EXHIBIT 10.1
[EXECUTION]
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AMENDED AND RESTATED LOAN AGREEMENT
DATED AS OF FEBRUARY 11, 2005
AMONG
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS THE LENDERS,
BANK OF AMERICA, N. A.
AS THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT,
UBS SECURITIES LLC
AS THE SYNDICATION AGENT
THE CIT GROUP/BUSINESS CREDIT, INC.
XXXXX FARGO FOOTHILL, LLC,
XXXXXXX XXXXX CAPITAL,
(A DIVISION OF XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC.)
AS THE CO-DOCUMENTATION AGENTS
BANC OF AMERICA SECURITIES LLC
AND
UBS SECURITIES LLC
AS THE CO-LEAD ARRANGERS AND JOINT BOOK RUNNERS
AND
AMERICAN COMMERCIAL BARGE LINE LLC
AMERICAN COMMERCIAL LINES LLC
AMERICAN COMMERCIAL TERMINALS LLC
HOUSTON FLEET LLC
JEFFBOAT LLC
LOUISIANA DOCK COMPANY LLC
AS BORROWERS
AND
THE OTHER OBLIGATED PARTY SIGNATORIES HERETO
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS................................................................ 2
SECTION 1.01 Defined Terms....................................................... 2
SECTION 1.02 Terms Generally..................................................... 34
SECTION 1.03 Accounting Terms; GAAP.............................................. 34
ARTICLE II THE LOANS................................................................. 34
SECTION 2.01 Loans............................................................... 34
SECTION 2.02 Continuation and Conversion Elections............................... 38
SECTION 2.03 Letters of Credit................................................... 39
SECTION 2.04 Bank Products....................................................... 43
SECTION 2.05 Mandatory Prepayments............................................... 43
SECTION 2.06 Interest............................................................ 43
SECTION 2.07 Use of Proceeds..................................................... 44
SECTION 2.08 Increased Costs..................................................... 44
SECTION 2.09 Break Funding Payments.............................................. 45
SECTION 2.10 Taxes............................................................... 46
SECTION 2.11 Payments Generally; Pro Rata Treatment; Sharing of Set-offs......... 47
SECTION 2.12 Mitigation Obligations; Replacement of Lenders...................... 50
SECTION 2.13 Fees................................................................ 51
ARTICLE III REPRESENTATIONS AND WARRANTIES........................................... 52
SECTION 3.01 Organization; Powers................................................ 52
SECTION 3.02 Authorization....................................................... 52
SECTION 3.03 Enforceability...................................................... 52
SECTION 3.04 Governmental Approvals.............................................. 53
SECTION 3.05 Financial Statements................................................ 53
SECTION 3.06 No Material Adverse Change.......................................... 53
SECTION 3.07 Title to Properties; Possession Under Leases........................ 53
SECTION 3.08 Subsidiaries........................................................ 54
SECTION 3.09 Litigation; Compliance with Laws.................................... 54
SECTION 3.10 Agreements.......................................................... 54
SECTION 3.11 Federal Reserve Regulations......................................... 54
SECTION 3.12 Investment Company Act; Public Utility Holding Company Act.......... 55
SECTION 3.13 Tax Returns......................................................... 55
SECTION 3.14 No Material Misstatements........................................... 55
SECTION 3.15 ERISA............................................................... 55
SECTION 3.16 Environmental Matters............................................... 55
(i)
SECTION 3.17 Insurance....................................................................... 56
SECTION 3.18 Security Documents.............................................................. 56
SECTION 3.19 Location of Real Property, Drydocks and Leased Premises and List of Vessels..... 57
SECTION 3.20 Labor Matters................................................................... 57
SECTION 3.21 Solvency........................................................................ 57
SECTION 3.22 Bank Accounts................................................................... 58
SECTION 3.23 Common Enterprise............................................................... 58
ARTICLE IV CONDITIONS OF LENDING................................................................. 58
SECTION 4.01 Conditions Precedent to Closing................................................. 58
SECTION 4.02 Conditions Precedent to Each Loan............................................... 60
ARTICLE V AFFIRMATIVE COVENANTS.................................................................. 61
SECTION 5.01 Existence; Businesses and Properties............................................ 61
SECTION 5.02 Insurance....................................................................... 62
SECTION 5.03 Obligations and Taxes........................................................... 63
SECTION 5.04 Financial Statements, Reports, etc.............................................. 63
SECTION 5.05 Litigation and Other Notices.................................................... 65
SECTION 5.06 Maintaining Records; Access to Properties and Inspections....................... 65
SECTION 5.07 Compliance with Environmental Laws.............................................. 66
SECTION 5.08 Preparation of Environmental Reports............................................ 66
SECTION 5.09 Consummation of Plan of Reorganization.......................................... 66
SECTION 5.10 Further Assurances.............................................................. 66
ARTICLE VI NEGATIVE COVENANTS.................................................................... 67
SECTION 6.01 Indebtedness.................................................................... 67
SECTION 6.02 Liens........................................................................... 68
SECTION 6.03 Investments, Loans and Advances................................................. 69
SECTION 6.04 Mergers, Consolidations, Sales of Assets and Acquisitions....................... 70
SECTION 6.05 Dividends and Distributions; Restrictions on Ability to Pay Dividends........... 71
SECTION 6.06 Transactions with Affiliates.................................................... 72
SECTION 6.07 Business of Obligated Parties and Subsidiaries.................................. 72
SECTION 6.08 Other Indebtedness and Agreements............................................... 72
SECTION 6.09 Consolidated EBITDA............................................................. 73
SECTION 6.10 Consolidated Fixed Charge Coverage Ratio........................................ 73
SECTION 6.11 Consolidated Senior Leverage Ratio.............................................. 73
ARTICLE VII EVENTS OF DEFAULT.................................................................... 74
SECTION 7.01 Events of Default............................................................... 74
SECTION 7.02 Remedies........................................................................ 76
ARTICLE VIII The Agent........................................................................... 79
(ii)
SECTION 8.01 Appointment and Authorization................................................... 79
SECTION 8.02 Delegation of Duties............................................................ 80
SECTION 8.03 Liability of the Agent.......................................................... 80
SECTION 8.04 Reliance by the Agent........................................................... 81
SECTION 8.05 Notice of Default............................................................... 81
SECTION 8.06 Credit Decision................................................................. 82
SECTION 8.07 Indemnification................................................................. 82
SECTION 8.08 The Agent in its Individual Capacity............................................ 83
SECTION 8.09 Successor Agent................................................................. 83
SECTION 8.10 Collateral Matters.............................................................. 84
SECTION 8.11 Restrictions on Actions by Lenders; Sharing of Payments......................... 85
SECTION 8.12 Agency for Perfection........................................................... 85
SECTION 8.13 Payments by Agent to the Lenders................................................ 86
SECTION 8.14 Settlement...................................................................... 86
SECTION 8.15 Letters of Credit; Intra-Lender Issues.......................................... 89
SECTION 8.16 Concerning the Collateral and the Related Loan Documents........................ 91
SECTION 8.17 Field Audit and Examination Reports; Disclaimer by Lenders...................... 91
SECTION 8.18 Relation Among the Lenders...................................................... 92
SECTION 8.19 Syndication Agent............................................................... 92
SECTION 8.20 Co-Documentation Agents......................................................... 92
ARTICLE IX Miscellaneous......................................................................... 93
SECTION 9.01 [RESERVED]...................................................................... 93
SECTION 9.02 Notices......................................................................... 93
SECTION 9.03 Waivers; Amendments............................................................. 95
SECTION 9.04 Expenses; Indemnity; Damage Waiver.............................................. 97
SECTION 9.05 Successors and Assigns.......................................................... 99
SECTION 9.06 Survival........................................................................ 102
SECTION 9.07 Counterparts; Integration; Effectiveness........................................ 102
SECTION 9.08 Severability.................................................................... 103
SECTION 9.09 Right of Setoff................................................................. 103
SECTION 9.10 Governing Law; Jurisdiction; Consent to Service of Process...................... 103
SECTION 9.11 WAIVER OF JURY TRIAL............................................................ 104
SECTION 9.12 Headings........................................................................ 104
SECTION 9.13 Confidentiality................................................................. 104
SECTION 9.14 Interest Rate Limitation........................................................ 105
SECTION 9.15 USA PATRIOT ACT................................................................. 105
SECTION 9.16 Limitation of Liability......................................................... 105
SECTION 9.17 Final Agreement................................................................. 105
SECTION 9.18 Joint and Several Liability..................................................... 106
SECTION 9.19 Contribution and Indemnification among the Borrowers............................ 107
SECTION 9.20 Agency of ACL for the Obligated Parties......................................... 107
SECTION 9.21 Additional Borrowers and Guarantors............................................. 108
SECTION 9.22 Express Waivers By Obligated Parties In Respect of Cross Guaranties and Cross
Collateralization............................................................... 108
(iii)
ARTICLE X TERM AND TERMINATION................................................................... 109
SECTION 10.01 Term............................................................................ 109
SECTION 10.02 Effect of Termination........................................................... 110
ARTICLE XI ACKNOWLEDGMENT AD RESTATEMENT......................................................... 110
SECTION 11.01 Existing Obligations............................................................ 110
SECTION 11.02 Acknowledgment of Security Interest............................................. 110
SECTION 11.03 Existing Agreements............................................................. 110
SECTION 11.04 Restatement..................................................................... 111
(iv)
SCHEDULES:
Schedule 1.1A Commitments
Schedule 1.01 Guarantors
Schedule 3.07(a) Vessels Not Documented Under United States Law
Schedule 3.07(b) Condemnation Proceedings
Schedule 3.07(c) Contractual Rights Regarding Mortgaged Property
Schedule 3.08 Subsidiaries/Schedule of Equity Interests of Obligated Parties
Schedule 3.09 Litigation and Certificates of Occupancy
Schedule 3.15 ERISA
Schedule 3.16 Environmental Matters
Schedule 3.17 Insurance
Schedule 3.19(a) Owned Real Properties and Drydocks
Schedule 3.19(b) Leased Real Properties and Drydocks
Schedule 3.19(c) Towboats, Barges and Other Vessels
Schedule 3.20 Labor Matters
Schedule 3.22 Bank Accounts
Schedule 6.01 Indebtedness Outstanding as of the Closing Date
Schedule 6.02 Existing Liens
Schedule 6.05(b) Certain Agreements
Schedule 6.06 Transactions with Affiliates
EXHIBITS:
Exhibit A Form of Assignment and Acceptance
Exhibit B Opinions of Borrower's Counsel
Exhibit C Amended and Restated Security Agreement
Exhibit C-1 Fleet Mortgages
Exhibit D Guaranty Agreement
Exhibit E Pledge Agreement
Exhibit F Form of Revolving Loan Note
Exhibit G Form of Notice of Conversion/Continuation
-i-
This AMENDED AND RESTATED LOAN AGREEMENT, dated as of February 11, 2005,
is among the lending institutions from time to time party hereto (such financial
institutions, together with their respective successors and assigns, are
referred to hereinafter each individually as a "Lender" and collectively as the
"Lenders"), BANK OF AMERICA, N.A., as administrative agent and as collateral
agent for the Lenders (in its capacity as administrative agent and collateral
agent, the "Agent"), UBS SECURITIES LLC, a Delaware limited liability company,
as syndication agent for Lenders (in its capacity as syndication agent, the
"Syndication Agent"), Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx
Business Financial Services Inc., The CIT Group/Business Credit, Inc., and Xxxxx
Fargo Foothill, LLC, as co-documentation agents for Lenders (in their respective
capacity as co-documentation agents, the "Co-Documentation Agents"), AMERICAN
COMMERCIAL LINES LLC, a limited liability company formed under the laws of
Delaware (referred to hereinafter as "ACL"), JEFFBOAT LLC, a limited liability
company formed under the laws of Delaware ("Jeffboat"), AMERICAN COMMERCIAL
TERMINALS LLC, a limited liability company formed under the laws of Delaware
(referred to hereinafter as "ACT"), HOUSTON FLEET LLC, a limited liability
company formed under the laws of Delaware (referred to hereinafter as
("Houston"), AMERICAN COMMERCIAL BARGE LINE LLC, a limited liability company
formed under the laws of Delaware (referred to hereinafter as "ACBL"), and
LOUISIANA DOCK COMPANY LLC, a limited liability company formed under the laws of
Delaware (referred to hereinafter as "LDC"; and together with ACL, Jeffboat,
ACT, ACBL and Houston, each, individually a "Borrower" and collectively, the
"Borrowers") and each of the other Obligated Parties (as hereinafter defined)
signatory to this Agreement.
A. Borrowers and certain of their subsidiaries, Agent, UBS Securities LLC,
as documentation agent, and Lenders are parties to that certain Loan Agreement
dated January 11, 2005 and effective as of January 13, 2005 (as amended, the
"Existing Loan Agreement") pursuant to which Lenders loan and make certain
financial accommodations to Borrowers;
B. Borrowers and Lenders wish to amend and restate the Existing Loan
Agreement to incorporate various amendments thereto, including, but not limited
to, the making of additional financial accommodations to Borrowers, without
amending or altering the effect of any of the consents, approvals or waivers
granted by Agent and Lenders prior to the date hereof; and
C. Agent and Lenders are willing to enter into this Agreement on the terms
set forth herein.
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth in this Agreement, and for good and valuable consideration, the
receipt of which is hereby acknowledged, the Lenders, the Agent and the
Obligated Parties signatory to this Agreement hereby agree as follows.
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have
the meanings specified below:
"Account Debtor" means each Person obligated in any way on or in
connection with an Account, Chattel Paper, or General Intangibles (including a
payment intangible).
"Accounts" means "accounts", as such term is defined in the UCC, and any
rights to payment for the sale or lease of goods or rendition of services,
whether or not they have been earned by performance.
"ACL" means American Commercial Lines LLC.
"ACH Transactions" means any cash management, disbursement, or related
services, including overdrafts and the automated clearinghouse transfer of funds
by the Bank for the account of any Borrower.
"Administration Fee" has the meaning specified in Section 2.13.
"Affiliate" means, with respect to a specified person, another person that
(i) directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the person specified or (ii) owns
at least 10% of the Equity Interests of the person specified.
"Agent" means the Bank, solely in its capacity as administrative agent and
collateral agent for the Lenders, and any successor administrative agent and
collateral agent.
"Agent Advances" has the meaning specified in Section 2.01(b)(x).
"Agent-Related Persons" means the Agent, the Syndication Agent, the
Co-Documentation Agents, the Co-Lead Arrangers and Joint Book Runners designated
on the title page of this Agreement, together with their respective Affiliates,
and the officers, directors, employees, counsel, representatives, agents, and
attorneys-in-fact of the Agent, the Syndication Agent, the Co-Documentation
Agents, the Co-Lead Arrangers and Joint Book Runners and their respective
Affiliates.
"Agent's Liens" means the Liens in the Collateral granted to the Agent,
for the benefit of the Credit Providers, pursuant to the terms of this Agreement
and the other Loan Documents.
"Aggregate Revolver Outstandings" means, at any time, the sum of (a) the
unpaid balance of the Revolving Loans, (b) the aggregate accrued and unpaid
interest, costs, fees and expenses payable by any Obligated Party under this
Agreement, (c) the aggregate undrawn face amount of all outstanding Letters of
Credit, and (d) the aggregate principal amount of any unpaid reimbursement
obligations in respect of Letters of Credit.
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"Agreement" means this Amended and Restated Loan Agreement, as it may be
amended, restated, renewed, extended, supplemented, substituted or otherwise
modified from time to time.
"Anniversary Date" means an anniversary of the Closing Date.
"Applicable Margin" means, as of the Closing Date,
(a) with respect to Base Rate Loans and all other Obligations, 0.75% per
annum, and
(b) with respect to LIBOR Loans, 2.25% per annum,
in each case subject to adjustment from time to time thereafter to the
applicable percentage specified corresponding to the Quarterly Average Unused
Availability, as set forth below, respectively:
QUARTERLY AVERAGE LIBOR
UNUSED AVAILABILITY BASE RATE LOANS LOANS
------------------------- --------------- -----
$105,000,000 or more 0.50% 2.00%
Greater than or equal to 0.75% 2.25%
$65,000,000 and less than
$105,000,000
Less than $65,000,000 1.00% 2.50%
For the purpose of determining any such adjustments to the Applicable
Margin, the Quarterly Average Unused Availability shall be calculated and
established on the first Business Day following the end of each fiscal quarter
of Holdings, beginning with the fiscal quarter ending December 31, 2005 (the
first adjustment will be for the month commencing January 1, 2006). If an Event
of Default exists at the time any reduction in the Applicable Margin is to be
implemented, such reduction shall not occur until the first day of the calendar
month following the date on which such Event of Default is no longer continuing.
"Appraised Inventory" means Inventory of the Borrowers, respectively,
which is of a type which is the subject of an appraisal by an experienced and
reputable appraiser reasonably acceptable to the Agent and ACL of the orderly
liquidation value thereof, net of all costs of liquidation.
"Asset Sale" means the sale, transfer or other disposition (including in
connection with any sale and leaseback transaction) (by way of merger or
otherwise) by the Obligated Parties or any of the Subsidiaries to any person
other than the Obligated Parties or any Guarantor of (a) any Equity Interests of
any of the Subsidiaries or (b) any other assets of the Obligated Parties or any
of the Subsidiaries (other than (i) inventory disposed of in the ordinary course
of business (including any sale by Jeffboat of barges and other equipment in a
Jeffboat Sale and Leaseback Transaction), (ii) assets transferred with an
aggregate fair market value not exceeding $2,500,000 in any fiscal year of the
Borrowers in connection with the replacement or upgrade of a tangible asset of
the Obligated Parties or any Guarantor which will be used in a Related Business
and is
3
acquired, or commitments to acquire such asset have been made, within 180 days
of such transfer or (iii) sales or transfers by or among Foreign Subsidiaries),
or (iv) sales or other dispositions of Obsolete Equipment in the ordinary course
of business. For the avoidance of doubt, (A) any disposition in connection with
the exercise of remedies by NRG with respect to certain liens held by NRG on the
Hall Street Terminal which secure certain of ACL's obligations to NRG shall be
deemed to be an "Asset Sale" for purposes of this Agreement and (B) sales of
barges and other equipment by Jeffboat to any of the Obligated Parties and their
Subsidiaries shall in all cases be deemed to be dispositions in the ordinary
course of business.
"Assignment and Acceptance" means an Assignment and Acceptance entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.05), and accepted by the Agent, in the form of Exhibit A
or any other form approved by the Agent.
"Attorney Costs" means and includes all reasonable fees, out-of-pocket
expenses, and disbursements of any law firm or other outside legal counsel
engaged by the Agent and the reasonably allocated costs and out-of-pocket
expenses of internal legal services of the Agent.
"Bank" means Bank of America, N.A., a national banking association, or any
successor entity thereto.
"Bank Product Reserves" means all reserves which the Agent from time to
time establishes in its reasonable discretion for the Bank Products then
provided or outstanding.
"Bank Products" means each and any of the following types of services or
facilities extended to the Obligated Parties by any Lender or any Affiliate of
any Lender: (a) commercial credit cards; (b) cash management services (including
controlled disbursement services, ACH Transactions, and interstate depository
network services), (c) return items; (d) Hedge Agreements; and (e) foreign
exchange.
"Bankruptcy Code" means The Bankruptcy Reform Act of 1978, as heretofore
and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.
"Bankruptcy Court" means the United States Bankruptcy Court for the
Southern District of Indiana or any other court having jurisdiction over the
Chapter 11 Cases from time to time.
"Base Rate" means, for any day, the greater of (a) the rate of interest in
effect for such day as publicly announced from time to time by the Bank in
Charlotte, North Carolina as its "prime rate" (the "prime rate" being a rate set
by the Bank based upon various factors including the Bank's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate) or (b) the Federal Funds Rate in effect for such day, plus
0.50%, per annum (provided, that, in the Agent's reasonable discretion, such
percentage is subject to change at any time without prior notice to the
Borrowers). With respect to any determination of any Interest Rate which is
based on the Base Rate, any change in the prime rate announced by the Bank shall
take effect at the opening of business on the day specified in the public
announcement of such change, and any change in the Federal Funds Rate shall take
effect as of the date of such change.
4
"Base Rate Loans" means any portion of the Revolving Loans during any
period in which such portion bears interest based at the Base Rate.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means individually each of ACL, Jeffboat, ACT, ACBL, Houston,
LDC and any other Person who becomes a party to this Agreement as a "Borrower"
pursuant to the terms hereof, individually, and "Borrowers" means two or more of
such Persons, jointly, severally, and collectively.
"Borrowing" means (a) a borrowing hereunder consisting of Revolving Loans
made available to the Borrowers, or any of them, on the same day (i) by the
Lenders, (ii) by the Bank (in the case of a Borrowing funded as a Non-Ratable
Loan), or (iii) by the Agent (in the case of a Borrowing consisting of an Agent
Advance) or (b) the issuance of a Letter of Credit hereunder.
"Borrowing Base" means, at any time, an amount equal to the lesser of (a)
the Maximum Revolver Amount or (b) the sum of, without duplication, (i)
eighty-five percent (85%) of the Net Amount of Eligible Accounts, plus (ii) the
lesser of (A) fifty percent (50%) Eligible Unbilled Accounts, and (B)
$2,000,000, plus (iii) the Inventory Advance Amount, plus (iv) the Vessel
Advance Amount, minus (iv) Reserves.
