bank, N.A., as Administrative Agent Dated as of: __________
Re: Credit Agreement dated as of November ___, 2001 (the "Credit Agreement")
Maritrans Inc. ("Maritrans") and other Borrowers Signatory thereto
Ladies and Gentlemen:
This Quarterly Compliance Certificate is being delivered to
you pursuant to the provisions of Section 6.1(a)(iii) of the Credit Agreement
with respect to the fiscal [year][quarter] of Maritrans ending on
_______________. All terms used herein shall have the respective meanings
ascribed thereto in the Credit Agreement.
1. As of the date hereof [no Event of Default or Potential Default has
occurred and is continuing.][the following Event[s] of Default or Potential
Default[s] has/have occurred and is/are continuing:]
[Specify in detail the nature and period of existence thereof and any action
with respect thereto taken or contemplated to be taken by the Borrowers.]
2. Set forth below in reasonable detail are the information and
calculations necessary to establish compliance with the provisions of Section
6.2(j) of the Credit Agreement (dollars in thousands).
(i) Interest Coverage Ratio
(ii) Fixed Charge Coverage Ratio
(iii) Total Liabilities/Tangible Net Worth Ratio
(iv) Debt/EBITDA Ratio
(v) Additional Debt
3. Each signer is an Authorized Financial Officer of the respective
Borrower, and has personally reviewed the Credit Agreement. This certificate is
based on an examination made by or under the supervision of the signers
sufficient to assure that this certificate is accurate.
MARITRANS INC. MARITRANS 400 CO.
MARITRANS LIBERTY CO.
MARITRANS 192 CO.
By:_______________________________________ MARITRANS DILIGENCE CO.
Name: ____________________________________ MARITRANS INTEGRITY CO.
Title:____________________________________ MARITRANS 244 CO.
MARITRANS 300 CO.
MARITRANS 252 CO.
By: ______________________________
Name:_____________________________
Title:____________________________
EXHIBIT F
[Form of Notice of Conversion/Continuation]
Dated as of:_______________
Mellon Bank, N.A., as Administrative Agent
Mellon Gateway Center
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Re: Credit Agreement Dated November __, 2001
Ladies and Gentlemen:
This Notice of Conversion/Continuation (the "Notice") is delivered to
you under Section 2.4(g) of the Credit Agreement dated as of November ___, 2001
(as amended, restated or otherwise modified, the "Credit Agreement"), by and
among Maritrans Inc., a Delaware corporation, and the other Borrowers signatory
thereto, Mellon Bank, N.A., as Administrative Agent, Collateral Agent and
Lender, and the other Lenders signatory thereto.
1. This Notice is submitted for the purpose of. (Check one and
complete applicable information in accordance with the Credit Agreement.)
o Converting all or a portion of a Base Rate Portion into a LIBOR Rate
Portion
(a) The aggregate outstanding principal balance of such Loan
is $________.
(b) The principal amount of such Loan to be converted
is $_________ .
(c) The requested effective date of the conversion of such
Loan is $_________.
(d) The requested Interest Period applicable to the converted
Loan is $_________.
o Converting a portion of a LIBOR Rate Portion into a Base Rate Portion
(a) The aggregate outstanding principal balance of such Loan
is $_________.
(b) The last day of the current Interest Period for such
Loan is $__________.
(c) The principal amount of such Loan to be converted
is $_________.
(d) The requested effective date of the conversion of such
Loan is $__________.
o Continuing all or a portion of a LIBOR Rate Portion as a LIBOR
Rate Portion
(a) The aggregate outstanding principal balance of such Loan
is $_________.
(b) The last day of the current Interest Period for such Loan
is $_________.
(c) The principal amount of such Loan to be continued
is $_________.
(d) The requested effective date of the continuation of such
Loan is $__________.
(e) The requested Interest Period applicable to the continued
Loan is $__________.
2. The principal amount of all Loans and Letter of Credit Obligations
outstanding as of the date hereof does not exceed the maximum amount permitted
to be outstanding pursuant to the terms of the Credit Agreement.