"Borrowing Base Certificate" means a certificate by a Responsible Officer
of ACL in a form acceptable to the Agent setting forth the calculation of the
Borrowing Base, including a calculation of each component thereof (including to
the extent Borrowers have received notice of any Reserve from the Agent, any of
the Reserves included in such calculation pursuant to clause (iv) of the
definition of Borrowing Base), all in such detail as shall be reasonably
satisfactory to the Agent. All calculations of the Borrowing Base in connection
with the preparation of any Borrowing Base Certificate shall originally be made
by the Borrowers, or ACL on behalf of the Borrowers, and certified to the Agent;
provided that the Agent shall have the right to review and adjust, in the
reasonable exercise of its credit judgment, any such calculation (a) to reflect
the receipt of proceeds of the Collateral, and (b) to the extent that such
calculation is not made in accordance with the terms of this Agreement.
"Business Day" means (a) any day that is not a Saturday, Sunday, or a day
on which banks in New York, New York, Hartford, Connecticut, Chicago, Illinois
or Charlotte, North Carolina are required or permitted to be closed and (b) with
respect to all notices, determinations, fundings, and payments in connection
with the LIBOR or LIBOR Loans, any day that is a Business Day pursuant to clause
(a) preceding and that is also a day on which trading in Dollars is carried on
by and between banks in the London interbank market.
"Capital Adequacy Regulation" means any guideline, request, or directive
of any central bank or other Governmental Authority, or any other law, rule, or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Capital Lease Obligations" of any person means the obligations of such
person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or
5
personal property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of such
person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
"Casualty", as to any Vessel, shall have the meaning set forth in the
Fleet Mortgages, and as to any Mortgaged Property, shall have the meaning set
forth in each of the Mortgages.
"Casualty Proceeds" means (a) with respect to Vessels, the proceeds of
insurance that become payable to any Obligated Party on account of an accident,
occurrence or event involving any Vessel whether or not resulting in actual or
constructive total loss or an agreed or compromised total loss of such Vessel,
and (b) with respect to real property, insurance proceeds, damages, claims and
rights of action under any insurance policies with respect to any Casualty to
any portion of the Mortgaged Properties.
"Change in Control" means (a) the acquisition after the Closing Date of
ownership, directly or indirectly, beneficially or of record, by any person or
group (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) (other than HY I Investments, L.L.C. and its Affiliates), of Equity
Interests representing more than 25% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of any Obligated
Party; (b) occupation after the Closing Date of a majority of the seats (other
than vacant seats) on the board of directors of any Obligated Party by persons
who were neither (i) nominated by the board of directors of such Obligated Party
nor (ii) appointed by directors so nominated; or (c) the acquisition after the
Closing Date of direct or indirect Control of any Obligated Party by any person
or group.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Chapter 11 Case" shall mean, collectively, the Chapter 11 Cases of the
Borrowers and certain of their Affiliates, each as debtor and
debtor-in-possession, under the Bankruptcy Code, referred to as In re American
Commercial Lines LLC, et al., Chapter 11 Case Nos. 03-90305 (BHL) (Jointly
Administered), which are pending in the Bankruptcy Court.
"Chapter 11 Plan" shall mean the First Amended Joint Plan of
Reorganization of American Commercial Lines LLC and Affiliated Debtors confirmed
by order of the Bankruptcy Court on December 30, 2004.
"Chattel Paper" means "chattel paper", as such term is defined in the UCC,
including any electronic chattel paper.
"Clearing Account" means each bank account maintained with the Bank,
subject to a Deposit Account Control Agreement providing for the Agent's
dominion and control to which the funds of an Obligated Party (including
proceeds of Accounts and other Collateral) are deposited or credited, and which
is maintained in the name of the Agent or such Obligated Party
6
(as the Agent may determine) on reasonable terms acceptable to the Agent. For
purposes of this Agreement, "Clearing Account" includes Clearing Accounts opened
by any Obligated Party with the Bank and pledged in accordance with the Security
Agreement, and any renewals or rollovers thereof, any successor or substitute
deposit accounts, including any such deposit account as it may have been
renumbered or retitled, any proceeds thereof (including any interest paid
thereon), and any general intangibles and choses in action arising therefrom or
related thereto. Whenever there is more than one Clearing Account, the term
"Clearing Account" shall refer to all such Clearing Accounts, collectively.
"Closing Date" means the date on which this Agreement has been executed
and the conditions precedent to the consummation of the Transactions set forth
in Section 4.01 have been satisfied or waived.
"Closing Date Vessel Appraisal" shall mean the ACBL Fleet Appraisal
Valuation Summary as of December 31, 2004 prepared by Xxxxxx, Xxxxxx & Xxxxxxx,
Inc. dated January 26, 2005.
"Closing Fee" has the meaning specified in Section 2.13.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means all of the real property, personal property and other
assets of any Obligated Party now or hereafter subject to the security interest
and lien of Agent, for the benefit of Lenders, under the Security Agreement or
any other Security Document, as the case may be, including, without limitation,
the "Collateral" as defined in the Security Agreement.
"Commitment" means, at any time with respect to a Lender, the principal
amount set forth beside such Lender's name under the heading "Commitments" on
Schedule 1.1(A) or in the most recent Assignment and Acceptance to which such
Lender is a party, as such Commitment may be adjusted from time to time in
accordance with the provisions of this Agreement, and "Commitments" means,
collectively, the aggregate amount of the Commitment of each of the Lenders,
collectively.
"Condemnation" shall have the meaning set forth in each of the Mortgages
and the Fleet Mortgages.
"Condemnation Proceeds" means (a) with respect to Vessels, the
compensation, purchase price, reimbursement or award for any Condemnation of any
of the Vessels and (b) with respect to real property, the proceeds of any action
or proceeding for the taking of any Mortgaged Property, or any part thereof or
interest therein, for public or quasi-public use under the power of eminent
domain, by reason of any public improvement or condemnation proceeding, or in
any other manner.
"Confirmation Order" shall mean the Order entered by the Bankruptcy Court
confirming the Chapter 11 Plan.
"Consolidated Capital Expenditures" means, for any period, the sum of (a)
the aggregate of all expenditures (whether paid in cash or other consideration
or accrued as a liability) by
7
Holdings or any of the Subsidiaries during such period that, in accordance with
GAAP, are or should be included in "additions to property, plant and equipment"
or similar items reflected in the consolidated statement of cash flows of
Holdings and its Subsidiaries for such period (including the amount of assets
leased in connection with any Capital Lease Obligation, but excluding transfers
of assets between Subsidiaries except to the extent of cash expenditures to
effect such transfers), (b) to the extent not included pursuant to clause (a)
above, the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability) by Holdings or any Subsidiary during
such period to acquire by purchase or otherwise, the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of, any person,
and (c) to the extent not included pursuant to clause (a) above, the aggregate
of all expenditures (whether paid in cash or other consideration or accrued as a
liability) by Holdings or any Subsidiary during such period to acquire or
develop software or to acquire software licenses for a period of more than one
year.
"Consolidated EBITDA" means for any period, Consolidated Net Income for
such period, plus (a) the sum, without duplication, of (i) to the extent not
included in computing such Consolidated Net Income, deferred gain of the
Borrowers and the Guarantors for such period in respect of Jeffboat Sale and
Leaseback Transactions, (ii) to the extent deducted in computing such
Consolidated Net Income, the sum, without duplication, of (v) for fiscal year
2005 only, the lesser of (A) cash losses from expenses related to the Chapter 11
Cases (to the extent included in the calculation of EBITDA) or (B) $5,000,000,
(w) any restructuring charges or bankruptcy expenses incurred in fiscal year
2004, (x) all Federal, state, local and foreign income taxes, (y) Consolidated
Net Interest Expense and (z) depreciation, depletion, amortization of
intangibles and other non-cash charges or non-cash losses (including non-cash
transaction expenses, the amortization of debt discounts, losses from impairment
of tangible or intangible assets, translation gains or losses, but excluding
losses from recognition of minority interest in persons), (iii) all fees and
expenses associated with the Transactions and the implementation of the Plan of
Reorganization and (iv) all losses from any Interest Rate Protection Agreement,
minus, to the extent included in computing such Consolidated Net Income, (b) all
gains from any Interest Rate Protection Agreement to the extent included in
computing such Consolidated Net Income and any non-cash income or non-cash gains
(other than gains from recognition of minority interest in persons), including
the effects of previously deferred gain in respect of Jeffboat Sale and
Leaseback Transactions, all as determined on a consolidated basis with respect
to Holdings and its consolidated Subsidiaries in accordance with GAAP. For the
purposes of the foregoing definition, and notwithstanding anything to the
contrary otherwise contained herein, in determining any component used in
calculating Consolidated EBITDA, each component for the period prior to December
31, 2004 shall be calculated for ACL and its Subsidiaries on a consolidated
basis.
"Consolidated Fixed Charge Coverage Ratio" means, as of the end of any
fiscal quarter of Holdings, determined for Holdings and its Subsidiaries on a
consolidated basis for the preceding four (4) fiscal quarters, the ratio of (a)
Consolidated EBITDA minus (i) the aggregate amount of Consolidated Capital
Expenditures made or incurred during such fiscal period (excluding the lesser of
actual maintenance Consolidated Capital Expenditures or $15,000,000 during such
fiscal period), minus (ii) federal, state, local, and foreign cash income taxes
(not less than zero), excluding deferred taxes, minus (iii) cash losses from
restructuring transactions (to the extent not included in the calculation of
EBITDA); divided by (b) Consolidated Fixed
8
Charges.
"Consolidated Fixed Charges" means, with respect to any fiscal period,
determined for Holdings and its Subsidiaries on a consolidated basis for the
preceding four (4) fiscal quarters, without duplication, the sum of: (a)
Consolidated Net Interest Expense, (b) cash dividends, (c) scheduled principal
payments of Indebtedness, and (d) prepayments of Indebtedness.
"Consolidated Net Income" means, for any period, net income or loss of
Holdings and its Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP, provided that there shall be excluded (a) the income of
any person (other than, to the extent of Holdings' and its Subsidiaries' equity
interest and/or shareholders' equity as the case may be therein, persons in
which Holdings or any of its Subsidiaries holds more than 50% of the Equity
Interests) in which any other person (other than Holdings or any of its
Subsidiaries or any director holding qualifying shares in accordance with
applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Holdings or any wholly owned
Subsidiary by such person during such period, (b) the income (or loss) of any
person accrued prior to the date it becomes a Subsidiary of Holdings or is
merged into or consolidated with Holdings or any of its Subsidiaries or the date
that person's assets are acquired by Holdings or any of its Subsidiaries, (c)
the income of any Subsidiary of Holdings to the extent that the declaration or
payment of dividends or similar distributions by its Subsidiary of that income
is not at the time permitted by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that Subsidiary, and (d) any gains or losses
attributable to sales of assets (net of taxes incurred (or in the case of a
loss, any tax benefit realized)).
"Consolidated Net Interest Expense" means, for any period, the gross
interest expense of Holdings and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP, including the portion of any
payments or accruals with respect to Capital Lease Obligations that are
allocable to interest expense in accordance with GAAP, but excluding (a) the
amortization of debt discounts and (b) the amortization of all fees (including
fees with respect to Interest Rate Protection Agreements) payable in connection
with the incurrence of Indebtedness to the extent included in interest expense
in accordance with GAAP (including fees and expenses in connection with the
Transactions and the implementation of the Plan of Reorganization), less the
total interest income of Holdings and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP. For purposes of the
foregoing, gross interest expense shall be determined after giving effect to any
net payments made or received by Holdings or any Subsidiary with respect to
Interest Rate Protection Agreements.
"Consolidated Senior Leverage Ratio" means, as of any date of
determination, the ratio of (a) the sum, without duplication, of (i) the
aggregate stated principal amount of the Loans, and (ii) the aggregate stated
principal amount of all other Indebtedness (without deduction for any
unamortized debt discounts or addition for any premiums, but in the case of
Vessel Leasing, with a deduction in the amount of restricted cash) of Holdings
and its Subsidiaries on a consolidated basis at such date (other than any
Indebtedness described in clause (i) and, except to the extent of any reimbursed
drawings thereunder, clause (j) of the definition of the term "Indebtedness")
minus the sum of (A) the aggregate amount of the Maritime Lien Notes or the Tort
Lien Notes (or the Indebtedness to be evidenced by such Maritime Lien Notes or
the Tort Lien Notes, as the
9
case may be, as provided for under the Chapter 11 Plan) plus (B) the
Indebtedness evidenced by the Senior Notes, plus (C) the Indebtedness of ACL, in
the amount of $1,426,000, in connection with that certain Guaranty Agreement
dated as of May 24, 2002 in favor of the International Finance Corporation with
respect to the obligations of Global Marine Services, Venezuela C.A., to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters most
recently ended on or prior to such date.
"Continuation/Conversion Date" means the effective date of (a) any
continuation of LIBOR Loans as LIBOR Loans and (b) any conversion of LIBOR Loans
to Base Rate Loans or of Base Rate Loans to LIBOR Loans.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Providers" means, collectively, the Agent (in its capacity as
administrative agent and collateral agent for the Lenders hereunder and as
provider of Agent Advances), the Lenders (in their capacity as Lenders and as
providers of Bank Products), the Bank (in its capacity as provider of
Non-Ratable Loans), the Letter of Credit Issuer, and the Indemnified Persons,
and "Credit Provider" means any of the foregoing, individually.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time, or both, would become an Event of
Default.
"Default Rate" means a fluctuating per annum interest rate at all times
equal to the sum of (a) the otherwise applicable Interest Rate, plus (b) 2.00%
per annum. The Default Rate shall be adjusted simultaneously with any change in
the applicable Interest Rate.
"Defaulting Lender" has the meaning specified in Section 8.14(c).
"Deposit Account Control Agreement" means an agreement, including a
blocked account agreement, in form and substance satisfactory to the Agent,
among a Borrower, a banking institution holding funds of such Borrower, and the
Agent with respect to collection and control of all deposits and balances held
in a Deposit Account maintained by such Borrower with such banking institution.
"Deposit Accounts" means "deposit accounts", as such term is defined in
the UCC.
"Dilution Reserves" means, as of any date of determination based upon
Agent's then current field examination or other financial information as
reported to Agent, an amount sufficient to reduce the Net Amount of Eligible
Accounts (as calculated prior to any deduction therefrom of Dilution Reserves)
by one percentage point or more, in the reasonable exercise of Agent's
discretion, for each percentage point by which dilution of Accounts exceeds 5%.
"Documents" means "documents", as such term is defined in the UCC, and
bills of lading, warehouse receipts, and other documents of title.
10
"Dollars" or "$" refers to lawful money of the United States of America.
"Domestic Subsidiaries" means all Subsidiaries incorporated or organized
under the laws of the United States of America, any State thereof or the
District of Columbia.
"Eligible Accounts" means the Accounts of the Borrowers, respectively,
that the Agent in the exercise of its reasonable credit judgment determines to
be Eligible Accounts. Without limiting the discretion of the Agent to establish
other criteria of ineligibility, Eligible Accounts shall not, include any
Account (except as may be otherwise specified below):
(a) that does not arise from the sale of Goods or rendition of services in
the ordinary course of business of a Borrower;
(b) that is not subject to the Agent's Liens which are perfected as to
such Account, or that is subject to any other Lien other than Permitted Liens;
(c) with respect to which more than ninety (90) days have elapsed from the
date of the original invoice therefor, or no invoice has been issued;
(d) with respect to which any of the representations, warranties,
covenants, and agreements contained in this Agreement are incorrect or have been
breached;
(e) with respect to which (or any other Account due from the applicable
Account Debtor), in whole or in part, a check, promissory note, draft, trade
acceptance, or other instrument for the payment of money has been received,
presented for payment, and returned uncollected for any reason;
(f) that is the subject of any debit memo or charge-back, but only to the
extent of such debit memo or charge-back;
(g) with respect to which a Borrower has extended the time for payment
without the consent of the Agent;
(h) that represents a progress billing (for the purposes hereof, "progress
billing" does not include any invoice for goods sold or leased or services
rendered under a contract or agreement pursuant to which the Account Debtor's
obligation to pay such invoice is conditioned solely upon the delivery or
performance by such Borrower, in the ordinary course of such Borrower's
business, of the goods or services which are subject to such contract or
agreement);
(i) with respect to which any one or more of the following events has
occurred to the Account Debtor on such Account: (i) death or judicial
declaration of incompetency of such Account Debtor who is a natural person; (ii)
the filing by or against such Account Debtor of a request or petition for
liquidation, reorganization, arrangement, adjustment of debts, adjudication as a
bankrupt, winding-up, or other relief under the Bankruptcy Code or any other
Requirement of Law, now or hereafter in effect; (iii) the making of any general
assignment by such Account Debtor for the benefit of creditors; (iv) the
appointment of a receiver or trustee for such Account Debtor or for any of the
assets of such Account Debtor, including the appointment of or taking possession
by a "custodian," as defined in the Bankruptcy Code; (v) the institution by or
against
11
such Account Debtor of any other type of insolvency proceeding (under the
Bankruptcy Code or otherwise) or of any formal or informal proceeding for the
dissolution or liquidation of, settlement of claims against, or winding up of
affairs of, such Account Debtor; (vi) the sale, assignment, or transfer of all
or substantially all of the assets of such Account Debtor; (vii) the nonpayment
generally by such Account Debtor of its debts as they become due; or (viii) the
cessation of the business of such Account Debtor as a going concern;
(j) with respect to which 50% or more of the aggregate Dollar amount of
outstanding Accounts owed at such time to the Borrowers by the Account Debtor
thereon is classified as ineligible pursuant to the other provisions of this
definition;
(k) owed by an Account Debtor that: (i) does not maintain its chief
executive office in the U.S. or Canada; (ii) is not organized under the laws of
the U.S. or Canada or any political subdivision, state, province, or territory
thereof; or (iii) is the government of any foreign country or sovereign state,
or of any state, province, municipality, or other political subdivision thereof,
or of any department, agency, public corporation, or other instrumentality
thereof, except in each case to the extent that such Account is secured or
payable by a letter of credit the terms of which are satisfactory to the Agent
in the reasonable exercise of its discretion and which is in the possession of
the Agent and which, together with all related Letter-of-Credit Rights, is
subject to a first priority Lien in favor of the Agent, for the benefit of the
Credit Providers;
(l) owed by an Account Debtor that is an Affiliate, officer, director, or
employee of an Obligated Party or any Affiliate of an Obligated Party;
(m) except as provided in clause (o) following, with respect to which
either the perfection, enforceability, or validity of the Agent's Liens in such
Account, or the Agent's right or ability to obtain direct payment to the Agent
of the proceeds of such Account, is governed by any federal, state, or local
statutory requirements other than those of the UCC;
(n) owed by an Account Debtor to which an Obligated Party, or any of its
Affiliates, is indebted in any way (including accrued liabilities), or which is
subject to any right of setoff or recoupment by the Account Debtor, unless the
Account Debtor has entered into an agreement acceptable to the Agent to waive
setoff rights, or if the Account Debtor thereon has disputed liability or made
any claim with respect to any other Account due from such Account Debtor, but in
each such case only to the extent of such indebtedness, setoff, recoupment,
dispute, or claim;
(o) owed by (i) the government of the U.S., or any department, agency,
public corporation, or other instrumentality thereof, unless the Federal
Assignment of Claims Act of 1940, as amended (31 U.S.C. Section 3727 et seq.),
and any other steps necessary to perfect the Agent's Liens therein, have been
complied with to the Agent's satisfaction with respect to such Account or (ii)
any state, municipality, or other political subdivision of the U.S., or any
department, agency, public corporation, or other instrumentality thereof and as
to which the Agent reasonably determines that its Lien therein is not or cannot
be perfected;
(p) that represents a sale on a (i) cash or C.O.D. basis or (ii)
xxxx-and-hold, guaranteed sale, sale and return, sale on approval, consignment,
or other repurchase or return basis;
(q) that is evidenced by a promissory note or other instrument or by
Chattel Paper;
12
(r) with respect to which the Agent believes, in the exercise of its
reasonable credit judgment, that the prospect of collection of such Account is
impaired or that such Account may not be paid by reason of the Account Debtor's
financial inability to pay;
(s) except as may be permitted by the Agent in the reasonable exercise of
its discretion, with respect to which the Account Debtor is located in any state
requiring the filing of a Notice of Business Activities Report or similar report
in order to permit a Borrower to seek judicial enforcement in such state of
payment of such Account, unless such Borrower has qualified to do business in
such state or has filed a Notice of Business Activities Report or equivalent
report for the then current year;
(t) that arises out of finance or similar charges;
(u) with respect to which the goods giving rise to such Account have not
been shipped and delivered to and accepted by, or have been rejected or objected
to by, the Account Debtor or the services giving rise to such Account have not
been performed by the applicable Borrower, and, if applicable, accepted by the
Account Debtor, or the Account Debtor revokes its acceptance of such goods or
services;
(v) owed by an Account Debtor, or group of affiliated Account Debtors,
which is obligated to a Borrower respecting Accounts the aggregate unpaid
balance of which exceeds 25% of the aggregate unpaid balance of all Eligible
Accounts owed to Borrowers at such time by all of Borrowers' Account Debtors,
but only to the extent of such excess; or
(w) that is the subject of any unreconciled variance between the aging of
Accounts delivered to the Agent, the general ledger of the applicable Borrower,
and the Borrowing Base Certificate, but only the extent of such variance.
Notwithstanding the foregoing, the Agent may change the criteria for
Eligible Accounts or establish new criteria for Eligible Accounts in good faith,
and upon notice to Borrowers based on: an event, condition or other circumstance
relating to Borrowers' assets, liabilities, business, financial condition or
results of operations (i) arising after the date hereof, or (ii) existing on the
date hereof to the extent Agent has no written notice thereof from any Borrower
prior to the date hereof, in either case under clause (i) or (ii) which
materially adversely affects or could reasonably be expected to materially
adversely affect the Accounts in the good faith determination of Agent. Any
Accounts that are not Eligible Accounts shall nevertheless be part of the
Collateral.
"Eligible Assignee" means (a) a commercial bank, commercial finance
company, or other asset based lender having total assets in excess of Two
Hundred and Fifty Million Dollars ($250,000,000), (b) any Lender listed on the
signature pages of this Agreement, (c) any Affiliate of any Lender, and (d) if
an Event of Default has occurred and is continuing, any Person reasonably
acceptable to the Agent.
"Eligible Inventory" means Inventory of the Borrowers consisting of steel
raw material inventory located in Jeffersonville, Indiana or In-Transit
Inventory or fuel, valued at the lower of cost (on a weighted average basis) or
market value, which the Agent, in its reasonable credit judgment, determines to
be Eligible Inventory. Without limiting the discretion of the Agent to
13
establish other criteria of ineligibility, Eligible Inventory shall not include
any Inventory (except as may be otherwise specified below):
(a) that is not owned by a Borrower, including goods held by a Borrower on
consignment;
(b) that is not subject to the Agent's Liens, which are perfected as to
such Inventory, or that is subject to any Liens other than those described in
Section 6.02(a) and other Permitted Liens; provided that such other Permitted
Liens (i) are junior in priority to the Agent's Liens or subject to Reserves and
(ii) do not impair directly or indirectly the ability of the Agent to realize on
or obtain the full benefit of the Collateral;
(c) that is not steel raw materials or fuel;
(d) that consists of finished goods, work-in-process, chemicals, samples,
prototypes, supplies, or packing and shipping materials;
(e) that is not in good condition, is unmerchantable, or does not meet all
standards imposed by any Governmental Authority having regulatory authority over
such goods or their use or sale;
(f) that is obsolete, defective, or not currently salable, at prices
approximating at least cost, in the normal course of the applicable Borrower's
business, or that is slow moving or stale;
(g) that is returned (other than returned Inventory that is without
defects and is readily salable), repossessed, or used goods taken in trade;
(h) that is not located in Jeffersonville, Indiana or is not In-Transit
Inventory or is not fuel;
(i) that is consigned to third parties or is subject to any xxxx-and-hold,
guaranteed sale, sale on approval, or other repurchase or return basis;
(j) that is located in a public warehouse or in possession of a bailee or
in a facility leased by a Borrower, if the applicable warehouseman, bailee, or
lessor has not delivered to the Agent, if requested by the Agent, a collateral
waiver agreement or if a Reserve for rents or storage charges has not been
established for Inventory at that location;
(k) that contains or bears any proprietary rights licensed to a Borrower
by any Person, if the Agent is not satisfied that it may sell or otherwise
dispose of such Inventory in accordance with the terms of this Agreement without
infringing the rights of the licensor of such Proprietary Rights or violating
any contract with such licensor (and without payment of any royalties other than
any royalties due with respect to the sale or disposition of such Inventory
pursuant to the existing license agreement), and, if the Agent deems it
necessary, as to which such Borrower has not delivered to the Agent a consent or
sublicense agreement from such licensor in form and substance acceptable to the
Agent; or
(l) that is not reflected in the details of a current perpetual inventory
report.
14
Notwithstanding the foregoing, the Agent may change criteria for Eligible
Inventory and establish new criteria for Eligible Inventory in good faith, and
upon notice to Borrowers based on: an event, condition or other circumstance
relating to Borrowers' assets, liabilities, business, financial condition or
results of operations (i) arising after the date hereof, or (ii) existing on the
date hereof to the extent Agent has no written notice thereof from any Borrower
prior to the date hereof, in either case under clause (i) or (ii) which
materially adversely affects or could reasonably be expected to materially
adversely affect the Inventory in the good faith determination of Agent. Any
Inventory that is not Eligible Inventory shall nevertheless be part of the
Collateral.
"Eligible Unbilled Accounts" shall mean all Accounts, which, in the
ordinary course of a Borrower's business, a Borrower accrues as revenue and as
an Account, that have not yet been billed to a customer, but that arise under a
specific agreement or contract in respect of which goods have been loaded onto a
barge for delivery but have not yet been delivered to the customer or to their
final destination and which Accounts, notwithstanding the criteria set forth in
the definition of Eligible Accounts, Agent, in its reasonable discretion,
determines to be an Eligible Account under the definition of Eligible Accounts.
"Eligible Vessels" shall mean towboats, barges and other vessels that (a)
are owned by the Borrowers, (b) are registered with the United States Coast
Guard, if such towboat, barge or other vessel is eligible for registration with
the United States Coast Guard, (c) are subject to the first priority lien in
favor of the Agent, subject to Permitted Liens, and (d) operate exclusively in
domestic waters.
"Environmental Claim" means any written accusation, allegation, notice of
violation, claim, demand, order, directive, cost recovery action or other cause
of action by, or on behalf of, any Governmental Authority or any person for
damages, injunctive or equitable relief, personal injury (including sickness,
disease or death), Remedial Action costs, tangible or intangible property
damage, natural resource damages, nuisance, pollution, any adverse effect on the
environment caused by any Hazardous Material, or for fines, penalties or
restrictions, resulting from or based upon (a) the existence, or the
continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases), (b) exposure to any Hazardous Material,
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of Holdings or any Subsidiary directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
15
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing.
"Environmental Lien" means a Lien in favor of any Governmental Authority
for (i) any liability under federal or state environmental laws or regulations,
or (ii) damages arising from or costs incurred by such Governmental Authority in
response to a release or threatened release of a hazardous or toxic waste,
substance or constituent, or other substance into the environment.
"Environmental Permit" means any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Interests" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a person, and any warrants, options
or other rights entitling the holder thereof to purchase or acquire any such
equity interest.
"Equity Issuance" shall mean the issuance by any Obligated Party or any
Subsidiary of any Equity Interests of any Obligated Party or any Subsidiary, as
applicable, or the receipt by any Obligated Party or any Subsidiary of any
capital contribution, in each case, after the Closing Date, other than (a) any
such issuance of Equity Interests to, or receipt of any such capital
contribution from, any Obligated Party or a Subsidiary, (b) any issuance of
Equity Interests by any Foreign Subsidiary to existing stockholders of such
Foreign Subsidiary as a result of a capital call by such Foreign Subsidiary and
(c) any issuance of "Management Incentive New Shares" pursuant to the "Stock
Option Plan" (as defined in the Plan of Reorganization).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with Holdings, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30 day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by Holdings or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by Holdings or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
Holdings or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by Holdings or any ERISA Affiliate of any
16
notice, or the receipt by any Multiemployer Plan from Holdings or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to the Loans or a portion thereof,
refers to whether such Loans or such portion of the Loans are (or is) bearing
interest at a rate determined by reference to LIBOR.
"Event of Default" has the meaning assigned to such term in Article VII.
"Excluded Taxes" means, with respect to the Agent, any Lender, or any
other recipient of any payment to be made by or on account of any obligation of
the Obligated Parties hereunder, (a) income or franchise taxes imposed on (or
measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Obligated Parties are located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Obligated
Parties under Section 2.12(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.10(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Obligated Parties with respect to such withholding
tax pursuant to Section 2.10(a).
"Existing Loan Agreement" shall have the meaning assigned to it in the
Recitals hereof.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100th of 1.00%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate charged to the
Bank on such day on such transactions as determined by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System or any successor thereto.
"Fee Letter" means that certain letter agreement dated as of the date
hereof among the Borrowers, the other Obligated Parties, the Syndication Agent
and the Agent.
"Fees" means the fees referred to in Section 2.13.
"Financial Officer" means the chief financial officer, principal
accounting officer,
17
treasurer or controller of an Obligated Party.
"Financial Statements" means, according to the context in which used, the
financial statements referred to in Section 3.05 and Section 5.04 or any other
financial statements required to be given to the Agent pursuant to this
Agreement.
"Fleet Mortgage" means the Fleet Mortgages dated as of the date hereof by
each of ACL, Houston and LDC in favor of the Agent in the form of Exhibit C-2
hereto, covering towboats, barges and other vessels owned by ACL, Houston and
LDC, respectively, and documented by the United States Coast Guard by the
Borrowers or the Guarantors to secure all of the obligations of the Borrowers
and the Guarantors under and in connection with this Agreement.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Obligated Parties are located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"Funding Account" has the meaning specified in Section 2.01(b)(iv).
"Funding Date" means the date on which a Borrowing occurs.
"GAAP" means generally accepted accounting principles and practices set
forth from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession) that are applicable to the circumstances as of the
date of determination.
"General Intangibles" means, with respect to any Person, "general
intangibles", as such term is defined in the UCC, and all other choses in action
and causes of action, intangible personal property of every kind and nature
(other than Accounts), including all contract rights, payment intangibles,
Proprietary Rights, corporate or other business records, inventions, designs,
blueprints, plans, specifications, patents, patent applications, trademarks,
service marks, trade names, trade secrets, goodwill, copyrights, computer
software, customer lists, registrations, licenses, franchises, tax refund
claims, any funds that may become due to such Person in connection with the
termination of any Plan or other employee benefit plan or any rights thereto and
any other amounts payable to such Person from any Plan or other employee benefit
plan, rights and claims against carriers and shippers, rights to
indemnification, business interruption insurance and proceeds thereof, property,
casualty or any similar type of insurance and any proceeds thereof, proceeds of
insurance covering the lives of key employees on which such Person is
beneficiary, rights to receive dividends, distributions, cash, Instruments and
other property in respect of or in exchange for pledged equity interests or
Investment Property and any letter of credit, guarantee, claim, security
interest or other security held by or granted to such Person.
"Goods" means "goods" as such term is defined in the UCC.
18
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any person (the "the guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Guarantors" means each Subsidiary listed on Schedule 1.01, and each other
Subsidiary that is or becomes party to a Guaranty Agreement.
"Guaranty Agreement" means the Guaranty Agreement among the Guarantors in
favor of the Agent, in the form of Exhibit D hereto and any similar agreement
executed pursuant to Section 5.10 hereof.
"Hall Street Terminal" means the Hall Street Terminal at North St. Louis,
Missouri.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedge Agreements" means any and all transactions, agreements, or
documents now existing or hereafter entered into, which provide for an interest
rate, credit, commodity, or equity swap, cap, floor, collar, forward foreign
exchange transaction, currency swap, cross currency rate swap, currency option,
or any combination of, or option with respect to, these or similar transactions,
for the purpose of hedging a Person's exposure to fluctuations in interest or
exchange rates, loan, credit exchange, security, or currency valuations, or
commodity prices, including, without limitation, all Interest Rate Protection
Agreements.
"Holdings" means American Commercial Lines Inc.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits (other
than customer deposits in the ordinary course of business) or advances of any
kind, (b) all obligations of such person
19
evidenced by bonds, debentures, notes or similar instruments, including, without
limitation, the Maritime Lien Notes, the Tort Notes and the Senior Notes, (c)
all obligations of such person upon which interest charges are customarily paid
(excluding trade accounts payable on customary trade terms and accrued
obligations incurred in the ordinary course of business), (d) all obligations of
such person under conditional sale or other title retention agreements relating
to property or assets purchased by such person, (e) all obligations of such
person issued or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property, valued at the fair market
value of the assets subject to such Lien (in the case of nonrecourse
Indebtedness) owned or acquired by such person, whether or not the obligations
secured thereby have been assumed, (g) all Guarantees by such person of
Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of Hedging Agreements, Interest Rate
Protection Agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements, (j) all obligations of such person as an
account party in respect of letters of credit and (k) all obligations of such
person as an account party in respect of bankers' acceptances. The Indebtedness
of any person shall include the Indebtedness of any partnership in which such
person is a general partner, except to the extent that the terms of such
Indebtedness provide otherwise.
"Indemnified Liabilities" has the meaning specified in Section 9.04(b)(i).
"Indemnified Person" has the meaning specified in Section 9.04(b)(i).
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indenture" means the Indenture dated as of February 11, 2005 among ACL,
ACL Finance Corp., the guarantors party thereto and Wilmington Trust Company, as
trustee, as amended from time to time.
"Instruments" means "instruments", as such term is defined in the UCC.
"Interest Payment Date" means (a) the first day of each calendar month and
(b) the Termination Date.
"Interest Period" means, with respect to any LIBOR Loan, the period
commencing on the Funding Date of such Loan or on the Continuation/Conversion
Date on which such Loan is continued as or converted into a LIBOR Loan, and
ending on the date one, two, three, or six months thereafter as selected by a
Borrower in a Notice of Borrowing or Notice of Continuation/Conversion, provided
that:
(a) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the following Business
Day unless the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall end on
the preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a calendar
month (or
20
on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period; and
(c) no Interest Period shall extend beyond the Stated Termination Date.
"Interest Rate" means each or any of the interest rates, including (except
for purposes of clause (a) of the definition of "Default Rate") the Default
Rate, set forth in Section 2.06.
"Interest Rate Protection Agreements" means any interest rate swap
agreements, interest rate cap agreements, interest rate collar agreements or
similar agreements or arrangements entered into in the ordinary course of
business of the Obligated Parties or any Subsidiary and not for speculation.
"In-Transit Inventory" shall mean all steel raw material Inventory owned
by Borrowers and not covered by Letters of Credit, and which steel raw material
Inventory is or will be in transit to one of the Borrowers' locations and (a) is
fully insured, (b) is subject to a first priority security interest in and lien
upon such goods in favor of Agent (except for any possessory lien upon such
goods in the possession of a freight carrier or shipping company securing only
the freight charges for the transportation of such goods to such Borrowers), (c)
is not in transit to the Borrowers for more than 30 days, and (d) upon Agent's
request, all documents, notices, instruments, statements and bills of lading
relating thereto, if any, are delivered to Agent.
"Inventory" means "inventory", as such term is defined in the UCC, and
inventory, goods, and merchandise to be furnished under any contract of service
or held for sale or lease, returned goods, raw materials, work-in-process,
finished goods (including embedded software), other materials and supplies of
any kind, nature, or description which are used or consumed in a Person's
business or used in connection with the packing, shipping, advertising, selling,
or finishing of such goods, merchandise, and all documents of title or other
Documents representing them. Notwithstanding anything to the contrary set forth
herein, Inventory shall not include any vessels or barges leased, chartered or
otherwise used (at any time) in the operation of the Borrowers' business (other
than vessels or barges held for sale in the ordinary course of business by
Jeffboat LLC), or vessels or barges sold or to be sold for scrap, or the
proceeds of any of the foregoing.
"Inventory Advance Amount" means the lesser of (a) 50% of the lower of
cost or market value, determined on a weighted average basis, of Eligible
Inventory except that (i) with respect to any Eligible Inventory consisting of
In-Transit Inventory, such Inventory shall be valued at the lower of cost or
market and net of all duty, freight, taxes, costs, insurance and other charges
and expenses which may pertain to such In-Transit Inventory, and (ii) with
respect to any Eligible Inventory consisting of fuel, the maximum amount of
Loans outstanding against such Eligible Inventory shall not exceed $5,000,000 at
any one time outstanding, and (b) 85% of the Net Liquidation Value of Inventory.
"Investment Property" means "investment property", as such term is defined
in the UCC, and any (a) securities, whether certificated or uncertificated, (b)
securities entitlements, (c) securities accounts, (d) commodity contracts, and
(e) commodity accounts.
21
"IRS" means the Internal Revenue Service and any Governmental Authority
succeeding to any of its principal functions under the Code.
"Jeffboat Sale and Leaseback Transactions" shall mean sales by Jeffboat
LLC of barges or other equipment manufactured by Jeffboat LLC or any other
Borrower or Guarantor to a third party, which barges or other equipment are then
leased back to a Borrower or a Subsidiary.
"LaGen" means Louisiana Generating L.L.C. and its successors and assigns.
"Lender" means any of the lending institutions signatory to this Agreement
as specified on the signature pages hereto or in any Assignment and Acceptance
as a "Lender", the Agent to the extent of any Agent Advance outstanding, and the
Bank to the extent of any Non-Ratable Loan outstanding, and "Lenders" means any
two or more of such Persons, collectively.
"Lenders" shall have the meaning set forth in the Introduction.
"Letter of Credit" has the meaning specified in Section 2.03.
"Letter of Credit Fee" has the meaning specified in Section 2.13(b).
"Letter of Credit Fee Percentage" means with respect to any Letter of
Credit, on any date of determination, a per annum percentage equal to the
Applicable Margin for LIBOR Loans as of such date of determination, plus, during
the continuance of any Event of Default, an additional 2.00% per annum.
"Letter of Credit Issuer" means the Bank or any Affiliate of the Bank that
is the issuer of the Letter of Credit.
"Letter-of-Credit Rights" means "letter-of-credit rights", as such term is
defined in the UCC, and any rights to payment or performance under a letter of
credit, whether or not the beneficiary, has demanded or is entitled to demand
payment or performance.
"Letter of Credit Subfacility" means $35,000,000.
"LIBOR" means, for any Interest Period, with respect to LIBOR Loans, the
rate of interest per annum determined pursuant to the following formula:
LIBOR = Offshore Base Rate
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1.00%) in effect on such day
applicable to member banks under regulations issued from time to
time by the Federal Reserve Board for determining the maximum
reserve requirement (including any emergency, supplemental, or other
marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to
22
as "Eurocurrency liabilities"). The LIBOR for each outstanding LIBOR
Loan shall be adjusted automatically as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Offshore Base Rate" means the rate per annum appearing on
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If
for any reason such rate is not available, the Offshore Base Rate
shall be, for any Interest Period, the rate per annum appearing on
Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates. If
for any reason none of the foregoing rates is available, the
Offshore Base Rate shall be, for any Interest Period, the rate per
annum determined by the Agent as the rate of interest at which
Dollar deposits in the approximate amount of the LIBOR Loan
comprising part of such Borrowing would be offered by the Bank's
London Branch to major banks in the offshore Dollar market at their
request at or about 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period for a term comparable to
such Interest Period.
"LIBOR Loans" means any portion of the Revolving Loans during any period
in which such portion bears interest based on the LIBOR.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Account" means the loan account of the Borrowers, which account
shall be maintained by the Agent.
"Loan Documents" means this Agreement, the Security Agreement, the Pledge
Agreement, the Fleet Mortgages, the Mortgages, the Trademark Security Agreement,
the NRG Intercreditor Agreement and any other instrument or agreement executed
and delivered to the Agent or any Lender in connection herewith.
"Loan Parties" means the Obligated Parties.
"Loans" means, collectively, all Revolving Loans and advances provided for
in Article 2.
"Majority Lenders" At any time: (a) if there are two (2) Lenders or fewer,
Majority
23
Lenders shall mean all Lenders; provided that if one of them is a Defaulting
Lender and one is not, Majority Lenders shall mean the Lender who is not a
Defaulting Lender, and (b) if there are more than two (2) Lenders, Majority
Lenders shall mean Lenders (other than Defaulting Lenders) whose Pro Rata Shares
aggregate more than 50.0% of the Commitments of all Lenders other than
Defaulting Lenders, provided that at any time there are three (3) Lenders and
none of them is a Defaulting Lender, Majority Lenders shall mean at least two
Lenders whose Pro Rata Shares aggregate more than 50.0% of the Commitments of
all Lenders. A Defaulting Lender shall have no right to vote on any issue for
the purpose of making any determination by Majority Lenders, but a Defaulting
Lender shall be counted solely for the purpose of determining the number of
Lenders.
"Margin Stock" has the meaning assigned to such term in Regulation U.
"Maritime Lien" has the meaning ascribed to such term in the Plan of
Reorganization.
"Maritime Lien Notes" has the meaning ascribed to such term in the Plan of
Reorganization.
"Maritime and Cost to Complete Reserves" means (a) the reserves
established by the Agent in its good faith credit judgment reasonably exercised
for necessaries and other maritime liens based upon the categories set forth in
the Borrowing Base Certificate under the heading "Maritime Reserves" from time
to time, provided that the Agent will not change the percentage set forth
opposite "Historical Percentage of Claims" in the Borrowing Base Certificate
absent a change in the Borrowers' claims experience percentage relating to such
claims as calculated by Agent during the course of its periodic field exams,
over a twenty-four (24) month period; plus (b) if, and so long as, Unused
Availability is less than $15,000,000, in Agent's discretion exercised in good
faith, a reserve in the amount of $7,500,000.
"Material Adverse Effect" means a material adverse effect with respect to
(a) the financial condition, business, performance or operations of Borrowers
and the other Obligated Parties (taken as a whole); (b) the legality, validity
or enforceability of any material provision of the Loan Documents; (c) the
legality, validity, enforceability, perfection or priority of the security
interests and Liens of Agent upon Collateral having an aggregate value in excess
of $2,500,000; (d) the ability of Borrowers to repay the Obligations or of
Borrowers or Obligated Parties to perform their respective obligations under the
Loan Documents as and when to be performed; or (e) the ability of Agent or any
Lender to enforce the Obligations or realize upon the Collateral or otherwise
with respect to the rights and remedies of Agent or any Lender under any of the
Loan Documents.
"Maximum Rate" means, at any time, the highest rate of interest the
Lenders may legally contract for, charge, or receive in respect of the
Obligations as allowed by any Requirement of Law.