3. All of the conditions applicable to the conversion or continuation
of the Loan requested herein as set forth in the Credit Agreement have been
satisfied or waived as of the date hereof and will remain satisfied or waived to
the date of such Loan.
4. Capitalized terms used herein and not defined herein shall
have the meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Conversion/Continuation this _________ day of ________________, ________.
MARITRANS INC.
By:
------------------------
Name:
----------------------
Title:
---------------------
MARITRANS 400 CO.
MARITRANS LIBERTY CO.
MARITRANS 192 CO.
MARITRANS DILIGENCE CO.
MARITRANS INTEGRITY CO.
MARITRANS 300 CO.
MARITRANS 244 CO.
MARITRANS 252 CO.
By:
------------------------
Name:
----------------------
Title:
---------------------
Schedule A
Percentage Interest/Separate Commitment
Lender Percentage Interest Separate Commitment
------ ------------------- ------------------
Mellon Bank, N.A. 35.29412% $30,000,000.00
Fleet National Bank 29.41176% $25,000,000.00
SunTrust Bank 17.64706% $15,000,000.00
Hibernia National Bank 17.64706% $15,000,000.00
--------- --------------
Totals 100% $85,000,000.00
Schedule 5.1
Entity Type and Organization Number
Organizational
Organizational Number
Borrower Entity Type Jurisdiction 2305080
-------- ----------- --------------- ---------------
Maritrans Inc. Corporation Delaware
Maritrans 192 Co. Corporation Nevada C 28083-2001
Maritrans 244 Co. Corporation Nevada C 28082-2001
Maritrans 252 Co. Corporation Nevada C 28117-2001
Maritrans 300 Co. Corporation Nevada C 28114-2001
Maritrans 400 Co. Corporation Nevada C 28112-2001
Maritrans Diligence Co. Corporation Nevada C 28123-2001
Maritrans Integrity Co. Corporation Nevada C 28118-2001
Maritrans Liberty Co. Corporation Nevada C 28137-2001
Schedule 5.2
Legal Name
Name Employer Identification Number
---- ------------------------------
Maritrans Inc. 00-0000000
Maritrans 192 Co. 00-0000000
Maritrans 244 Co. 00-0000000
Maritrans 252 Co. 00-0000000
Maritrans 300 Co. 00-0000000
Maritrans 400 Co. 00-0000000
Maritrans Diligence Co. 00-0000000
Maritrans Integrity Co. 00-0000000
Maritrans Liberty Co. 00-0000000
Schedule 5.3
Subsidiaries
MARITRANS ORGANIZATIONAL CHART
[GRAPHIC OMMITTED]
Schedule 5.4
Material Adverse Change
None.
Schedule 5.7
Litigation
x. Xxxxx Act Suits. Note: All of the following Xxxxx Act cases are
covered by Protection and Indemnity Insurance:
(1) Xxxxxx v. Maritrans Operating Partners. Barge slip and fall. Civil
action is stayed pending federal prosecution against plaintiff for
perjury/fraud.
(2) Xxxxxx v. Maritrans Operating Partners. Crewman slipped and fell on
barge in winter. No report of injury. Continued to work for 6 months,
then left Maritrans to take a job with a mining company in Idaho; in
pre-employment questionnaire, denied any back problems. Worked for them
for short time, laid off, then goes to doctor claiming he incurred his
back injury on the vessel. He got surgery in Idaho, which had
complications.
- - $1.4 million judgment against Maritrans. Decision
on appeal
(3) Xxxxxxxxx v. Maritrans Operating Partners. Slip and fall on dock
in 1992.
- - Case was dismissed by judge pending readiness for trial.
Haven't heard from plaintiff's counsel in two years.
(4) Major v. Maritrans
- - Plaintiff injured when radio fell into tank and struck
him. Discovery is complete. Awaiting a trial date.
(5) Lamot v. Maritrans - Xxxxxx injured on terminal dock while handling
lines. We have filed a warranty action against IMTT. Discovery is
complete; awaiting trial date
(6) Howell v. Maritrans. Received notice that Xxxxxx has hired an
attorney to prosecute a Xxxxx Act action against us for back problem.
Admitted to Maritrans personnel that he had injured his back working
construction before being hired by Maritrans.
(7) Xxxxxxx v. Maritrans. Slip and fall. Suit just filed
(8) Xxxxxxxx v. Maritrans. Plaintiff injured on CITIES (now Maritrans
252) June 23, 1998. Discovery is ongoing
(9) Xxxxxxxx v. Maritrans. Alleged knee injury. No suit filed as yet.
(10) Xxxxxx v. Maritrans. Smoke inhalation claim. No suit filed yet
b. Asbestos cases. Approximately 70 cases have been filed against
Maritrans. Substantial uncertainty exists regarding how these claims will be
handled by P&I, and the possibility of coverage disputes at some point in the
future exists. In virtually all cases, asbestos manufacturers are also
defendants; also, seamen have sailed for numerous vessel owners, and so there
are numerous vessel-owning defendants. In addition to the foregoing cases, which
were filed as part of a massive multi-district suit presently pending in the
Eastern District of Pennsylvania, the following individual suits are separately
proceeding against Maritrans:
(1) Xxxxxxx x. XxXxxxx Contracting. asbestosis claim; not a part of the
Jacques group of cases.
(2) Wactor v. Maritrans - - asbestosis claim; not a part of the Jacques
group of cases. No action in a year.
Other - Defensive
(1) Penn Maritime v. Maritrans. Penn Maritime filed suit seeking a
Declaratory Judgment that Maritrans' double-hull patent is invalid.
Maritrans is attempting to settle this matter; if we are unsuccessful,
we will counterclaim against Penn Maritime for patent infringement,
tortuous interference with contract, and misappropriation of Maritrans'
trade secrets. If litigation proceeds, Maritrans will also join its
naval architect for the double-hull work, as he sold our trade secrets
to Penn Maritime in breach of a confidentiality and exclusive services
agreement.
(2) OCEAN 255 - Tampa Oil Spill Litigation. Collision in Tampa in 1993.
Covered by insurance.
- - Arbitration between shipowners has been completed
- - Class Action suit in state court is presently on appeal
(3) K-Sea transportation v. Maritrans. Dispute over sale of OCEAN 90 to
K-Sea in December, 1999. K-Sea claims $1.5 million in damages for
breach of warranty as to vessel's condition. Discovery is ongoing
d. Other - Affirmative
(1) Maritrans v. United States (Takings case). Maritrans sued the United
States in 1996 alleging that the double hull requirement of the Oil
Pollution Act of 1990 ("OPA") which requires retirement of Maritrans'
fleet of single-hulled barges, is a "taking" under the fifth amendment
to the U.S. Constitution. Maritrans is seeking a total of up to $200
million in compensation for this taking. A trial was held in July 1997
on the preliminary issue of whether Maritrans had a cognizable property
interest that could be subject to taking. The Court ruled in favor of
Maritrans.
In April 1999, the United States Court of Federal Claims ("the Court")
ruled that the case was "ripe" only with respect to vessels that OPA
had forced out of service, which would include vessels that Maritrans
had sold, scrapped, or rebuilt. A trial was held in January 2001, with
respect to eight of the Company's barges that are "ripe". Maritrans
alleges that the value of these assets, for which compensation is
currently due, is approximately $73 million. The trial concluded on
February 13, 2001. A decision is expected from the Court by the end of
2001. If Maritrans prevails, claims for other of the Company's barges
will be the subject of future legal proceedings as the vessels are
forced from service by OPA.
(2) Maritrans v. United States, et al. (OCEAN 211 grounding in
Pascagoula, May 1998).
- - Suit filed against United States for damages to our barge,
based on inaccurate chart and government's failure to warn of
shoaling. Repairs were covered by hull insurance.
- - Govt filed Summary Judgment Motion and we are awaiting a
decision.