"Maximum Revolver Amount" means $250,000,000.
"Mortgaged Properties" means (a) the owned real properties and leasehold
and subleasehold interests of the Obligated Parties (including, without
limitation, those specified on Schedules 3.19(a) and 3.19(b)) and (b) the
Vessels (including, without limitation, those specified
24
on Schedule 3.19(c)).
"Mortgages" means the mortgages, deeds of trusts, leasehold mortgages and
security documents from time to time executed by an Obligated Party in favor of
Agent, for the benefit of Lenders, granting a Lien upon the Mortgaged Properties
owned by such Obligated Party.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Amount of Eligible Accounts" means, at any time, the gross amount of
Eligible Accounts, less sales, excise, or other similar taxes, and less returns,
discounts, claims, credits, allowances, accrued rebates, offsets, deductions,
counterclaims, disputes, and other defenses of any nature at any time issued,
owing, granted, outstanding, available, or claimed, and less Dilution Reserves.
"Net Cash Proceeds" means with respect to any Asset Sale, the cash
proceeds thereof (including cash proceeds subsequently received (as and when
received) in respect of non-cash consideration initially received) received by
any Obligated Party, net of (a) selling expenses (including reasonable broker's
fees or commissions, legal fees, transfer and similar taxes and the Obligated
Party's good faith estimate of income taxes paid or payable in connection with
such sale), (b) amounts provided as a reserve, in accordance with GAAP, against
any liabilities under any indemnification obligations associated with such Asset
Sale (provided that, to the extent and at the time any such amounts are released
from such reserve, such amounts shall constitute Net Cash Proceeds), (c) the
principal amount, premium or penalty, if any, interest and other amounts on any
Indebtedness for borrowed money which is secured by the asset sold in such Asset
Sale and which is repaid with such proceeds (other than any such Indebtedness
assumed by the purchaser of such asset) and (d) with respect to the exercise by
NRG of its option to purchase the Hall Street Terminal and/or not more than 200
barges dedicated or allocable to the performance of the NRG Agreements, all sums
that NRG is permitted to set off against the purchase price payable thereunder
pursuant to the terms of the NRG Agreements, and with respect to the foreclosure
by NRG of the liens against the Hall Street Terminal granted to it under the NRG
Agreements, the obligations secured by such liens and all other amounts that
pursuant to applicable law are paid from the proceeds of such foreclosure.
"Net Liquidation Value of Inventory" means the amount determined on any
date by multiplying the amount of Appraised Inventory of the Borrowers on the
determination date by the most recent Net Liquidation Value Percentage.
"Net Liquidation Value Percentage" means the percentage, determined
pursuant to an appraisal of the Borrowers' Inventory (such appraisal shall be a
desk top appraisal conducted by Agent) of the orderly liquidation value thereof,
net of all costs of liquidation, which represents the value of the Inventory
appraised to the lesser of the cost or market value of such Inventory on the
date of such appraisal.
"Net Forced Liquidation Value of Vessels" shall mean, as to Eligible
Vessels, at any time, the value of such Eligible Vessels, determined on a forced
liquidation basis, reduced by commissions, fees, costs and expenses contemplated
in connection with the liquidation thereof,
25
as set forth in the Closing Date Vessel Appraisal or any subsequent Vessel
Appraisal delivered to Agent.
"Non-Consenting Lender" has the meaning specified in Section 9.03.
"Non-Ratable Loan" and "Non-Ratable Loans" have the meanings specified in
Section 2.01(b)(ix).
"Note" means any Revolving Loan Note, and "Notes" means any two or more of
the Revolving Loan Notes, as the context requires.
"Notice of Borrowing" has the meaning specified in Section 2.01(b)(iii).
"Notice of Continuation/Conversion" has the meaning specified in Section
2.02.
"NRG" means, NRG New Roads Holdings LLC and Louisiana Generating LLC,
individually and collectively, and their respective successors and assigns.
"NRG Agreements" means, collectively, (a) the Coal Transportation
Agreement pursuant to which The Burlington Northern and Santa Fe Railway Company
and ACT will transport certain tonnages of coal from mines in the Wyoming Powder
River Basin to the Big Cajun No. II steam-electric generating plant and coal
unloading dock of Louisiana Generating LLC, (b) the Security Side Letter
Agreement among ACL, ACT, ACBL and NRG (c) the Lease between ACT and NRG
covering the Hall Street Terminal, (d) the Terminal Option Agreement between ACT
and NRG (e) the Barge and Tug Option Agreement between ACL and NRG; (f) the Deed
of Trust granted by ACT to Louisiana Generating LLC in respect of the Hall
Street Terminal; (g) the Conditional Assignments and Assumptions of Lease,
between ACT and NRG with respect to leased properties comprising a portion of
the Hall Street Terminal, (h) the Conditional Assignment of Inter Carrier
Agreement between ACT and NRG, (i) the Operations Side Letter Agreement between
ACT and Louisiana Generating LLC, each dated as of December 10, 2004, as amended
from time to time.
"NRG Intercreditor Agreement" shall mean the Intercreditor Agreement,
dated of even date herewith, executed by and among the Agent, LaGen and NRG.
"Obligated Party" means each of the Borrowers and each Guarantor,
individually, and "Obligated Parties" means two or more of such Persons,
collectively.
"Obligations" means (a) all present and future loans, advances,
liabilities, obligations, covenants, duties, and debts owing by the Obligated
Parties, or any of them, to the Agent, the Bank, the Letter of Credit Issuer,
each Indemnified Person, and the Lenders, arising under or pursuant to this
Agreement or any of the other Loan Documents, whether or not evidenced by any
note, or other instrument or document, whether arising from an extension of
credit, opening of a letter of credit, loan, guaranty, indemnification, or
otherwise, whether direct or indirect, absolute or contingent, due or to become
due, primary or secondary, as principal or guarantor, and including all
principal, interest, charges, expenses, fees, attorneys' fees (including
Attorney Costs), filing fees, and any other sums chargeable to any Obligated
Party hereunder or under any of the other Loan Documents (including, without
limitation, all interest, charges, expenses, fees,
26
and any other sums chargeable to any Obligated Party hereunder or under any of
the other Loan Documents that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency or
reorganization of any Obligated Party, whether or not the payment of such
interest, charges, expenses, fees, or other sums are unenforceable or are not
allowable due to the existence of such case, proceeding or other action), (b)
all debts, liabilities, and obligations owing by the Obligated Parties now or
hereafter arising from or in connection with the Letters of Credit and (c) all
debts, liabilities, and obligations owing by the Obligated Parties now or
hereafter arising from or in connection with Bank Products. All outstanding
Loans under the Existing Loan Agreement as of the date hereof shall be deemed to
be outstanding hereunder as of the date hereof and shall constitute Obligations
hereunder.
"Obsolete Equipment" means barges, towboats, vessels and other equipment
that, in the ordinary course of each of the Obligated Parties' business as
presently conducted, are damaged, obsolete, surplus or at the end of their
useful life, in each case as reasonably determined by the Obligated Parties.
"Other Taxes" means any present or future stamp or documentary taxes or
any other excise or property taxes, charges, or similar levies (excluding, in
the case of each Lender and the Agent, such taxes (including income taxes or
franchise taxes) as are imposed on or measured by each Lender's or the Agent's
gross or net income) that arise from any payment made hereunder or from the
execution, delivery, or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents.
"Participant" means any commercial bank, financial institution, or other
Person that is not an Affiliate of the Obligated Parties who shall have been
granted the right by any Lender to participate in the financing provided by such
Lender under this Agreement in accordance with the terms hereof, and who shall
have entered into a participation agreement in form and substance satisfactory
to such Lender.
"Patriot Act" means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Pub.
L. Xx. 000-00, 000 Xxxx. 000 (Xxx. 26, 2001)).
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means the Perfection Certificate substantially in
the form of Exhibit A to the Security Agreement.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within twelve
months from the date of acquisition thereof;
(b) without limiting the provisions of paragraph (d) below, investments in
commercial paper maturing within six months from the date of acquisition thereof
and having, at
27
such date of acquisition, a rating of at least "A-2" or the equivalent thereof
from Standard & Poor's Corporation or of at least "P-2" or the equivalent
thereof from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's acceptances and time
deposits (including Eurodollar time deposits) maturing within six months from
the date of acquisition thereof issued or guaranteed by or placed with (i) any
domestic office of the Agent or the bank with whom the Borrowers and the other
Obligated Parties maintain their cash management system, provided, that if such
bank is not a Lender hereunder, such bank shall have entered into an agreement
with the Agent pursuant to which such bank shall have waived all rights of
setoff and confirmed that such bank does not have, nor shall it claim, a
security interest therein or (ii) any domestic office of any other commercial
bank of recognized standing organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and
undivided profits of not less than $250,000,000 and is the principal banking
Subsidiary of a bank holding company having a long-term unsecured debt rating of
at least "A-2" or the equivalent thereof from Standard & Poor's Corporation or
at least "P-2" or the equivalent thereof from Xxxxx'x Investors Service, Inc.;
(d) investments in commercial paper maturing within six months from the
date of acquisition thereof and issued by (i) the holding company of the Agent
or (ii) the holding company of any other commercial bank of recognized standing
organized under the laws of the United States of America or any State thereof
that has (A) a combined capital and surplus in excess of $250,000,000 and (B)
commercial paper rated at least "A-2" or the equivalent thereof from Standard &
Poor's Corporation or of at least "P-2" or the equivalent thereof from Xxxxx'x
Investors Service, Inc.;
(e) investments in repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause (a) above
entered into with any office of a bank or trust company meeting the
qualifications specified in clause (c) above; and
(f) investments in money market funds substantially all the assets of
which are comprised of securities of the types described in clauses (a) through
(e) above.
"Permitted Liens" means Liens described in Section 6.02(a) through (m).
"Person" means any natural person, corporation, unincorporated
organization, business trust, joint venture, association, company, limited
liability company, partnership or government, or any agency or political
subdivision thereof.
"Plan" means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which Holdings or any ERISA Affiliate
is (or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Plan of Reorganization" shall mean the Chapter 11 Plan.
"Pledge Agreement" means the Pledge Agreement among the Obligated Parties
and the
28
Agent in the form of Exhibit E hereto.
"Pro Rata Share" means, with respect to a Lender, a fraction (expressed as
a percentage), the numerator of which is the amount of such Lender's Commitment
and the denominator of which is the sum of the amounts of all of the Lenders'
Commitments, or if no Commitments are outstanding, a fraction (expressed as a
percentage), the numerator of which is the amount of Loans owed to such Lender
and the denominator of which is the aggregate amount of the Loans owed to all
Lenders, in each case giving effect to a Lender's participation in Non-Ratable
Loans and Agent Advances.
"Pledge Agreement" means the Pledge Agreement among the Obligated Parties
and the Agent in the form of Exhibit E hereto.
"Quarterly Average Unused Availability" shall mean, at any time, the daily
average of the aggregate amount of the Unused Availability for the immediately
preceding quarter as calculated by Agent in good faith.
"Real Estate" means, with respect to any Person, such Person's now or
hereafter owned or leased estates in real property (as applicable), including
fees, leaseholds, and future interests, together with such Person's now or
hereafter owned or leased interests in the improvements thereon, the fixtures
attached thereto, and the easements appurtenant thereto.
"Regulation U" means Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Related Businesses" means the business of Holdings and its Subsidiaries
as conducted on the Closing Date and any business related, ancillary or
complementary thereto.
"Related Parties" means, with respect to any specified person, such
person's Affiliates and the respective directors, officers, employees, agents
and advisors of such person and such person's Affiliates.
"Releases" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Actions" means (a) "remedial action" as such term is defined in
CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) cleanup, remove, treat,
xxxxx or in any other way address any Hazardous Material in the environment;
(ii) prevent the Release or threat of Release, or minimize the further Release
of any Hazardous Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the environment; or (iii) perform studies and
investigations in connection with, or as a precondition to, (i) or (ii) above.
"Report" has the meaning specified in Section 8.17.
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"Required Lenders" At any time, (a) if there are two (2) Lenders or fewer,
Required Lenders shall mean all Lenders provided that if one of them is a
Defaulting Lender and one is not, Required Lenders shall mean the Lender who is
not a Defaulting Lender, and (b) if there are more than two (2) Lenders,
Required Lenders shall mean Lenders (other than Defaulting Lenders) whose Pro
Rata Shares aggregate more than 66 2/3% of the Commitments of all Lenders other
than Defaulting Lenders, provided that at any time there are three (3) Lenders
and none of them is a Defaulting Lender, "Required Lenders" shall mean at least
two Lenders whose Pro Rata Shares aggregate more than 66 2/3% of the Commitments
of all Lenders. A Defaulting Lender shall have no right to vote on any issue for
the purpose of making any determination of Required Lenders but a Defaulting
Lender shall be counted solely for the purpose of determining the number of
Lenders.
"Requirement of Law" means as to any Person, the certificate or articles
of incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case binding upon
such Person or any of its property or to which such Person or any of its
property is subject.
"Reserves" means any and all reserves that the Agent deems necessary in
its good faith credit judgment reasonably exercised to maintain with respect to
the Collateral or any Borrower that limit the availability of Borrowings
hereunder or that represent amounts the Agent or any Lender may be obligated to
pay in the future on behalf of a Borrower including (a) Bank Product Reserves,
(b) reserves for up to three (3) months of rent at each leased location where
any Collateral or the books and records of a Borrower are maintained or kept,
except to the extent the Agent has received a collateral access agreement in
form and substance reasonably satisfactory to Agent, (c) reserves for Inventory
shrinkage, (d) reserves for customs charges and shipping charges relating to any
Inventory in transit, (e) reserves for dilution of Accounts based upon Agent's
then current field examination or other financial information as reported to
Agent, (f) reserves for warehousemen's or bailees' charges, (g) reserves for
costs, charges and expenses necessary to complete freight, delivery or shipping
services in process, with the method of estimation to be determined by Agent,
(h) Maritime and Cost to Complete Reserves, and (i) reserves for taxes, fees,
assessments, and other governmental charges.
"Responsible Officer" means, with respect to any Obligated Party, the
chief executive officer, the president, the chief financial officer, the
treasurer, the director of finance, any vice president, or any other officer
having substantially the same authority and responsibility as any of the
foregoing.
"Revolving Loan Note" and "Revolving Loan Notes" have the meanings
specified in Section 2.01(b)(ii).
"Revolving Loans" has the meaning specified in Section 2.01(b)(i) and
includes each Agent Advance and Non-Ratable Loan.
"Secured Parties" shall have the meaning assigned to it in the Security
Agreement.
"Security Agreement" means the Security Agreement dated as of January 11,
2005
30
among the Obligated Parties and the Agent, as amended and restated pursuant to
the Amended and Restated Security Agreement dated of even date herewith in the
form of Exhibit C hereto.
"Security Documents" means the Mortgages, the Fleet Mortgages, the
Security Agreement, the Pledge Agreement, the Trademark Security Agreement and
each of the security agreements, mortgages and other instruments and documents
executed and delivered pursuant to any of the foregoing or pursuant to Section
4.01.
"Senior Notes" shall mean the 9.5% Senior Notes of ACL and ACL Finance
Corp. due 2015, the "Note Guarantees" (as defined in the Indenture), the
"Exchange Notes" (as defined in the Indenture) and the guarantees of such
Exchange Notes contemplated by the Indenture.
"Settlement" has the meaning specified in Section 8.14.
"Settlement Date" has the meaning specified in Section 8.14.
"Stated Termination Date" means February 11, 2010.
"subsidiary" means, with respect to any person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of any Obligated Party.
"Supporting Cash Deposit" has the meaning specified in Section 2.03
"Supporting Letter of Credit" has the meaning specified in Section 2.03.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan Agents" shall mean, collectively, the Tranche A Agent and the
Tranche B Agent.
"Term Loan Agreements" shall mean, collectively, the Tranche A Loan
Agreement, the Tranche B Loan Agreement, and all agreements, documents and
instruments at any time executed and/or delivered by any Obligated Party in
favor of Term Loan Agents or any Term Loan Lender in connection therewith or
related thereto.
"Term Loan Lenders" shall mean, collectively, the Tranche A Lenders and
the Tranche B Lenders.
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"Termination Date" means the earliest to occur of (a) the Stated
Termination Date, (b) the date the Commitments are terminated (i) by any
Borrower pursuant to Section 2.11(b) or (ii) pursuant to Section 10.01, and (c)
the date this Agreement is otherwise terminated for any reason whatsoever
pursuant to the terms of this Agreement.
"Tort Lien" has the meaning ascribed to such term in the Plan of
Reorganization.
"Tort Lien Notes" has the meaning ascribed to such term in the Plan of
Reorganization.
"Towboat Order" means the Order Granting Motion for Order Authorizing a
Process for the Sale of Boats entered by the Bankruptcy Court in the Cases on
July 14, 2004 and the Order Granting Motion for Order Amending the Kinzeler
Agreement and Authorizing a Process for the Sale of Tank Barges entered by the
Bankruptcy Court in the Cases on October 22, 2004.
"Tranche A Agent" shall mean JPMorgan Chase Bank, N.A., in its capacity as
Agent pursuant to the Tranche A Loan Agreement acting for the benefit and on
behalf of the Tranche A Lenders, and its successors and assigns (and including,
without limitation, any successor, assignee or additional person at any time
acting as agent for the benefit of or on behalf of it and/or Tranche A Lenders).
"Tranche A Lenders" shall mean, collectively, the lenders party from time
to time to the Tranche A Loan Agreement and their respective successors and
assigns; sometimes being referred to herein individually as a "Tranche A
Lender".
"Tranche A Loan Agreement" shall mean the Amended and Restated Loan
Agreement (Tranche A), dated January 13, 2005, by and among certain Obligated
Parties, the Tranche A Agent and the Tranche A Lenders.
"Tranche B Agent" shall mean The Bank of New York, in its capacity as
Agent pursuant to the Tranche B Loan Agreement acting for the benefit and on
behalf of Tranche B Lenders, and its successors and assigns (and including,
without limitation, any successor, assignee or additional person at any time
acting as agent for the benefit of or on behalf of it and/or Tranche B Lenders).
"Tranche B Lenders" shall mean, collectively, the lenders party from time
to time to the Tranche B Loan Agreement and their respective successors and
assigns); sometimes being referred to herein individually as a "Tranche B
Lender".
"Tranche B Loan Agreement" shall mean the Amended and Restated Loan
Agreement (Tranche B), dated January 13, 2005, by and among certain Obligated
Parties, the Tranche B Agent and the Tranche B Lenders.
"Transactions" means the restructuring of the Indebtedness under the
Existing Loan Agreement pursuant to the terms hereof, the issuance of the Senior
Notes and the repayment of the Indebtedness under the Term Loan Agreements.
"UBS" means, individually and collectively, UBS Loan Finance LLC, UBS
Securities LLC and any of their respective Affiliates.
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"UCC" means the Uniform Commercial Code (or any successor statute), as in
effect from time to time, of the State of New York or of any other state the
laws of which are required as a result thereof to be applied in connection with
the issue of perfection of security interests; provided that to the extent that
the UCC is used to define any term herein or in any other documents and such
term is defined differently in different Articles or Divisions of the UCC, the
definition of such term as contained in Article or Division 9 shall govern.
"Unused Availability" means, at any time, the Borrowing Base minus the
Aggregate Revolver Outstandings.
"Unused Letter of Credit Subfacility" means an amount equal to the Letter
of Credit Subfacility, minus the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit, plus, without duplication, (b) the aggregate
unpaid reimbursement obligations with respect to all Letters of Credit.
"Unused Line Fee" has the meaning specified in Section 2.13.
"Vessel Advance Amount" means the sum of (a) so long as NRG has the option
to purchase Vessels under the NRG Agreements, 37.5% of the Net Forced
Liquidation Value of two hundred (200) Eligible Vessels consisting of open
xxxxxx barges, calculated based upon the average Net Forced Liquidation Value of
all open xxxxxx barges, plus (b) 75% of the Net Forced Liquidation Value of all
remaining Eligible Vessels. Each of the foregoing percentages shall be reduced
on the first Anniversary Date and on each subsequent Anniversary Date by 2.5%
per annum.
"Vessel Appraisal" means a written appraisal of the Eligible Vessels
delivered to Agent, in form, scope and methodology reasonably acceptable to
Agent in good faith and by an appraiser reasonably acceptable to Agent,
addressed to Agent and upon which Agent and Lenders are expressly permitted to
rely. For purposes of this Agreement, except to the extent that circumstances or
conditions may hereafter change that make appropriate any change in the form,
scope or methodology of appraisals as Agent may determine in good faith, a
desktop appraisal update conducted by Xxxxxx, Xxxxxx & Xxxxxxx, Inc. in
alternate years subsequent to the recent appraisal (i.e. years 1, 3, 5, etc),
with inspections in each other year (2, 4, etc.) of a representative sample of
the fleet consisting of approximately 15% of the boats, 7.5% of the tankers, 5%
of the dry cargo barges, and a brief walk-around of several of the fleet
facilities, shall be acceptable to Agent.
"Vessel Financing" is defined in Section 6.01.
"Vessel Leasing" means Vessel Leasing LLC, a Delaware limited liability
company.
"Vessels" means the towboats, barges and other vessels owned or leased by
the Obligated Parties.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
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SECTION 1.02 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any person shall be construed to include such person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.03 Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if the
Borrowers notify the Agent that the Borrowers request an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Agent notifies the Borrowers that the Required Lenders request an
amendment to any provision hereof for such purpose), regardless of whether any
such notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
THE LOANS
SECTION 2.01 Loans.
(a) Credit Facilities. Subject to the terms and conditions of this
Agreement, the Lenders agree to make available credit facilities for use by the
Borrowers from time to time during the term of this Agreement. Such credit
facilities shall be composed of a revolving credit facility consisting of
Revolving Loans and Letters of Credit as described in Section 2.01(b) and
Section 2.03.
(b) Revolving Loans.
(i) Amounts. Subject to the terms and conditions of this Agreement,
each Lender severally, but not jointly, agrees, upon ACL's request on behalf of
the Borrowers, from time to time on any Business Day during the period from the
Closing Date to the Termination
34
Date, to make revolving loans (the "Revolving Loans") to the Borrowers in
amounts not to exceed such Lender's Pro Rata Share of the Commitments, provided,
however, that at no time shall Revolving Loans be made if, as a result thereof,
the Aggregate Revolver Outstandings would exceed the Borrowing Base.
Notwithstanding the proviso in the preceding sentence, the Lenders may, in their
unanimous discretion, elect to make Revolving Loans that would cause the
Aggregate Revolver Outstandings to exceed the Borrowing Base on one or more
occasions, but if they do so, neither the Agent nor the Lenders shall be deemed
thereby to have changed the limits of the Borrowing Base or to be obligated to
exceed such limits on any other occasion. If any requested Revolving Loan
exceeds the Unused Availability then the Lenders may refuse to make or may
otherwise restrict the making of such Revolving Loan, subject to the Agent's
authority, in its sole discretion, to make Agent Advances pursuant to the terms
of Section 2.01(b)(x).
(ii) Revolving Loan Notes. At the request of any Lender, Borrowers
shall execute and deliver to the Agent on behalf of each Lender a promissory
note to evidence the Revolving Loans of such Lender (each a "Revolving Loan
Note" and, collectively, the "Revolving Loan Notes"). Each Revolving Loan Note
shall be in the principal amount of the applicable Lender's Pro Rata Share of
the Commitments, dated as of the Closing Date or the date of any assignment of a
portion of any Lender's Revolving Loans, and substantially in the form of
Exhibit F. Each Revolving Loan Note shall represent the joint and several
obligation of the Borrowers to pay the amount of the applicable Lender's Pro
Rata Share of the aggregate unpaid principal amount of all Revolving Loans
together with interest thereon as prescribed in this Agreement.
(iii) Procedure for Borrowing.
(A) Each Borrowing of Revolving Loans shall be made upon ACL's
irrevocable written notice delivered to the Agent in a form of a
notice of borrowing as may be acceptable to the Agent in its sole
discretion (any such notice being referred to herein as a "Notice of
Borrowing"), which must be received by the Agent prior to 11:00 a.m.
(Chicago, Illinois time) (y) three Business Days prior to the
requested Funding Date, in the case of LIBOR Loans or (z) on the
requested Funding Date, in the case of Base Rate Loans, specifying:
(1) the amount of the Borrowing, which in the case of
LIBOR Loans shall be in an amount that is not less than One
Million Dollars ($1,000,000) or an integral multiple of One
Million Dollars ($1,000,000) in excess thereof;
(2) the requested Funding Date, which must be a Business
Day;
(3) whether the Revolving Loans requested are to be Base
Rate Loans or LIBOR Loans; provided that if ACL fails to
specify whether any Revolving Loans are to be Base Rate Loans
or LIBOR Loans, such request shall be deemed a request for
Base Rate Loans; and
35
(4) if the requested Revolving Loans are to be LIBOR
Loans, the duration of the Interest Period; provided that if
ACL fails to select the duration of the Interest Period with
respect to any requested LIBOR Loans, ACL shall be deemed to
have requested such Revolving Loans be made as LIBOR Loans
with an Interest Period of one month in duration.
provided that with respect to the Borrowing to be made on the Closing Date, such
Borrowing will consist of Base Rate Loans only.
(B) With respect to any request for Base Rate Loans, in lieu
of delivering a Notice of Borrowing, ACL may give the Agent
telephonic notice of such request for advances to the Funding
Account not later than the required time specified in clause (A)
preceding. The Agent at all times shall be entitled to rely on such
telephonic notice in making any such Revolving Loans, regardless of
whether any written confirmation is received by the Agent.
(C) Whenever checks or other items are presented to the Bank
for payment against the Funding Account or any other Deposit Account
maintained by any Borrower with the Bank in an amount greater than
the then available balance in the Funding Account or such other
Deposit Account, such presentation may, at the election of the Agent
in its sole discretion, be deemed to be a request by such Borrower
for a Base Rate Loan on the date of such presentation in an amount,
subject to clause (iii)(A) preceding, sufficient to cover all such
items presented in the Funding Account or such other Deposit Account
on such date.
(D) At the election of the Agent or the Majority Lenders, the
Borrowers shall have no right to request LIBOR Loans during the
continuance of any Default or Event of Default.
(iv) Disbursement. On the Closing Date, the Borrowers shall deliver
to the Agent a notice setting forth the deposit account maintained with the Bank
(the "Funding Account") to which the Agent is authorized by the Borrowers to
transfer the proceeds of the Revolving Loans requested hereunder. The Borrowers
may designate a replacement Funding Account from time to time by written notice
to the Agent. Any designation by the Borrowers of the Funding Account must be
reasonably acceptable to the Agent.
(v) Reliance Upon Authority; No Liability. The Agent is entitled to
rely conclusively on any individual's request for Revolving Loans on behalf of
the Borrowers, as long as the proceeds thereof are to be transferred to the
Funding Account. The Agent has no duty to verify the identity of any individual
representing himself or herself as a person authorized by the Borrowers to make
such requests on its behalf. The Agent shall not incur any liability to the
Borrowers as a result of acting upon any notice referred to in Section
2.01(b)(iii) and Section 2.01(b)(iv), which the Agent reasonably believes to
have been given by an officer or other person duly authorized by a Borrower to
request Revolving Loans on its behalf or for otherwise acting under this Section
2.01(b), as long as the proceeds thereof are to be transferred to the Funding
Account. The crediting of Revolving Loans to the Funding Account shall
conclusively establish the obligation of the Borrowers to repay such Revolving
Loans as provided herein.
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(vi) Notice Irrevocable. Any Notice of Borrowing (or telephonic
notice in lieu thereof) made pursuant to Section 2.01(b)(iii) shall be
irrevocable and the Borrowers shall be bound to borrow the funds requested
therein in accordance therewith.
(vii) The Agent's Election. Promptly after receipt of a Notice of
Borrowing (or telephonic notice in lieu thereof), the Agent shall elect in its
discretion to have the terms of Section 2.01(b)(viii), Section 2.01(b)(ix), or
Section 2.01(b)(x) apply to such requested Borrowing. If the Bank declines in
its sole discretion to make a Non-Ratable Loan pursuant to Section 2.01(b)(ix),
the terms of Section 2.01(b)(viii) shall apply to the requested Borrowing unless
such requested Borrowing is to be made by the Agent as an Agent Advance pursuant
to Section 2.01(b)(x).
(viii) Making of Revolving Loans. If the Agent elects to have the
terms of this Section 2.01(b)(viii) apply to a requested Borrowing, then
promptly after receipt of a Notice of Borrowing or telephonic notice in lieu
thereof, the Agent shall notify the Lenders by telecopy, telephone, or e-mail of
the requested Borrowing. Each Lender shall transfer its Pro Rata Share of the
requested Borrowing to the Agent in immediately available funds, to the account
from time to time designated by the Agent, not later than 1:00 p.m. (Chicago,
Illinois time) on the applicable Funding Date. After the Agent's receipt of all
proceeds of such requested Borrowing, the Agent shall make the proceeds of such
requested Borrowing available to the Borrowers on the applicable Funding Date by
transferring same day funds to the Funding Account. Unless the Lenders in their
unanimous discretion consent otherwise, no Borrowing under this clause (viii)
shall be permitted if the requested Borrowing exceeds the Unused Availability on
the applicable Funding Date prior to giving effect to such requested Borrowing.
(ix) Making of Non-Ratable Loans. If the Agent elects, with the
consent of the Bank, to have the terms of this Section 2.01(b)(ix) apply to a
requested Borrowing, the Bank shall make a Revolving Loan in the amount of such
requested Borrowing available to the Borrowers on the applicable Funding Date by
transferring same day funds to the Funding Account. Each Revolving Loan made
solely by the Bank pursuant to this Section 2.01(b)(ix) is referred to
hereinafter as a "Non-Ratable Loan," and such Revolving Loans are collectively
referred to as the "Non-Ratable Loans." Each Non-Ratable Loan shall be subject
to all the terms and conditions applicable to other Revolving Loans except that
all payments of principal and interest thereon shall be payable to the Bank
solely for its own account. The Agent shall not request the Bank to make any
Non-Ratable Loan if (A) the Agent has received written notice from any Lender
that one or more of the applicable conditions precedent set forth in Article IV
will not be satisfied on the requested Funding Date for the applicable Borrowing
or (B) the requested Borrowing exceeds the Unused Availability on the applicable
Funding Date prior to giving effect to such requested Borrowing. The Non-Ratable
Loans shall be secured by the Agent's Liens in and to the Collateral and shall
constitute Obligations hereunder.
(x) Agent Advances. Subject to the limitations set forth below, the
Agent is authorized by the Borrowers and the Lenders, from time to time in the
Agent's sole discretion, after the occurrence of a Default or an Event of
Default or at any time that any of the other conditions precedent set forth in
Article IV have not been satisfied, to make Base Rate Loans to the Borrowers on
behalf of the Lenders in an aggregate amount outstanding at any time not to
exceed Fifteen Million Dollars ($15,000,000), which the Agent, in its reasonable
business
37
judgment, deems necessary or desirable (A) to preserve or protect the
Collateral, or any portion thereof, (B) to enhance the likelihood of, or
maximize the amount of, repayment of the Loans and other Obligations (including
through the Borrowers using any proceeds of such Revolving Loans to pay payroll
and associated tax obligations), or (C) to pay any other amount chargeable to
the Borrowers pursuant to the terms of this Agreement, including costs, fees,
and expenses as described in Section 9.04 (any of such advances are herein
referred to as "Agent Advances"); provided that, after giving effect to the
making of any Agent Advance, the Aggregate Revolver Outstandings shall not
exceed the Maximum Revolver Amount. The Required Lenders may at any time revoke
the Agent's authorization to make Agent Advances. Any such revocation must be in
writing and shall become effective prospectively upon the Agent's receipt
thereof. The Agent Advances shall be secured by the Agent's Liens in and to the
Collateral and shall constitute Base Rate Loans and Obligations hereunder.
SECTION 2.02 Continuation and Conversion Elections.
(a) A Borrower may upon irrevocable written notice to the Agent in
accordance with Section 2.01(b):
(i) provided that a Borrowing of LIBOR Loans is permitted pursuant
to Section 2.01(b), elect, as of any Business Day, in the case of Base Rate
Loans to convert any such Base Rate Loans (or any part thereof in an amount not
less than One Million Dollars ($1,000,000), or that is in an integral multiple
of One Million Dollars ($1,000,000) in excess thereof) into LIBOR Loans;
(ii) provided that a Borrowing of LIBOR Loans is permitted pursuant
to Section 2.01(b), elect, as of the last day of the applicable Interest Period,
to continue any LIBOR Loans having Interest Periods expiring on such day (or any
part thereof) in an amount not less than One Million Dollars ($1,000,000), or
that is in an integral multiple of One Million Dollars ($1,000,000) in excess
thereof as LIBOR Loans; or
(iii) elect, as of any Business Day, in the case of LIBOR Loans to
convert any such LIBOR Loans (or any part thereof not being continued pursuant
to clause (ii) preceding) into Base Rate Loans;
provided that if at any time the aggregate amount of LIBOR Loans in respect of
any Borrowing is reduced, by payment, prepayment, or conversion of part thereof,
to less than One Million Dollars ($1,000,000), such LIBOR Loans shall
automatically convert into Base Rate Loans; and provided, further, that if the
notice shall fail to specify the duration of the Interest Period of any LIBOR
Loan to result from any such continuation or conversion, such Interest Period
shall be one month in duration.
(b) For any continuation or conversion pursuant to clause (a) preceding,
ACL shall deliver a notice of continuation/conversion in the form of Exhibit G
or such other form as may be acceptable to the Agent in its sole discretion (any
such notice being referred to herein as a "Notice of Continuation/Conversion")
to the Agent not later than 11:00 a.m. (Chicago, Illinois time) at least three
Business Days in advance of the Continuation/Conversion Date specifying:
(i) the proposed Continuation/Conversion Date;
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(ii) the aggregate amount of such Loans to be continued or converted
and, if continuing LIBOR Loans, the specific Borrowings (or portions thereof) to
be continued or converted;
(iii) the type of Loans resulting from the proposed continuation or
conversion; and
(iv) the duration of any requested Interest Period, provided,
however, the Borrowers may not select an Interest Period that ends after the
Stated Termination Date.
(c) If upon the expiration of any Interest Period applicable to LIBOR
Loans, the Borrowers have failed to timely select a new Interest Period to be
applicable to such LIBOR Loans, the Borrowers shall be deemed to have elected to
continue such LIBOR Loans as a LIBOR Loan with an Interest Period of one month.
(d) The Agent will promptly notify each Lender of its receipt of a Notice
of Continuation/Conversion. All continuations and conversions shall be made
ratably according to the respective outstanding principal amounts of the Loans
held by each Lender with respect to which such notice was given.
(e) After giving effect to any continuation or conversion of any LIBOR
Loan, there may not be more than eight (8) different Interest Periods in effect
hereunder.
(f) At the election of the Agent or the Majority Lenders, the Borrowers
shall have no right to convert any Base Rate Loans into LIBOR Loans or to
continue any LIBOR Loans as LIBOR Loans during the continuance of any Default or
any Event of Default.
SECTION 2.03 Letters of Credit.
(a) Agreement to Cause to Issue. Subject to the terms and conditions of
this Agreement, the Agent agrees to cause the Letter of Credit Issuer to issue
for the account of the Borrowers (whether one or more) one or more
commercial/documentary letters of credit and standby letters of credit (each a
"Letter of Credit" and collectively, the "Letters of Credit") from time to time
during the term of this Agreement.
(b) Amounts; Outside Expiration Date. The Agent shall not cause to be
issued any Letter of Credit at any time if: (i) the maximum face amount of the
requested Letter of Credit is greater than the Unused Letter of Credit
Subfacility at such time; (ii) the maximum undrawn amount of the requested
Letter of Credit and all commissions, fees, and charges due from the Borrowers
in connection with the opening thereof exceeds the Unused Availability prior to
giving effect to issuance of such requested Letter of Credit; (iii) such Letter
of Credit has an expiration date later than 30 days prior to the Stated
Termination Date; or (iv) such Letter of Credit has an expiration date later
than twelve calendar months from the date of issuance for standby letters of
credit and six calendar months from the date of issuance for
commercial/documentary letters of credit, provided that any Letter of Credit
issued hereunder may, subject to this clause (iv) and the other provisions of
this Section 2.03, include an "evergreen" or automatic renewal provision of the
type referenced in Section 2.03(d)(iii) without contravening the requirement
contained in this Section 2.03(b).
39
(c) Other Conditions. In addition to being subject to the satisfaction of
the applicable conditions precedent contained in Article IV, the obligation of
the Agent to cause any Letter of Credit to be issued is subject to the following
conditions precedent having been satisfied in a manner satisfactory to the Agent
and the Letter of Credit Issuer:
(i) the Borrowers shall have delivered to the Letter of Credit
Issuer, at such times and in such manner as the Letter of Credit Issuer may
prescribe, an application in form and substance satisfactory to the Letter of
Credit Issuer and reasonably satisfactory to the Agent for the issuance of the
Letter of Credit and such other documents as may be required pursuant to the
terms thereof, and the form and terms of the proposed Letter of Credit shall be
reasonably satisfactory to the Agent and the Letter of Credit Issuer (provided
that in the event any term of such application or any other document is
inconsistent with the terms of this Agreement and the Letter of Credit Issuer is
either the same Person as the Agent or any Lender, then the terms of this
Agreement shall be controlling); and
(ii) as of the date of issuance, no order of any court, arbitrator,
or Governmental Authority shall purport by its terms to enjoin or restrain money
center banks generally from issuing letters of credit of the type and in the
amount of the proposed Letter of Credit, and no law, rule, or regulation
applicable to money center banks generally and no request or directive (whether
or not having the force of law) from any Governmental Authority with
jurisdiction over money center banks generally shall prohibit, or request that
the Letter of Credit Issuer refrain from, the issuance of letters of credit
generally or the issuance of such Letter of Credit.
(d) Issuance of Letters of Credit.
(i) Request for Issuance. A Borrower, if it wishes to cause the
issuance of a Letter of Credit, shall notify the Agent and the Letter of Credit
Issuer of such request for issuance at least three Business Days prior to the
proposed issuance date. Such notice shall be irrevocable and must specify the
original face amount of the Letter of Credit requested, the Business Day of
issuance of such requested Letter of Credit, whether such Letter of Credit may
be drawn in a single or in partial draws, the Business Day on which the
requested Letter of Credit is to expire, the purpose for which such Letter of
Credit is to be issued, and the beneficiary of the requested Letter of Credit.
The Borrower shall attach to such notice the proposed form of the Letter of
Credit.
(ii) Responsibilities of the Agent; Issuance. As of the Business Day
immediately preceding the requested issuance date of the Letter of Credit set
forth in the notice from a Borrower pursuant to Section 2.03(d)(i), the Agent
shall determine (A) the amount of the Unused Letter of Credit Subfacility and
(B) the Unused Availability. If the face amount of the requested Letter of
Credit is not greater than the Unused Letter of Credit Subfacility (prior to
giving effect to issuance of such requested Letter of Credit) and the amount of
such requested Letter of Credit and all commissions, fees, and charges due from
the Borrowers in connection with the opening thereof do not exceed the Unused
Availability (prior to giving effect to issuance of such requested Letter of
Credit), the Agent shall cause the Letter of Credit Issuer to issue the
requested Letter of Credit on the requested issuance date if the other
conditions hereof and of the application for such requested Letter of Credit are
met.
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(iii) Extensions and Amendments. The Agent shall not be obligated to
cause the Letter of Credit Issuer to extend, renew, or amend any Letter of
Credit issued pursuant hereto unless the requirements of this Section 2.03(d)
are met as though a new Letter of Credit were being requested and issued. With
respect to any Letter of Credit that contains any "evergreen" or automatic
renewal provision, each Lender shall be deemed to have consented to any such
extension or renewal unless such Lender shall have provided to the Agent and the
Borrowers written notice that such Lender declines to consent to any such
extension or renewal at least 30 days prior to the date on which the Letter of
Credit Issuer is entitled to decline to extend or renew such Letter of Credit;
provided that, notwithstanding the foregoing, if all of the requirements of this
Section 2.03(d) are met and no Event of Default has occurred and is continuing,
no Lender may decline to consent to any such extension or renewal.
(e) Payments Pursuant to Letters of Credit. The Borrowers agree to
reimburse the Letter of Credit Issuer immediately for any draw under any Letter
of Credit and to pay the Letter of Credit Issuer the amount of all other charges
and fees payable to the Letter of Credit Issuer under or in connection with any
Letter of Credit immediately when due, irrespective of any claim, setoff,
defense, or other right that the Borrowers may have at any time against the
Letter of Credit Issuer or any other Person. Each drawing under any Letter of
Credit shall constitute a request by the Borrowers for a Borrowing of a Base
Rate Loan in the amount of such drawing. The Funding Date with respect to such
Borrowing shall be the date of such drawing.
(f) Indemnification; Exoneration; Power of Attorney.
(i) Indemnification. In addition to amounts payable as elsewhere
provided in this Section 2.03(f), the Borrowers agree to protect, indemnify,
pay, and save the Lenders, the Agent, and the Letter of Credit Issuer harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges, and expenses (including reasonable attorneys' fees) that any
Lender, the Agent, or the Letter of Credit Issuer may incur or be subject to as
a consequence, direct or indirect, of the issuance of any Letter of Credit. The
foregoing indemnity shall not apply to the Letter of Credit Issuer to the extent
of any wrongful honor or dishonor of a drawing against any Letter of Credit. The
Borrowers' obligations under this Section 2.03(f) shall survive payment of all
other Obligations.
(ii) Assumption of Risk by the Borrowers. As among the Borrowers,
the Lenders, the Agent, and the Letter of Credit Issuer, the Borrowers assume
all risks of the acts and omissions of, or misuse of any of the Letters of
Credit by, the respective beneficiaries of such Letters of Credit. In
furtherance and not in limitation of the foregoing, the Lenders, the Agent, and
the Letter of Credit Issuer shall not be responsible for: (A) the form,
validity, sufficiency, accuracy, genuineness, or legal effect of any document
submitted by any Person in connection with the application for and issuance of
and presentation of drafts with respect to any of the Letters of Credit, even if
it should prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent, or forged; (B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason; (C) the
failure of the beneficiary of any Letter of Credit to comply duly with
conditions required in order to draw upon such Letter of Credit; (D) errors,
omissions, interruptions, or delays in transmission or delivery of any messages,
by mail, cable, telegraph,
41
telex, or otherwise, whether or not they be in cipher; (E) errors in
interpretation of technical terms; (F) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any Letter
of Credit or of the proceeds thereof; (G) the misapplication by the beneficiary
of any Letter of Credit of the proceeds of any drawing under such Letter of
Credit; or (H) any consequences arising from causes beyond the control of the
Lenders, the Agent, or the Letter of Credit Issuer, including any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto Governmental Authority; provided that in the case of the Letter of Credit
Issuer, the Letter of Credit Issuer has paid the applicable beneficiary on the
Letter of Credit against the presentation of drafts and certificates that appear
on their face to comply with the requirements of such Letter of Credit. The
Lenders and the Agent shall not be responsible for the Letter of Credit Issuer's
honor of a draw for which the draw or any certificate fails to comply in any
respect with the terms of the Letter of Credit. None of the foregoing shall
affect, impair, or prevent the vesting of any rights or powers of the Agent, any
Lender, or, subject to Section 2.03(f)(iv), the Letter of Credit Issuer under
this Section 2.03(f).