(3) Maritrans v. MIV SENSATION
- - OCEAN 250 was run aground in Tampa by cruise ship
SENSATION, which cut off the barge. Repairs were covered by
hull insurance.
- - Discovery ongoing
(4) Maritrans v. Township of West Deptford. As part of our efforts to
thwart the 45 foot channel, Maritrans donated $500,000 to Township of
West Deptford in exchange for their agreement not to accept any dredge
spoils within the Township. They subsequently accepted a million dollar
"gift" from DRPA to move dredge spoils from the National Park dredge
spoil disposal area to use as fill for a development project. We
demanded return of the money
- - discovery has commenced; March 11 trial date
Schedule 5.8
Existing Debt
Creditor Debt as of September 30, 2001
-------- -----------------------------
General Electric Capital Corporation $4,605,533
Coastal Tug and Barge Inc. $3,044,167
Schedule 5.9
List of Vessels
Owner Vessel
----- ------
Maritrans 192 Co. Maritrans 000
Xxxxxxxxx 000 Xx. Xxxxxxxxx 000
Xxxxxxxxx 000 Xx. Xxxxxxxxx 000
Xxxxxxxxx 000 Xx. Xxxxxxxxx 300
Maritrans 400 Co. Maritrans 400
Maritrans Diligence Co. Diligence
Maritrans Integrity Co. Integrity
Maritrans Liberty Co. Liberty
Schedule 5.11
Taxes
None.
Schedule 5.16
Disclosure of Other Facts
None.
Schedule 5.21
Liens
None.
Schedule 5.22
Locations
Entity Books and Records Office UCC Location Vessel Hailing Port
------ ------------------------ ------------ -------------------
Maritrans Inc. Two Harbour Place Delaware n/a
000 Xxxxxxx Xxx Xxxxxx,00xx Xxxxx
Xxxxx, XX 00000
Maritrans 192 Co. c/o Maritrans Business Services Inc. Nevada Wilmington, DE
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx,00xx Xxxxx
Xxxxx, XX 00000
Maritrans 244 Co. c/o Maritrans Business Services Inc. Nevada Wilmington, DE
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Maritrans 252 Co. c/o Maritrans Business Services Inc. Nevada Wilmington, DE
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Maritrans 300 Co. c/o Maritrans Business Services Inc. Nevada Wilmington, DE
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Maritrans 400 Co. c/o Maritrans Business Services Inc. Nevada Wilmington, DE
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Maritrans Diligence Co. c/o Maritrans Business Services Inc. Nevada Wilmington, DE
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Maritrans Integrity Co. c/o Maritrans Business Services Inc. Nevada Wilmington, DE
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Maritrans Liberty Co. c/o Maritrans Business Services Inc. Nevada Wilmington, DE
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxx, XX 00000
Schedule 5.26
Intellectual Property
MARITRANS
Patent Status Report
October 31, 2001
-----------------------------------------------------------------------------------------------------------------------------------
Docket Title Country PatentNo./ Serial No./ Assignee Status
Issue Date Filing Date
-----------------------------------------------------------------------------------------------------------------------------------
MRTR- Method of Double USA 60/112,394 Provisional
0000 Xxxx Rebuild 12/15/98
-----------------------------------------------------------------------------------------------------------------------------------
MTTR- System And USA 09/484,768 Pending
0016 Method of 01/18/00
Predicting
Transportation
Rates And The
Demand For
Transportation
Assets
-----------------------------------------------------------------------------------------------------------------------------------
MRTR- Rebuilt Double USA 6170420 09/289,031 Maritrans Inc. Issued
0000 Xxxx Vessel and 01/19/01 04/09/99
Method of
Rebuilding a Single
Hull Vessel into a
Double Hull Vessel
-----------------------------------------------------------------------------------------------------------------------------------
MRTR- Combination USA Closed as per
client's
0018 Schuttle Trackor instructions
Tanker