(iii) Exoneration. Without limiting the foregoing, no action or
omission whatsoever by the Agent, any Lender, or the Letter of Credit Issuer
under or in connection with any of the Letters of Credit or any related matters
shall result in any liability of the Agent, any Lender, or the Letter of Credit
Issuer to the Borrowers, or relieve the Borrowers of any of the Borrowers'
obligations hereunder to any such Person.
(iv) Rights Against the Letter of Credit Issuer. Nothing contained
in this Section 2.03(f) is intended to limit a Borrower's rights, if any, with
respect to the Letter of Credit Issuer that arise as a result of the letter of
credit application and related documents executed by and between such Borrower
and the Letter of Credit Issuer, the issuance of the Letter of Credit, or the
Letter of Credit Issuer's wrongful honor or wrongful dishonor of any draw on a
Letter of Credit.
(v) Account Party. Each Borrower hereby authorizes and directs the
Letter of Credit Issuer to name the applicable Borrower as the "Account Party"
in any Letter of Credit and to deliver to the Agent all instruments, documents,
and other writings and property received by the Letter of Credit Issuer pursuant
to each such Letter of Credit, and to accept and rely upon Agent's or the
Borrower's instructions and agreements with respect to all matters arising in
connection with each such Letter of Credit or the application therefor.
(g) Supporting Letter of Credit; Cash Collateral. If, notwithstanding the
provisions of Section 2.03(b) and Section 10.01, any Letter of Credit is
outstanding upon the termination of this Agreement, then upon such termination
the Borrowers shall deposit with the Agent, for the benefit of the Agent, the
Letter of Credit Issuer, and the Lenders, with respect to each such Letter of
Credit then outstanding, either (i) a standby letter of credit (a "Supporting
Letter of Credit") in form and substance satisfactory to the Agent, issued by an
issuer satisfactory to the Agent in its sole discretion in an amount equal to
105% of the undrawn face amount of such Letter of Credit, plus any fees and
expenses associated with such Letter of Credit, under which Supporting Letter of
Credit the Agent is entitled to draw amounts necessary to reimburse the Agent,
the Letter of Credit Issuer, and the Lenders (as applicable) for payments to be
made by the Letter of Credit Issuer under such Letter of Credit and any fees and
expenses associated with such Letter of Credit or (ii) cash (a "Supporting Cash
Deposit") in an amount equal to 105% of the undrawn
42
face amount of such Letter of Credit, plus any fees and expenses associated with
such Letter of Credit. Such Supporting Letter of Credit or Supporting Cash
Deposit shall be held by the Agent, for the benefit of the Agent, the Letter of
Credit Issuer, and the Lenders, as security for, and to provide for the payment
of, the aggregate undrawn amount of such Letters of Credit remaining
outstanding.
SECTION 2.04 Bank Products. The Borrowers may obtain Bank Products from any
Lender or any of their respective Affiliates, although the Borrowers are not
required to do so. To the extent Bank Products are provided by an Affiliate of
any Lender, Borrowers agree to indemnify and hold the Agent and Lenders harmless
from any and all costs and obligations now or hereafter incurred by any of the
Credit Providers which arise from any indemnity given by any Lender to any of
their respective Affiliates related to such Bank Products; provided, however,
nothing contained herein is intended to limit any Borrower's rights, with
respect to any Lender or any Lender's Affiliates, if any, that arise as a result
of the execution of documents by and between such Borrower and any Lender or
such Lender's Affiliates that relate to Bank Products. The agreement contained
in this Section 2.04 shall survive termination of this Agreement. The Borrowers
acknowledge and agree that the obtaining of Bank Products from any Lender or
such Lender's Affiliates (a) is in the sole and absolute discretion of such
Lender or such Lender's Affiliates, and (b) is subject to all rules and
regulations of such Lender or such Lender's Affiliates.
SECTION 2.05 Mandatory Prepayments.
(a) On any Business Day, if the Aggregate Revolver Outstandings exceed the
Borrowing Base, the Borrowers shall immediately pay to the Agent, for the
account of the Lenders, the amount (if any) of such excess for application to
the principal amount of the Revolving Loans.
(b) The Borrowers shall pay to the Agent, for the account of the Lenders,
the Net Cash Proceeds from any Asset Sale of any Collateral, (other than of the
Borrowers' Inventory in the ordinary course of business), the net Casualty
Proceeds or net Condemnation Proceeds and the Net Cash Proceeds from any Equity
Issuance, unless, so long as no Default or Event of Default exists and is
continuing, such Net Cash Proceeds from an Equity Issuance are used (i) by an
Obligated Party to make an investment in a Subsidiary established to effect a
Vessel Financing, or (ii) to redeem Senior Notes in accordance with Section 3.07
of the Indenture. (If a Default or Event of Default exists and is continuing,
Obligated Parties shall not be permitted to use any Net Cash Proceeds from an
Equity Issuance as otherwise permitted under this Section 2.05(b)) Such proceeds
shall be applied against the Obligations in such order and manner as Agent shall
elect, and, subject to the terms of this Agreement and, the Borrowers' right to
reborrow prior to the Termination Date. No provision contained in this Section
2.05 shall constitute a consent to an asset disposition or to any other
transaction that is otherwise not permitted by the terms of this Agreement.
SECTION 2.06 Interest.
(a) Interest Rates. All outstanding Obligations shall bear interest on the
unpaid principal amount thereof (including, to the extent permitted by law, on
accrued interest thereon
43
not paid when due) from the date made or incurred until paid in full in cash or
cash equivalent at a rate determined by reference to the Base Rate or the LIBOR,
as applicable, plus the Applicable Margin as set forth below, but not to exceed
the Maximum Rate. If at any time Loans are outstanding with respect to which a
Borrower has not delivered to the Agent a notice specifying the basis for
determining the interest rate applicable thereto in accordance herewith, such
Loans shall be Base Rate Loans and bear interest at a rate determined by
reference to the Base Rate until notice to the contrary has been given to the
Agent in accordance with this Agreement and such notice has become effective.
Except as otherwise provided herein, the outstanding Obligations shall bear
interest as follows:
(i) for all Base Rate Loans and other Obligations (other than LIBOR
Loans) at a fluctuating per annum rate equal to the lesser of (A) the Base Rate,
plus the Applicable Margin or (B) the Maximum Rate; and
(ii) for all LIBOR Loans at a per annum rate equal to the lesser of
(A) the LIBOR, plus the Applicable Margin or (B) the Maximum Rate.
(iii) Each change in the Base Rate shall be reflected in the
interest rate described in clause (i) preceding as of the effective date of such
change. Subject to Section 9.14, all interest charges on the Obligations shall
be computed on the basis of a year of 360 days and actual days elapsed (which
results in more interest being paid than if computed on the basis of a 365 day
year), except that interest based on the Base Rate shall be calculated on the
basis of actual number of days elapsed in a year of 365/366 days.
(b) Interest Payments. The Borrowers shall pay to the Agent, for the
benefit of the Lenders, accrued interest in arrears on each Interest Payment
Date, as applicable.
(c) Default Rate. During the existence of any Event of Default if the
Agent or the Majority Lenders in their discretion so elect, the Obligations
shall, subject to Section 9.14, bear interest at a rate per annum equal to the
lesser of (i) the Default Rate applicable thereto or (ii) the Maximum Rate.
SECTION 2.07 Use of Proceeds. Borrowers shall apply the proceeds of (a) Loans
made on the Closing Date to pay a portion of the Indebtedness payable under the
Term Loan Agreements outstanding as of the date hereof and to pay fees and
expenses relating to this transaction, and (b) Loans made on and after the
Closing Date to provide for their respective working capital needs and other
general corporate purposes.
SECTION 2.08 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement reflected
in LIBOR); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or LIBOR Loans made by such Lender;
44
(iii) and the result of any of the foregoing shall be to increase
the cost to such Lender of making or maintaining any LIBOR Loan or to reduce the
amount of any sum received or receivable by such Lender (whether of principal,
interest or otherwise), then the Borrowers will pay to such Lender such
additional amount or amounts as will compensate such Lender for such additional
costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender, to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrowers will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as specified in
paragraph (a) or (b) of this Section shall be delivered to the Borrowers and
shall be conclusive absent manifest error. The Borrowers shall pay such Lender,
the amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrowers shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender
notifies the Borrowers of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.09 Break Funding Payments. In the event of (a) the payment of any
principal of any LIBOR Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion of any LIBOR Loan other than on the last day of the Interest Period
applicable thereto or (c) the assignment of any LIBOR Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by
the Borrowers pursuant to Section 2.12, then the Borrowers shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case of
a LIBOR Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at LIBOR that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period
45
from other banks in the eurodollar market. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrowers and shall be conclusive absent
manifest error. Borrowers shall pay such Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.
SECTION 2.10 Taxes.
(a) Any and all payments by or on account of any obligation of the
Borrowers hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrowers shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Agent or Lender (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrowers shall make such deductions and (iii) the Borrowers shall pay the
full amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrowers shall indemnify the Agent and each Lender within 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Agent or such Lender, as the case may be, on or with
respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrowers or by a Lender, or by
the Agent on its own behalf or on behalf of a Lender, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrowers to a Governmental Authority, the Borrowers shall deliver
to the Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to the
Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrowers are
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrowers (with a copy to the
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrowers as will permit such payments to be made without
withholding or at a reduced rate In addition, such Foreign Lender, if requested
by the Borrower or the Agent, shall deliver such other documentation prescribed
by applicable law or reasonably requested by the Borrower or the Agent as will
enable the Borrower or the Agent to determine
46
whether or not such Foreign Lender is subject to backup withholding or
information reporting requirements.
(f) If the Agent or a Lender determines, in its reasonable business
judgment, that it has received a refund of any Taxes or Other Taxes as to which
it has been indemnified by the Borrowers or with respect to which the Borrowers
has paid additional amounts pursuant to this Section 2.10, it shall pay over
such refund to the Borrowers (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrowers under this Section 2.10 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, that the Borrowers, upon the request of the Agent or
such Lender, agree to repay the amount paid over to the Borrowers (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Agent or such Lender in the event the Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall
not be construed to require the Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Obligated Parties or any other person.
SECTION 2.11 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Repayment.
(i) Revolving Loans. The Borrowers shall repay the outstanding
principal balance of the Revolving Loans, together with all other non-contingent
Obligations, including all accrued and unpaid interest thereon, on the
Termination Date (or with respect to any Bank Products, any applicable earlier
date). The Borrowers may prepay the Revolving Loans, in whole or in part, at any
time and from time to time and, subject to the terms of this Agreement, reborrow
prior to the Termination Date.
(ii) Payments. All payments to be made by the Borrowers with respect
to the Loans shall be made without setoff, recoupment, or counterclaim. Unless
otherwise expressly provided herein, all payments by the Borrowers shall be made
to the Agent, for the account of the Lenders, to the account designated by the
Agent and shall be made in Dollars and in immediately available funds, no later
than 12:00 noon (Chicago, Illinois time) on the date specified herein. Any
payment received by the Agent after such time shall be deemed to have been
received on the following Business Day and any applicable interest or fee shall
continue to accrue.
(iii) Loan Payment Dates. Subject to the provisions set forth in the
definition of Interest Period, whenever any payment is due on a day other than a
Business Day, such payment shall be due on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(b) Termination of Credit Facilities. The Borrowers may terminate this
Agreement upon at least five (5) Business Days prior written notice thereof to
the Agent, upon (i) the payment in full of all outstanding Revolving Loans,
together with accrued and unpaid interest thereon, and the cancellation and
return of all outstanding Letters of Credit (or alternatively with
47
respect to each such Letter of Credit, the furnishing to the Agent of either a
Supporting Cash Deposit or a Supporting Letter of Credit as required by Section
2.03(g)), and (ii) the payment in full of all reimbursable expenses and other
non-contingent Obligations together with accrued and unpaid interest thereon.
(c) LIBOR Loan Prepayments. In connection with any prepayment, if any
LIBOR Loans are prepaid prior to the expiration date of the Interest Period
applicable thereto, the Borrowers shall pay to the Agent, for the benefit of the
Lenders, the amounts described in Section 2.11(h), provided that the Borrowers
shall not be required to pay the amounts described in Section 2.11(h) in
connection with any Lender's entering into an Assignment and Acceptance.
(d) Payments as Revolving Loans. At the election of the Agent, all
payments of principal, interest, reimbursement obligations in connection with
Letters of Credit, fees, premiums, reimbursable expenses (including all
reimbursement for expenses pursuant to Section 2.13), other sums payable under
the Loan Documents, and any and all amounts equal to the excess of checks and
other items presented to the Bank for payment against the Funding Account or any
other Deposit Account maintained by a Borrower with the Bank over the then
available balance in such Funding Account or Deposit Account may be paid with
the proceeds of Revolving Loans made hereunder whether made following a request
for such purpose by the Borrowers pursuant to Section 2.01(b) or pursuant to a
deemed request as provided in this Section 2.11(d). The Borrowers hereby
irrevocably authorize the Agent to charge the Loan Account for the purpose of
paying all amounts from time to time due under the Loan Documents (including as
described in this Section 2.11(d)) and agree that all such amounts charged shall
constitute Revolving Loans (including Non-Ratable Loans and Agent Advances) and
that all such Revolving Loans shall be deemed to have been requested pursuant to
Section 2.01(b).
(e) Apportionment, Application, and Reversal of Payments.
(i) Principal and interest payments shall be apportioned ratably
among the Lenders (according to the unpaid principal balance of the Loans to
which such payments relate held by each Lender) and payments of the fees shall,
as applicable, be apportioned ratably among the Lenders, except for fees payable
solely to the Agent, the Bank, and the Letter of Credit Issuer and except as
provided in Section 9.03(d).
(ii) Except as provided otherwise in this Agreement, all payments
shall be remitted to the Agent and all such payments not relating to principal
or interest of specific Loans, or not constituting payment of specific fees, and
all proceeds of each Borrower's Accounts or any other Collateral received by the
Agent, shall be applied, ratably, subject to the other provisions of this
Agreement, FIRST, to pay any fees, indemnities, or expense reimbursements, then
due to the Agent from the Borrowers, SECOND, to pay any fees, indemnities, or
expense reimbursements then due to any of the Credit Providers other than the
Agent from the Borrowers, THIRD, to pay interest then due in respect of the
Loans, including Non-Ratable Loans and Agent Advances, FOURTH, to pay or prepay
principal of the Non-Ratable Loans and the Agent Advances, FIFTH, to pay or
prepay principal of the Revolving Loans (other than the Non-Ratable Loans and
the Agent Advances) and unpaid reimbursement obligations in respect of Letters
of Credit, SIXTH, during the existence of a Default or an Event of Default, to
pay an amount to the Agent equal to 105% of the aggregate undrawn face amount of
all outstanding
48
Letters of Credit and the aggregate amount of any unpaid reimbursement
obligations in respect of Letters of Credit, to be held as cash collateral for
such Obligations, SEVENTH, to pay any amounts relating to Bank Products due to
the Agent or any Lender or any Affiliate of any Lender by the Borrowers, and
EIGHTH, to the payment of any other Obligation. Subject to items "first" through
"eighth" preceding, the Agent and the Lenders shall have the continuing and
exclusive right to apply and reverse and reapply any and all such proceeds and
payments to any portion of the Obligations.
(iii) Notwithstanding anything to the contrary contained in this
Agreement, unless so directed by the Borrowers, or unless an Event of Default is
in existence, neither the Agent nor any Lender shall apply any payment which it
receives to any LIBOR Loan, except (A) on the expiration date of the Interest
Period applicable to any such LIBOR Loan or (B) in the event, and only to the
extent, that there are no outstanding Base Rate Loans and, in any such event,
the Borrowers shall pay the LIBOR breakage losses in accordance with the terms
hereof.
(f) Indemnity for Returned Payments. If after receipt of any payment that
is applied to the payment of all or any part of the Obligations, any Credit
Provider is for any reason compelled to surrender such payment or proceeds to
any Person because such payment or application of proceeds is invalidated,
declared fraudulent, set aside, determined to be void or voidable as a
preference, impermissible setoff, or a diversion of trust funds, or for any
other reason, then the Obligations or part thereof intended to be satisfied
shall be revived and continued and this Agreement shall continue in full force
as if such payment or proceeds had not been received by such Credit Provider and
the Borrowers shall be liable to pay to the Agent for the benefit of the Credit
Providers, and each Borrower hereby indemnifies the Credit Providers and holds
the Credit Providers harmless for the amount of such payment or proceeds
surrendered. The provisions of this Section 2.11(f) shall be and remain
effective notwithstanding any release of Collateral or guarantors, cancellation
or return of Loan Documents, or other contrary action that may have been taken
by any Credit Provider in reliance upon such payment or application of proceeds,
and any such contrary action so taken shall be without prejudice to the Credit
Providers' rights under this Agreement and the other Loan Documents and shall be
deemed to have been conditioned upon such payment or application of proceeds
having become final and irrevocable. The provisions of this Section 2.11(f)
shall survive the termination of this Agreement.
(g) Agent's and Lenders' Books and Records; Monthly Statements. The Agent
shall record the principal amount of the Loans, the undrawn face amount of all
outstanding Letters of Credit, and the aggregate amount of unpaid reimbursement
obligations outstanding with respect to the Letters of Credit from time to time
on its books. In addition, each Lender may note the date and amount of each
payment or prepayment of principal of such Lender's Loans in its books and
records. Failure by the Agent or any Lender to make any such notation shall not
affect the obligations of the Borrowers with respect to the Loans or the Letters
of Credit. The Borrowers agree that the Agent's and each Lender's books and
records showing the Obligations and the transactions pursuant to this Agreement
and the other Loan Documents shall be admissible in any action or proceeding
arising therefrom, and shall constitute presumptive proof thereof, irrespective
of whether any Obligation is also evidenced by a promissory note or other
instrument. The Agent will provide to the Borrowers a monthly statement of
Loans, payments, and other transactions pursuant to this Agreement. Such
statement shall be deemed correct,
49
accurate, and binding on the Borrowers and an account stated (except for
reversals and reapplications of payments made as provided in Section 2.11(f) and
corrections of errors discovered by the Agent), unless the Borrowers notify the
Agent in writing to the contrary within 30 days after such statement is
rendered. In the event a timely written notice of objections is given by the
Borrowers, only the items to which exception is expressly made will be
considered to be disputed by the Borrowers.
(h) Funding Losses. The Borrowers shall reimburse each Lender and hold
each Lender harmless from any loss or expense that such Lender may sustain or
incur as a consequence of:
(i) the failure of the Borrowers to make on a timely basis any
payment of principal of any LIBOR Loan;
(ii) the failure of the Borrowers to (A) borrow any requested LIBOR
Loan, (B) continue any LIBOR Loan, or (C) convert a Base Rate Loan to a LIBOR
Loan after the Borrowers have given (or are deemed to have given) a Notice of
Borrowing, a Notice of Continuation/Conversion, or any telephonic notice in lieu
thereof with respect thereto; or
(iii) the prepayment or other payment (including after acceleration
thereof) of any LIBOR Loans on a day that is not the last day of the relevant
Interest Period;
including any such loss of anticipated profit and any loss or expense arising
from the liquidation or reemployment of funds obtained by such Lender to
maintain its LIBOR Loans or from fees payable to terminate the deposits from
which such funds were obtained. The Borrowers shall also pay any customary
administrative fees, including a processing fee (the processing fee is currently
Three Hundred Fifty Dollars ($350) but is subject to change from time to time by
the Agent without notice), charged by the Agent or any Lender in connection with
the foregoing.
SECTION 2.12 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.08, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.10,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.08 or 2.10, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers
hereby agree to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.08, or if the
Borrowers are required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.10,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrowers may, at their sole expense and effort, upon notice to such Lender and
the Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.05), all
its interests, rights
50
and obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrowers shall have received the prior
written consent of the Agent, which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans, accrued interest thereon, accrued fees, and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrowers (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.08 or payments required
to be made pursuant to Section 2.10, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.13 Fees.
(a) Unused Line Fee. Subject to Section 9.14, until the Revolving Loans
have been paid in full and this Agreement and the Commitments are terminated,
the Borrowers agree to pay to the Agent, for the account of the Lenders in
accordance with their respective Pro Rata Shares, on the first day of each
calendar quarter (commencing April 1, 2005) and on the Termination Date, an
unused line fee (the "Unused Line Fee") equal to three-eighths of one percent
(.375%) per annum, multiplied by the amount by which the Maximum Revolver Amount
exceeded the sum of the average daily Aggregate Revolver Outstandings during the
immediately preceding calendar quarter or shorter period if calculated for the
first calendar quarter following the Closing Date or on the Termination Date.