-----------------------------------------------------------------------------------------------------------------------------------
MRTR- Rebuilt Double USA 09/689,420 Maritrans Inc. Notice of Allowance
0000 Xxxx Vessel and 10/12/00 Received on
08/21/01
Method of Issue Fee Due
Rebuilding a Single
Hull Vessel into a
Double Hull Vessel
-----------------------------------------------------------------------------------------------------------------------------------
MRTR- System And USA Not Yet
0021 Method For Assigned
Internally Fitting a
New Inner Hull to
an Existing Outer
Hull to Form a
Rebuilt Double
Hull Vessel
-----------------------------------------------------------------------------------------------------------------------------------
MARITRANS
Trademark Status Report
October 30, 2001
------------------------------------------------------------------------------------------------------------------------------------
Docket Title Country Reg. No./ Serial No./ Goods/Classes Owner Status
Reg. Date Filing Date
------------------------------------------------------------------------------------------------------------------------------------
MRTR- M AND DESIGN USA 1,596,831 73/830,614 International Class 39: Maritrans Operating Registered; Renewal fee
0001 [GRAPHIC OMITTED] 5/15/90 10/11/89 Marine transportation Partners LP paid 5/12/00; Next
services, namely, the Renewal due 5/15/10
transport of goods by
ship and barge.
------------------------------------------------------------------------------------------------------------------------------------
MRTR- MARITRANS USA 1,596,832 73/830,615 International Class 39: Maritrans Operating Registered; Renewal fee
0002 5/15/90 10/11/89 Marine transportation Partners LP paid 5/12/00; Next
services, namely, the Renewal due 5/15/10
transport of goods by
ship and barge
------------------------------------------------------------------------------------------------------------------------------------
MRTR- M MARITRANS USA 1,596,833 73/830,616 International Class 39: Maritrans Operating Registered; Renewal fee
0003 AND DESIGN 5/15/90 10/11/89 Marine transportation Partners LP paid 5/12/00; Next
services, namely, the Renewal due 5/15/10
transport of goods by
ship and barge
[GRAPHIC OMITTED]
------------------------------------------------------------------------------------------------------------------------------------
MARITRANS
Trademark Status Report
October 30, 2001
------------------------------------------------------------------------------------------------------------------------------------
Docket Title Country Reg. No./ Serial No./ Goods/Classes Owner Status
Reg. Date Filing Date
------------------------------------------------------------------------------------------------------------------------------------
MRTR- MQ (stylized) USA 1,702,164 74/187,053 International Maritrans Registered; Section 8&15
0004 [OBJECT OMITTED] 07/21/92 07/22/91 Class 39: Operating Affidavits filed 5/5/9
Marine Partners LP Renewal fee due 7/21/0
transportation
services,
namely, the
transport of
goods by
ship and barge
------------------------------------------------------------------------------------------------------------------------------------
MRTR- QUALITY USA Maritrans Operating Application never filed;
0005 SYMBOL WITH Partners LP file closed on 11/17/94
MARITRANS and sent to storage on
1/13/95; box no.
12611093
------------------------------------------------------------------------------------------------------------------------------------
MRTR- QNN USA 1,800,268 74/187,746 International Class 41: Maritrans Operating Closed on 11/2/99;
0006 10/19/93 07/23/91 educational services; Parnters L.P. Section 8&15 Affidavits
namely, conducting were not filed because the
seminars, classes, client indicated that the
conferences and work xxxx was no longer in
shops with related use.
newsletters directed
toward improving the
quality of work
performance.
------------------------------------------------------------------------------------------------------------------------------------
MARITRANS
Trademark Status Report
October 30, 2001
------------------------------------------------------------------------------------------------------------------------------------
Docket Title Country Reg. No./ Serial No./ Goods/Classes Owner Status
Reg. Date Filing Date
------------------------------------------------------------------------------------------------------------------------------------
MRTR- QUALITY NEWS USA 73/187,112 International Class 41: Maritrans Operating Per client's instructions
0007 NETWORK 07/22/91 educational services; Partners, L.P. of 2/8/93, application
namely, conducting abandoned. File sent to
seminars, classes, storage on 8/9/95; box
conferences and work 16973652
shops with related
newsletters directed
toward improving the
quality of work
performance
------------------------------------------------------------------------------------------------------------------------------------
MRTR- MARIQUEST USA Maritrans Operating File closed on 05/01/00;
0009 Partners, LP application never filed.
------------------------------------------------------------------------------------------------------------------------------------
MRTR- NOT ONE DROP USA Maritrans Operating File closed on 05/17/96;
0010 Partners, LP application never filed.
------------------------------------------------------------------------------------------------------------------------------------
MRTR- MSI USA Maritrans Operating File closed on 06/25/97;
0012 Partners, LP application never filed.
------------------------------------------------------------------------------------------------------------------------------------
MRTR- MANAGEMENT USA 2,250,939 75/347,917 International Class 35: Maritrans Operating Registered; Section 8&15
0013 SERVICES, INC. 06/08/99 08/14/97 business consultation Partners, LP Affidavits due 06/08/05;
AND DESIGN services, namely, Renewal fee due
providing supply chain 06/08/09
simulation and logistics
optimization for
industries
------------------------------------------------------------------------------------------------------------------------------------
MARITRANS
Trademark Status Report
October 30, 2001
------------------------------------------------------------------------------------------------------------------------------------
Docket Title Country Reg. No./ Serial No./ Goods/Classes Owner Status
Reg. Date Filing Date
------------------------------------------------------------------------------------------------------------------------------------
MRTR- VIRTUAL USA Maritrans Operating Application never filed
0014 BUSINESS Partners, LP
ENVIRONMENT
------------------------------------------------------------------------------------------------------------------------------------
MMSI- XXXXXX USA Maritrans 10/21/99 file closed per
0002 Management client's instructions;
Services application never filed.
------------------------------------------------------------------------------------------------------------------------------------
MMSI- GULFSIM USA Maritrans 10/21/99 file closed per
0003 Management client's instructions;
Services application never filed.
------------------------------------------------------------------------------------------------------------------------------------
MMSI- KNOWHOW USA Maritrans 10/21/99 file closed per
0004 Management client's instructions;
Services application never filed.
------------------------------------------------------------------------------------------------------------------------------------
MMSI- TANKSIM USA Maritrans 10/21/99 file closed per
0005 Management client's instructions;
Services application never filed.
------------------------------------------------------------------------------------------------------------------------------------
MMSI- TANKSSIM USA Maritrans 10/21/99 file closed per
0006 Management client's instructions;
Services application never filed.
------------------------------------------------------------------------------------------------------------------------------------
MARITRANS
Trademark Status Report
October 30, 2001
------------------------------------------------------------------------------------------------------------------------------------
Docket Title Country Reg. No./ Serial No./ Goods/Classes Owner Status
Reg. Date Filing Date
------------------------------------------------------------------------------------------------------------------------------------
MMSI- IN RE: Maritrans, Inc. 5/18/01 Settlement
0007 MARITRANS agreement executed with
SERVICE LTD. Maritrans Services Ltd.
(Correspondence agreeing that they will
File re: domain change their name to
name) and that they will not
renew XXXXXXXXX.XX
on 11/10/01 and will not
use XXXXXXXXX.XXX
and they have agreed to
transfer
XXXXXXXXX.XXX to
Maritrans, Inc.
------------------------------------------------------------------------------------------------------------------------------------
Schedule 6.4(a)(i)
Insurance
Vessel Minimum Insurance Amount
Maritrans 192 $18,000,000
Maritrans 244 $24,500,000
Maritrans 252 $26,600,000*
Maritrans 300 $22,700,000
Maritrans 400 $30,000,000
Diligence $22,000,000
Integrity $22,000,000
Liberty $6,000,000
* Amount effective upon completion of the double hull rebuild of the
Maritrans 252, scheduled for December 2001. The vessel is currently covered
by Builders Risk Insurance.