Subject to Section 9.14, the Unused Line Fee shall be computed on the basis of a
360 day year for the actual number of days elapsed. For purposes of calculating
the Unused Line Fee pursuant to this Section 2.13, any payment received by the
Agent (if received prior to 12:00 noon (Chicago, Illinois time)) shall be deemed
to be credited to the Borrowers' Loan Account on the Business Day such payment
is received by the Agent.
(b) Letter of Credit Fees and Expenses.
(i) Subject to Section 9.14, the Borrowers agree to pay to the
Agent, for the account of the Lenders in accordance with their respective Pro
Rata Shares a fee (the "Letter of Credit Fee") equal to the Letter of Credit Fee
Percentage, multiplied by the average undrawn face amount of each Letter of
Credit issued and outstanding hereunder. The Letter of Credit Fee shall be
computed (A) on the basis of a 360 day year for the actual number of days
elapsed and (B) payable monthly in arrears on the first day of each month
following any month in which a Letter of Credit was issued and/or in which a
Letter of Credit remained outstanding and on the Termination Date.
(ii) Subject to Section 9.14, the Borrowers agree to pay to the
Letter of Credit Issuer, for its sole benefit, (A) all reasonable out-of-pocket
costs, fees, and expenses incurred by the Letter of Credit Issuer in connection
with the application for, processing, issuance, renewal, extension, or amendment
of any Letter of Credit and (B) a "fronting fee" in an amount equal to 0.125% of
the face amount of such Letter of Credit, which fee shall be due and payable on
the date of issuance, renewal, or extension of each Letter of Credit.
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(c) Fees per Fee Letter. Subject to Section 9.14, upon the execution of
this Agreement and thereafter as and when provided in the Fee Letter, Borrowers
agree to pay the fees set forth in the Fee Letter.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers and the other Obligated Parties represent and
warrant to the Agent and each of the Lenders that:
SECTION 3.01 Organization; Powers. Each of the Borrowers and each of the other
Obligated Parties (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has all requisite
power and authority to own its property and assets and to carry on its business
as now conducted and as proposed to be conducted, (c) is qualified to do
business in, and is in good standing in, every jurisdiction where such
qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the
power and authority to execute, deliver and perform its obligations under each
of the Loan Documents and each other agreement or instrument contemplated hereby
to which it is or will be a party.
SECTION 3.02 Authorization. The execution, delivery and performance by each
Obligated Party of each of the Loan Documents, to which it is or will be a party
and the consummation of the Transactions hereunder (a) have been duly authorized
by all requisite corporate or limited liability company action and (b) will not
(i) violate (A) any provision of law, statute, rule or regulation, or of the
articles of organization or operating agreement or other constitutive documents
or by-laws of the Obligated Parties or any Subsidiary, (B) any order of any
Governmental Authority or (C) any provision of any indenture, agreement or other
instrument to which Obligated Parties or any Subsidiary is a party or by which
any of them or any of their property is or may be bound, (ii) be in conflict
with, result in a breach of or constitute (alone or with notice or lapse of time
or both) a default under, or give rise to any right to accelerate or to require
the prepayment, repurchase or redemption of any obligation under any such
indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien upon or with respect to any property or assets now owned
or hereafter acquired by Obligated Parties or any Subsidiary (other than any
Lien created hereunder or under the Security Documents).
SECTION 3.03 Enforceability. This Agreement has been duly executed and delivered
by the Borrowers and the other Obligated Parties and constitutes, and each other
Loan Document when executed and delivered by each Borrower and other Obligated
Party thereto will constitute, a legal, valid and binding obligation of such
Obligated Party enforceable against such Obligated Party in accordance with its
terms, subject to the effects of applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws affecting creditors' rights generally and
equitable principles of general applicability (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
52
SECTION 3.04 Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except for such as have
been made or obtained and are in full force and effect.
SECTION 3.05 Financial Statements.
(a) ACL has heretofore furnished to the Agent and Lenders its consolidated
balance sheets and statements of income and changes in financial condition as of
and for the fiscal year ended December 31, 2003, audited by and accompanied by
the opinion of Ernst & Young, independent public accountants. Such financial
statements present fairly the financial condition and results of operations and
cash flows of ACL and its consolidated Subsidiaries as of such dates and for
such periods. Such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of ACL and its consolidated Subsidiaries as
of the dates thereof. Such financial statements were prepared in accordance with
GAAP applied on a consistent basis.
(b) The Borrowers have heretofore delivered to the Lenders unaudited pro
forma consolidated balance sheets and related statements of operations and
members' equity interests and/or shareholders' equity as the case may be as of
and for the fiscal year ending December 31, 2004, prepared giving effect to the
Transactions as if they had occurred on such date. Such pro forma financial
statements have been prepared in good faith by the Borrowers, based on the
assumptions believed in good faith by the Borrowers on the date hereof to be
reasonable, are based on the best information available to the Borrowers as of
the date of delivery thereof, accurately reflect all adjustments required to be
made to give effect to the Transactions and present fairly on a pro forma basis
the estimated consolidated financial position of the Borrowers and their
consolidated Subsidiaries as of such date, assuming that the Transactions had
actually occurred at such date.
SECTION 3.06 No Material Adverse Change. There has been no event or occurrence
having a Material Adverse Effect on the business, assets, operations, condition
(financial or otherwise), since December 31, 2003 other than as a result of the
consummation of the Chapter 11 Plan.
SECTION 3.07 Title to Properties; Possession Under Leases. (a) Each of Holdings
and its Subsidiaries has good and marketable title to, or valid leasehold
interests in, all its material properties and assets (including all Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties and assets for their intended purposes. All such material properties
and assets are free and clear of Liens, other than Liens expressly permitted by
Section 6.02. Without limiting the generality of the foregoing, except as set
forth on Schedule 3.07(a) each of the Vessels owned by any of the Obligated
Parties has been duly documented under the laws of the United States in the name
of the Obligated Party or the Subsidiary listed on Schedule 3.19(c) as the owner
thereof, and no other action is necessary to establish and perfect such
entities' title to and interest in such Vessels, (b) each of the Obligated
Parties and their Subsidiaries is in compliance with all obligations under all
material leases to which it is a party and all such leases are in full force and
effect, each of the other Obligated Parties and their Subsidiaries enjoys
peaceful and undisturbed possession under all such material leases, (c) except
as set forth on Schedule 3.07(b), no
53
Obligated Party has received any notice of, nor has any knowledge of, any
pending or contemplated condemnation proceeding materially and adversely
affecting the Mortgaged Properties or any sale or disposition thereof in lieu of
condemnation which is material to the business of the Obligated Parties, and (d)
except as set forth on Schedule 3.07(c), none of the Obligated Parties or any of
the Subsidiaries is obligated under any right of first refusal, option or other
contractual right to sell, assign or otherwise dispose of any Mortgaged Property
or any interest therein. Each of the Obligated Parties owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Obligated Parties
does not infringe upon the rights of any other person, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.08 Subsidiaries. Schedule 3.08 sets forth as of the date hereof a list
of all Subsidiaries and the percentage ownership interest of each of the
Obligated Parties therein. The shares of Equity Interests or other ownership
interests so indicated on Schedule 3.08 are fully paid and nonassessable and are
owned by the Obligated Parties, directly or indirectly, free and clear of all
Liens (other than Permitted Liens) or as set forth on Schedule 3.08.
SECTION 3.09 Litigation; Compliance with Laws. (a) Except as set forth on
Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Obligated Parties, threatened against or affecting the
Obligated Parties or any Subsidiary or any business, property or rights of any
such person (i) that involve any Loan Document or the Transactions or (ii) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect, and (b) none of the Obligated
Parties or any of the Subsidiaries or any of their respective material
properties or assets is in violation of, nor will the continued operation of
their material properties and assets as currently conducted violate, any law,
rule or regulation (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits) or any restrictions of
record or agreements affecting the Mortgaged Properties, or is in default with
respect to any judgment, writ, injunction, decree or order of any Governmental
Authority, in each case, where such violation or default could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10 Agreements. (a) None of the Obligated Parties or any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect, and (b) after giving effect to the
Transactions, none of the Obligated Parties or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11 Federal Reserve Regulations. (a) None of the Obligated Parties or
any of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock, and (b) no part of the proceeds of the Loans will be
used, whether directly or indirectly, and whether immediately,
54
incidentally or ultimately, for any purpose that entails a violation of, or that
is inconsistent with, the provisions of the Regulations of the Board, including
Regulation U or X.
SECTION 3.12 Investment Company Act; Public Utility Holding Company Act. None of
the Obligated Parties or any Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.13 Tax Returns. Each of Obligated Parties and their Subsidiaries have
filed or caused to be filed all Federal income tax returns and all material
Federal non-income, material state, material local and material foreign tax
returns or materials required to have been filed by it and has paid or caused to
be paid all taxes shown on such returns to be due and payable by it and all
assessments received by it, except taxes that are being contested in good faith
by appropriate proceedings and for which the Obligated Parties or such
Subsidiary, as applicable, shall have set aside on its books adequate reserves.
SECTION 3.14 No Material Misstatements. No information, report, financial
statement, exhibit or schedule furnished by or on behalf of the Obligated
Parties to the Agent or any Lender in connection with the negotiation of any
Loan Document or included therein or delivered pursuant thereto contained,
contains or will contain any material misstatement of fact or omitted, omits or
will omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were, are or will be made, not
misleading, provided that to the extent any such information, report, financial
statement, exhibit or schedule was based upon or constitutes a forecast or
projection, each of the Obligated Parties represents only that it acted in good
faith and utilized reasonable assumptions and due care in the preparation of
such information, report, financial statement, exhibit or schedule.
SECTION 3.15 ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. Except as disclosed in Schedule 3.15, the
present value of all accumulated benefit obligations under all Plans in the
aggregate (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value of
the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans.
SECTION 3.16 Environmental Matters. Except as set forth in Schedule 3.16: (a)
the properties owned or operated by each Obligated Party and its Subsidiaries
(the "Properties") do not contain any Hazardous Materials in amounts or
concentrations which (i) constitute, or constituted a violation of, (ii) require
Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect,
(b) the Properties and all operations of each Obligated Party and its
Subsidiaries are in compliance, and in the last six years have been in
compliance, with all Environmental Laws and all necessary Environmental
55
Permits have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, (c)
there have been no Releases or threatened Releases at, from, under or proximate
to the Properties or otherwise in connection with the operations of the
Obligated Parties or the Subsidiaries, which Releases or threatened Releases, in
the aggregate, could reasonably be expected to result in a Material Adverse
Effect, (d) none of the Obligated Parties or any of the Subsidiaries has
received any written notice of an Environmental Claim in connection with the
Properties or the operations of the Obligated Parties or the Subsidiaries or
with regard to any person whose liabilities for environmental matters the
Obligated Parties or the Subsidiaries has retained or assumed, in whole or in
part, contractually, by operation of law or otherwise, which, in the aggregate,
could reasonably be expected to result in a Material Adverse Effect, nor do the
Obligated Parties or the Subsidiaries have reason to believe that any such
notice will be received or is being threatened; and (e) Hazardous Materials have
not been transported from the Properties, nor have Hazardous Materials been
generated, treated, stored or disposed of at, on or under any of the Properties
in a manner that could give rise to liability under any Environmental Law, nor
have the Obligated Parties or the Subsidiaries retained or assumed any
liability, contractually, by operation of law or otherwise, with respect to the
generation, treatment, storage or disposal of Hazardous Materials, which
transportation, generation, treatment, storage or disposal, or retained or
assumed liabilities, in the aggregate, could reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.17 Insurance. Schedule 3.17 sets forth a true, complete and correct
description of all insurance maintained by the Obligated Parties or by the
Obligated Parties for their Subsidiaries as of the date hereof. As of the date
hereof, such insurance is in full force and effect and all premiums due and
payable have been duly paid. The Obligated Parties and their Subsidiaries have
insurance in such amounts and covering such risks and liabilities as are in
accordance with normal industry practice.
SECTION 3.18 Security Documents. (a) The Pledge Agreement is effective to create
in favor of the Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Pledge Agreement) and, for so long as the Agent continues to hold such
Collateral, the Pledge Agreement shall constitute a fully perfected first
priority Lien on, and security interest in, all right, title and interest of the
pledgors thereunder in such Collateral, in each case prior and superior in right
to any other person, (b) the Security Agreement is effective to create in favor
of the Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable security interest in the Collateral (as defined in the Security
Agreement), in each case prior and superior in right to any other person, other
than with respect to Liens expressly permitted by Section 6.02, (c) the
Trademark Security Agreement filed in the United States Patent and Trademark
Office constitutes (together with the financing statements filed with the
Secretary of State of Delaware) a fully perfected Lien on, and security interest
in, all right, title and interest of the Obligated Parties thereunder in the
registered trademarks of the Obligated Parties which constitute Intellectual
Property (as defined in the Security Agreement), in each case prior and superior
in right to any other person (it being understood that subsequent recordings in
the United States Patent and Trademark Office and the United States Copyright
Office may be necessary to perfect a lien on registered trademarks, trademark
applications and copyrights acquired by the Obligated Parties after the date
hereof), (d) the Mortgages are effective to create in favor of the Agent, for
the ratable benefit of the
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Secured Parties, a legal, valid and enforceable Lien on all of the Obligated
Parties' right, title and interest in and to the Mortgaged Properties thereunder
and the proceeds thereof, in each case prior and superior in right to any other
person, other than with respect to the rights of persons pursuant to Liens
expressly permitted by Section 6.02, and (e) the Fleet Mortgages are effective
to create a legal, valid and enforceable Lien on all of the Obligated Parties'
right, title and interest in and to the Vessels specified therein, and the
proceeds thereof, in each case prior and superior in right to any other person,
other than with respect to the rights of persons pursuant to Liens expressly
permitted by Section 6.02.
SECTION 3.19 Location of Real Property, Drydocks and Leased Premises and List of
Vessels. (a) Schedule 3.19(a) lists completely and correctly as of the Closing
Date all real property and drydocks owned by the Obligated Parties and the
addresses thereof, other than certain real property of de minimis value. The
Obligated Parties own in fee all the real property set forth on Schedule 3.19(a)
on the Closing Date; (b) Schedule 3.19(b) lists completely and correctly as of
the Closing Date all real property and drydocks leased by the Obligated Parties
and the addresses thereof, other than certain real property of de minimis value.
The Obligated Parties have valid leases in all the real property and drydocks
set forth on Schedule 3.19(b); and (c) Schedule 3.19(c) lists completely and
correctly as of the date hereof all Vessels owned or leased by the Obligated
Parties on the Closing Date. Except as disclosed in Schedule 3.19(b), there are
no leases affecting any portion of the Real Estate. Each such lease is in full
force and effect, and, except as disclosed in Section 3.19(b), none of the
Obligated Parties has given, nor to any of the Obligated Parties' knowledge has
it received, any uncured or unwaived notice of default with respect to any
material obligation under any such lease. Each such lease is subject to no lien,
charge or encumbrance other than Permitted Liens.
SECTION 3.20 Labor Matters. Except as set forth on Schedule 3.20, as of the date
hereof there are no strikes, lockouts or slowdowns against any of Obligated
Parties or any Subsidiary pending or, to the knowledge of the Obligated Parties,
threatened. The hours worked by and payments made to employees of each Obligated
Party and its Subsidiaries have not been in material violation of the Fair Labor
Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All payments due from the Obligated Parties or any
Subsidiary, or for which any claim may be made against the Obligated Parties or
any Subsidiary, on account of wages and employee health and welfare insurance
and other benefits, have been paid or accrued as a liability on the books of the
Obligated Parties or such Subsidiary. The consummation of the transactions under
this Agreement will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
to which the Obligated Parties or any Subsidiary is bound.
SECTION 3.21 Solvency. Immediately after the consummation of the Transactions,
(a) the fair value of the assets of each Obligated Party, at a fair valuation,
will exceed its debts and liabilities, subordinated, contingent or otherwise;
(b) the present fair saleable value of the property of each Obligated Party will
be greater than the amount that will be required to pay the probable liability
of its debts and other liabilities, subordinated, contingent or otherwise, as
such debts and other liabilities become absolute and matured; (c) each Obligated
Party will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (d)
each Obligated Party will not have unreasonably small
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capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted following the Closing
Date.
SECTION 3.22 Bank Accounts. Schedule 3.22 contains a complete and accurate list
of all bank accounts maintained by each Obligated Party as of the Closing Date
with any bank or other financial institution.
SECTION 3.23 Common Enterprise. The successful operation and condition of each
of the Borrowers is dependent on the continued successful performance of the
functions of Borrowers as a whole and the successful operation of each of the
Borrowers is dependent on the successful performance and operation of the other
Borrowers. Each Borrower expects to derive benefit (and its board of directors
or other governing body has determined that it may reasonably be expected to
derive benefit), directly and indirectly, from successful operations of the
other Borrowers. Each Borrower expects to derive benefit (and the boards of
directors or other governing body of each Borrower has determined that it may
reasonably be expected to derive benefit), directly and indirectly, from the
credit extended by the Lenders to the Borrowers hereunder, both in their
separate capacities and as members of the group of companies. Each Borrower has
determined that execution, delivery, and performance of this Agreement and any
other Loan Documents to be executed by such Borrower is within its purpose, will
be of direct and indirect benefit to such Borrower, and is in its best interest.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01 Conditions Precedent to Closing. The obligation of the Lenders to
make the initial Revolving Loans on the Closing Date, and the obligation of the
Agent to cause the Letter of Credit Issuer to issue any Letter of Credit on the
Closing Date, are subject to the following conditions precedent having been
satisfied in a manner satisfactory to the Agent and each Lender.
(a) Supporting Documents. The Agent shall have received for each of the
Obligated Parties:
(i) a copy of such entity's certificate of incorporation or
formation, as amended, certified as of a recent date by the Secretary of State
of the state of its incorporation or formation;
(ii) a certificate of such Secretary of State, dated as of a recent
date, as to the good standing of and, if customarily provided by such Secretary
of State, payment of taxes by, that entity and as to the charter documents on
file in the office of such Secretary of State; and
(iii) a certificate of the Secretary or an Assistant Secretary of
that entity dated the Closing Date certifying (A) that attached thereto is a
true and complete copy of the by-laws or limited liability company agreement or
operating agreement of that entity as in effect on the date of such
certification, (B) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors or managers of that entity
authorizing the Transactions, the execution, delivery and performance in
accordance with their respective terms of this
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Agreement, the Loan Documents and any other documents required or contemplated
hereunder or thereunder and the granting of other Liens contemplated hereby, (C)
that the certificate of incorporation or formation of that entity has not been
amended since the date of the last amendment thereto indicated on the
certificate of the Secretary of State furnished pursuant to clause (i) above and
(D) as to the incumbency and specimen signature of each officer or manager of
that entity executing this Agreement and the Loan Documents or any other
document delivered by it in connection herewith or therewith (such certificate
to contain a certification by another officer or manager of that entity as to
the incumbency and signature of the officer or manager signing the certificate
referred to in this clause (iii)).
(b) Intercreditor Agreement. The Agent shall have received a fully
executed copy of the NRG Intercreditor Agreement.
(c) Security Agreement, Perfection Certificate, Pledge Agreement, Fleet
Mortgage and Mortgage. The Obligated Parties shall have duly executed and
delivered to the Agent the Security Agreement, the Trademark Security Agreement,
the Perfection Certificate and the Pledge Agreement. Each of ACL, Houston and
LDC shall have executed and delivered the Fleet Mortgages (it being understood
that, notwithstanding the filing of the Fleet Mortgages with the United States
Coast Guard on the Closing Date, written evidence of the recordation with the
United States Coast Guard of the Fleet Mortgage may be deferred for a period of
up to 180 days following the Closing Date). The Borrowers and each applicable
Guarantor shall have duly executed and delivered to the Agent the Mortgages.
(d) Guaranty Agreement. The Guarantors shall have duly executed and
delivered to the Agent the Guaranty Agreement.
(e) Opinion of Counsel. The Agent and Lenders shall have received the
favorable written opinion of counsel to the Obligated Parties reasonably
acceptable to the Agent and Lenders, dated the date of the Loans, substantially
in the form of Exhibit B.
(f) Payment of Fees. The Borrowers shall have paid to Agent, for itself,
the Lenders or any other applicable Credit Provider or Person, the then unpaid
balance of all accrued and unpaid costs, expenses and fees due under and
pursuant to the Fee Letter and this Agreement and the mutual agreement referred
to in Section 2.13.
(g) Corporate and Judicial Proceedings. All corporate and judicial
proceedings and all instruments and agreements in connection with the
Transactions among the Obligated Parties, the Agent and each Lender contemplated
by this Agreement shall be reasonably satisfactory in form and substance to the
Agent and each Lender, and the Agent shall have received all information and
copies of all documents and papers, including records of corporate and judicial
proceedings, which the Agent and each Lender may have reasonably requested in
connection therewith, such documents and papers where appropriate to be
certified by proper corporate, governmental or judicial authorities.
(h) Information. The Agent and Lenders shall have received such
information (financial, appraisal, field examination or otherwise) as may be
reasonably requested by any of them.
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(i) Compliance with Environmental Laws. The Obligated Parties shall have
granted the Agent access to and the right to inspect all reports, audits and
other internal information of the Obligated Parties relating to environmental
matters, and any third party verification of certain matters relating to
compliance with Environmental Laws requested by the Agent, and the Agent shall
be reasonably satisfied (x) that the Obligated Parties are in compliance in all
material respects with all applicable Environmental Laws and (y) that the
Obligated Parties have made adequate provision for the costs of maintaining such
compliance.
(j) Certificate as to Vessels. The Agent shall have received a
certificate of a Financial Officer certifying as to all of the Vessels that are
owned by the Borrowers and the Guarantors, whether or not registered with the
United States Coast Guard.
(k) Confirmation Order. The Confirmation Order was entered by the
Bankruptcy Court and, as of the date hereof, the Confirmation Order has not been
reversed, stayed, modified or amended.
(l) Unused Availability. After giving effect to all Borrowings on the
Closing Date and payment of all fees and expenses due hereunder, and with all of
the Borrowers' Indebtedness, liabilities, and obligations current, the Unused
Availability shall not be less than $30,000,000.
(m) Issuance of Senior Notes. The Agent shall have received evidence
that Borrowers shall have received not less than $195,000,000 in connection with
the issuance of the Senior Notes.
(n) Termination of the Term Loan Agreements. Subject to the payment by
Obligated Parties of the Indebtedness outstanding under the Term Loan Agreements
as of the date hereof, the Term Loan Agreements shall be terminated and the
Liens heretofore granted by any Obligated Party in favor of the Term Loan Agents
or any Term Loan Lender shall be terminated and released.
SECTION 4.02 Conditions Precedent to Each Loan. The obligation of the Lenders to
make each Loan, including the initial Loans on the Closing Date, and the
obligation of the Agent to cause the Letter of Credit Issuer to issue any Letter
of Credit shall be subject to the further conditions precedent that on and as of
the date of any such Borrowing the following statements shall be true, and the
request or deemed request by the Borrowers of any Borrowing shall be deemed to
be a statement by each of the Obligated Parties to the effect set forth in
clause (a), clause (b), and clause (c) following with the same effect as the
delivery to the Agent of a certificate signed by a Responsible Officer of each
of the Obligated Parties, dated the date of such extension of credit, stating
that:
(a) the representations and warranties contained in this Agreement
(other than Section 3.06) and the other Loan Documents are correct in all
material respects on and as of the date of such Borrowing as though made on and
as of such date, other than any such representation or warranty that relates to
a specified prior date and except to the extent the Agent and the Lenders have
been notified in writing by the Borrowers that any representation or
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warranty is not correct and the Majority Lenders have explicitly waived in
writing compliance with such representation or warranty;
(b) no event or circumstance exists, or would result from such
Borrowing, that constitutes an Event of Default;
(c) no event or circumstance exists, or would result from such
Borrowing, that has had, or could reasonably be expected to have, a Material
Adverse Effect; and
(d) the proposed Borrowing does not exceed the Unused Availability prior
to giving effect to such Borrowing;
provided that the foregoing conditions precedent are not conditions to any
Lender participating in or reimbursing the Bank or the Agent for such Lender's
Pro Rata Share of any Non-Ratable Loan or Agent Advance made in accordance with
the provisions of Section 2.01(b)(ix) and Section 2.01(b)(x).
ARTICLE V
AFFIRMATIVE COVENANTS
From the date hereof and for so long as any Loan or Commitments shall
remain outstanding or unpaid under this Agreement, the Obligated Parties agree
that, unless the Majority Lenders shall otherwise consent in writing, the
Obligated Parties will:
SECTION 5.01 Existence; Businesses and Properties.
(a) Do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence, except as otherwise expressly
permitted under Section 6.04 and except that the Obligated Parties may dissolve,
consolidate or otherwise liquidate American Commercial Terminals - Memphis LLC
and Lemont Harbor & Fleeting Services LLC as contemplated by the Chapter 11
Plan.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect in all material respects the
rights, licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its consolidated business;
maintain and operate such business in substantially the manner in which it is
presently conducted and operated; comply in all material respects with all
applicable laws, rules, regulations (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits or any
restrictions of record or agreements affecting the Mortgaged Properties) and
decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted, except where such non-compliance could not reasonably be
expected to result in a Material Adverse Effect; and, except in the case of
sales of assets permitted pursuant to Section 6.04 or any casualty event
resulting in any Casualty Proceeds being paid to any Obligated Party, at all
times maintain and preserve all property material to the conduct of such
business and keep in all material respects such property in good repair, working
order and condition, normal wear and tear excepted, and from time to time make,
or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto
61
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.
SECTION 5.02 Insurance.
(a) In the case of the Obligated Parties and each Subsidiary, keep its
insurable properties adequately insured at all times by financially sound and
reputable insurers (including navigating risk and marine hull and machinery
insurance and full form marine protection and indemnity insurance providing for
an aggregate annual deductible amount for all Obligated Parties and their
Subsidiaries not in excess of $5,000,000); maintain such other insurance, to
such extent and against such risks, including fire and other risks insured
against by extended coverage, in each case as is customary with companies in the
same or similar businesses operating in the same or similar locations, including
public liability insurance against claims for personal injury or death or
property damage occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by it; and maintain such other
insurance as may be required by law.
(b) Cause all such policies to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance satisfactory to the Agent, which endorsement shall provide that,
from and after the Closing Date, if the insurance carrier shall have received
written notice from the Agent of the occurrence of an Event of Default, the
insurance carrier shall, during the continuance of such Event of Default pay all
proceeds otherwise payable to the Borrowers or the Obligated Parties under such
policies directly to the Agent, cause all such policies to provide that neither
the Obligated Parties, the Agent nor any other party shall be a coinsurer
thereunder; cause all such policies (other than policies relating to any Vessel)
to contain a replacement cost clause, without any deduction for depreciation,
and such other provisions as the Agent may reasonably require from time to time
to protect the interest of the Agent and the Lenders; cause all such policies
relating to Vessels to include insurance in respect of each Vessel in an
aggregate amount equal to the higher of the then fair market value and the book
value of such Vessel, and such other provisions as the Agent may reasonably
require from time to time to protect their interests; deliver to the Agent (A) a
detailed report signed by independent marine insurance brokers reasonably
acceptable to the Agent describing the insurance policies then carried and
maintained by the Obligated Parties and each Subsidiary (including the names of
the underwriters, the types of risks covered by such policies, the amount
insured thereunder and the expiration date thereof) and stating that such
insurance is, to such insurance broker's knowledge, comparable to that carried
by other experienced and responsible companies in the same or similar businesses
operating in the same or similar locations and (B) if requested by the Agent, a
copy of such policies in a form acceptable to the Agent; cause each such policy
to provide that it shall not be canceled, modified or not renewed (i) by reason
of nonpayment of premium upon not less than 10 days' prior written notice
thereof by the insurer to the Agent (giving the Agent the right to cure defaults
in the payment of premiums) or (ii) for any other reason upon not less than 30
days' prior written notice thereof by the insurer to the Agent; deliver to the
Agent, prior to the cancellation, modification or nonrenewal of any such policy
of insurance, a detailed report signed by independent marine insurance brokers
reasonably acceptable to the Agent describing such renewal or replacement policy
(including the names of the underwriters, the types of risks
62
covered by such policies, the amount insured thereunder and the expiration date
thereof) together with evidence satisfactory to the Agent of payment of the
premium therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the Agent or
the Required Lenders may from time to time reasonably require, and otherwise
comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as it may be amended from time to time, or (ii)
a "Zone 1" area, obtain earthquake insurance in such total amount as the Agent
or the Required Lenders may from time to time reasonably require.
Notwithstanding the foregoing, the Agent and the Required Lenders approve the
flood insurance currently in effect and shall not require the Obligated Parties
to acquire any additional flood insurance absent a material change in the nature
of the Mortgaged Properties, taken as a whole.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than $25,000,000, naming the Agent as an
additional insured, on forms satisfactory to the Agent.
(e) Notify the Agent immediately whenever any separate insurance
concurrent in form or contributing in the event of loss with that required to be
maintained under this Section 5.02 is taken out by the Borrower; and promptly
deliver to the Agent a duplicate original copy of such policy or policies.
(f) Without limiting the generality of the foregoing, keep the Vessels
insured in accordance with the insurance requirements of the Fleet Mortgages.
SECTION 5.03 Obligations and Taxes. Pay its Indebtedness and other obligations
promptly and in accordance with their terms and pay and discharge promptly when
due all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property, before the same shall
become delinquent or in default, as well as all lawful claims for labor,
materials and supplies or otherwise that, if unpaid, might give rise to a Lien
(other than any Lien permitted under Section 6.02) upon such properties or any
part thereof; provided, however, that such payment and discharge shall not be
required with respect to any such tax, assessment, charge, levy or claim so long
as the validity or amount thereof shall be contested in good faith by
appropriate proceedings and each of the Obligated Parties shall have set aside
on its books adequate reserves with respect thereto in accordance with GAAP and
such contest operates to suspend collection of the contested obligation, tax,
assessment or charge and enforcement of a Lien and, in the case of a Mortgaged
Property, there is no risk of forfeiture of such property.
SECTION 5.04 Financial Statements, Reports, etc. In the case of the Obligated
Parties, deliver to the Agent and each of the Lenders:
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(a) within 90 days after the end of each fiscal year, Holdings'
consolidated balance sheets and related statements of income, cash flows and
members' equity interests and/or shareholders' equity as the case may be,
showing the financial condition of Holdings and the Subsidiaries on a
consolidated basis as of the close of such fiscal year and the results of their
respective operations during such year, the consolidated statements of Holdings
shall have been audited for Holdings and its Subsidiaries by Ernst & Young or
other independent public accountants of recognized national standing and
accompanied by an opinion of such accountants (which shall not be qualified in
any material respect) and shall have been certified by a Financial Officer of
Holdings to the effect that such consolidated financial statements fairly
present the financial condition and results of operations of Holdings, the
Borrowers and the other Obligated Parties on a consolidated basis in accordance
with GAAP;
(b) within 45 days after the end of each of the first three fiscal
quarters, Holdings' consolidated balance sheets and related statements of
income, cash flows and members' equity interests and/or shareholders' equity as
the case may be, showing the financial condition of Holdings and its
Subsidiaries on a consolidated basis as of the close of such fiscal quarter and
the results of their operations during such fiscal quarter and the then elapsed
portion of the fiscal year, each certified by a Financial Officer of Holdings as
fairly presenting the financial condition and results of operations of Holdings,
the Borrowers and the other Obligated Parties on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments;
(c) commencing with the first fiscal month following the Closing Date,
as soon as practicable, but in no event later than 30 days after the end of each
fiscal month of Holdings (other than any fiscal month which is also the end of a
fiscal quarter for Holdings), monthly unaudited consolidated balance sheets of
Holdings and their Subsidiaries and related consolidated statements of earnings
and cash flows of the Holdings and their Subsidiaries for the prior fiscal month
and the then elapsed portion of the fiscal quarter, each certified by a
Financial Officer of Holdings as fairly presenting the financial condition and
results of operations of the Holdings and its Subsidiaries on a consolidated
basis in accordance with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes;
(d) (i) concurrently with any delivery of financial statements under (a)
and (b) above, a certificate of a Financial Officer certifying such statements
(A) certifying that no Event of Default or event which upon notice or lapse of
time or both would constitute an Event of Default has occurred, or, if such an
Event of Default or event has occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect thereto and
(B) setting forth computations in reasonable detail satisfactory to the Agent
demonstrating compliance with the provisions of Sections 6.09 and 6.10, and (ii)
concurrently with any delivery of financial statements under (a) above, a
certificate (which certificate may be limited to accounting matters and disclaim
responsibility for legal interpretations) of the accountants auditing the
consolidated financial statements delivered under (a) above certifying that, in
the course of the regular audit of the business of Holdings and its
Subsidiaries, such accountants have obtained no knowledge that an Event of
Default under Sections 6.09 and 6.10 has occurred and is continuing, or if, in
the opinion of such accountants, such an Event of Default has occurred and is
continuing, specifying the nature thereof and all relevant facts with respect
thereto;
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(e) no later than December 31 of each year, commencing December 31,
2005, monthly financial projections, including consolidated balance sheets and
related statements of income and cash flows, for the following fiscal year;
(f) as soon as available, but in any event (i) within fifteen (15) days
after the end of each calendar month as of the end of such calendar month if
Unused Availability is $20,000,000 or more; or (ii) within two (2) Business Days
after the end of each calendar week as of the end of such calendar week if
Unused Availability is less than $20,000,000 or (iii) at such other times as may
be requested by the Agent following the occurrence and during the continuance of
an Event of Default, a Borrowing Base Certificate and supporting information in
connection therewith;
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by it
with the Securities and Exchange Commission, or any governmental authority
succeeding to any of or all the functions of said commission, or with any
national securities exchange, as the case may be; and
(h) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Obligated Parties or
any Subsidiary or compliance with the terms of any material loan or financing
agreements, as the Agent, at the request of any Lender, may reasonably request.
SECTION 5.05 Litigation and Other Notices. Furnish to the Agent and each Lender
prompt written notice of the following:
(a) the filing or commencement of, or any written threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority, against
Holdings or any of its Subsidiaries that could reasonably be expected to result
in a Material Adverse Effect;
(b) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of Holdings and its Subsidiaries in an aggregate amount exceeding
$1,000,000; and
(c) any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrowers setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.06 Maintaining Records; Access to Properties and Inspections. Keep
proper books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law are made of all dealings and
transactions in relation to its business and activities. Each Obligated Party
and its Subsidiaries will permit any representatives designated by the Agent or
any Lender (a) to visit and inspect the financial records and the Collateral of
the Obligated Parties or any Subsidiary at reasonable times and upon reasonable
notice and as often as reasonably requested, but in no event more than an
aggregate of two (2) times per fiscal year
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unless an Event of Default has occurred and is continuing, (b) to make extracts
from and copies of such financial records, (c) to conduct evaluations and
appraisals of (i) the Borrowers' practices in the computation of the Borrowing
Base and (ii) the assets included in the Borrowing Base, and pay the reasonable
fees and expenses in connection therewith (except that so long as no Event of
Default exists and is continuing, Borrowers shall only be required to reimburse
Agent and Lenders for one (1) Vessel Appraisal per year) and (d) to permit any
representatives designated by the Agent or any Lender to discuss the affairs,
finances and condition of the Obligated Parties or any Subsidiary with the
officers thereof and independent accountants therefor. In addition to and not in
limitation of the foregoing, Agent shall have the right at any time or times, in
Agent's name or in the name of a nominee of Agent, to verify the validity,
amount or any other matter relating to any Collateral, by mail, telephone,
facsimile transmission or otherwise. In connection with any collateral
monitoring or review and appraisal relating to the computation of the Borrowing
Base, the Borrowers shall make such adjustments to the Borrowing Base as the
Agent shall reasonably require based upon the terms of this Agreement and the
results of such collateral monitoring, review or appraisal.
SECTION 5.07 Compliance with Environmental Laws. Except for any non-compliance
that could not reasonably be expected to result in a Material Adverse Effect,
comply, and use reasonable efforts to cause all lessees and other persons
occupying its Properties to comply, in all material respects with all
Environmental Laws and Environmental Permits applicable to its operations and
Properties; obtain and renew all material Environmental Permits necessary for
its operations and Properties; and conduct any Remedial Action in accordance
with Environmental Laws; provided, however, that none of the Obligated Parties
or any of the Subsidiaries shall be required to undertake any Remedial Action to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect to
such circumstances.
SECTION 5.08 Preparation of Environmental Reports. If a Default caused by reason
of a breach of Section 3.16 or 5.07 shall have occurred and be continuing, at
the request of the Required Lenders through the Agent, provide to the Lenders
within 45 days (or such longer period as is reasonably required in the
circumstances) after such request, at the expense of the Borrowers, an
environmental site assessment report with respect to the subject matter of such
breach prepared by an environmental consulting firm reasonably acceptable to the
Agent indicating, where appropriate under the circumstances, the estimated cost
of any compliance or Remedial Action in connection with such breach.
SECTION 5.09 Consummation of Plan of Reorganization. Substantial consummation of
the Plan of Reorganization in accordance with the terms thereof and of the
Confirmation Order referred to in Section 4.01(l) above shall have occurred by
March 26, 2005.
SECTION 5.10 Further Assurances. Execute any and all further documents,
financing statements, agreements and instruments, and take all further action
(including filing UCC and other financing statements, mortgages and deeds of
trust) that may be required under applicable law, or that the Required Lenders
or the Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and priority of the security interests created or intended
to be created by the Security Documents. Holdings and Borrowers will cause any
subsequently acquired or organized
66
Domestic Subsidiary to execute a Guaranty Agreement and each applicable Security
Document in favor of the Agent, provided that no such Domestic Subsidiary shall
be required to pledge more than 65% of the Voting Stock of any Foreign
Subsidiary. In addition, from time to time, Holdings and Borrowers will, at
their cost and expense, promptly secure the Obligations by pledging or creating,
or causing to be pledged or created, perfected security interests with respect
to such of their assets and properties as the Agent or the Required Lenders
shall designate (it being understood that it is the intent of the parties that
the Obligations shall be secured by, among other things, substantially all the
assets of the Obligated Parties (including real and other properties acquired
subsequent to the Closing Date)), provided that Obligated Parties shall not be
required to pledge more than 65% of the Voting Stock of any Foreign Subsidiary.
Such security interests and Liens will be created under the Security Documents
and other security agreements, mortgages, deeds of trust and other instruments
and documents in form and substance satisfactory to the Agent and the Obligated
Parties shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including legal opinions, title insurance policies
and lien searches) as the Agent shall reasonably request to evidence compliance
with this Section. Obligated Parties agree to provide such evidence as the Agent
shall reasonably request as to the perfection and priority status of each such
security interest and Lien.
ARTICLE VI
NEGATIVE COVENANTS
From the date hereof and for so long as any Loan or Commitments shall
remain outstanding or unpaid under this Agreement, unless the Majority Lenders
shall otherwise consent in writing, the Obligated Parties will not, and will not
permit any Subsidiary to:
SECTION 6.01 Indebtedness. Contract, create, incur, assume or suffer to exist
any Indebtedness, except for (a) Indebtedness under the Loan Documents; (b) (i)
intercompany indebtedness between the Borrowers and (ii) intercompany
indebtedness between the Borrowers and Guarantors provided that with respect to
any Indebtedness permitted under Section 6.01(b)(ii), after the date hereof,
Borrowers shall not be permitted to make any loans, advances or guaranty any
Indebtedness of any Guarantor unless for the thirty (30) consecutive day period
immediately prior to such date and after giving effect to any such loan, advance
or guaranty, Borrowers have Unused Availability of not less than $10,000,000;
(c) intercompany indebtedness owing from ACBL de Venezuela CA to the Borrowers
not to exceed $3,000,000; (d) Indebtedness arising from investments that are
permitted by Section 6.03; (e) Indebtedness owed to any Lender or any Affiliate
of any Lender in respect of Bank Products in respect of overdrafts and related
liabilities arising from treasury, depository and cash management services, or
in connection with any automated clearing house transfers of funds, (f)
Indebtedness in respect of secured purchase money financing (including Capital
Lease Obligations other than Capital Lease Obligations in respect of chartered
barges and towboats) in an aggregate amount not to exceed $1,000,000, to the
extent permitted by Section 6.02(a) hereof; (g) Capital Lease Obligations in
respect of chartered barges and towboats, (h) Indebtedness evidenced by Maritime
Lien Notes and Tort Lien Notes, and refinancings of any of the Maritime Lien
Notes and Tort Lien Notes, provided any such refinancing does not increase the
outstanding principal amount thereof as of the date of such refinancing and is
otherwise, on terms no less favorable to the Obligated Parties than the terms of
such Maritime Lien Notes as contemplated by the Chapter 11
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Plan, (i) Indebtedness under the Senior Notes, (j) Indebtedness outstanding as
of the Closing Date as set forth on Schedule 6.01, and (k) Indebtedness of
Subsidiaries that are not an Obligated Party, to finance the purchase of
towboats, barges and other vessels ("Vessel Financing"), provided that the
aggregate outstanding principal amount of such Indebtedness shall not exceed
$100,000,000, and, in connection therewith, Indebtedness of Obligated Parties
consisting of unsecured Guarantees of vessel charters executed in connection
with such Vessel Financing, and (l) other Indebtedness in an aggregate amount
not to exceed $1,000,000.
SECTION 6.02 Liens. Create, incur, assume or permit to exist any Lien on any
property or assets (including stock or other securities of any person, including
any Subsidiary) now owned or hereafter acquired by it or on any income or
revenues or rights in respect of any thereof, except:
(a) Liens as set forth in Schedule 6.02, provided that such Liens shall
secure only those obligations which they secure on the date hereof and
refinancings thereof which do not increase the outstanding principal amount
thereof as of the date of such refinancing;
(b) any Lien created or permitted under the Loan Documents or under the
Security Documents;
(c) any Lien existing on any property or asset prior to the acquisition
thereof by the Obligated Parties or any Subsidiary, provided that (i) such Lien
is not created in contemplation of or in connection with such acquisition, (ii)
such Lien does not apply to any other property or assets of the Obligated
Parties or any Subsidiary and (iii) in the case of the Mortgaged Properties,
such Lien does not (A) materially interfere with the use, occupancy and
operation of any Mortgaged Property, (B) materially reduce the fair market value
of such Mortgaged Property but for such Lien or (C) result in any material
increase in the cost of operating, occupying or owning or leasing such Mortgaged
Property;
(d) Liens for taxes not yet due or which are being contested in
compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising, in the case of such other like Liens, in the ordinary
course of business and securing obligations that are not due and payable or
which are being contested in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other social
security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than Capital Lease Obligations), statutory
obligations, surety and appeal bonds, performance bonds and other obligations of
a like nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred, in the case of such
other similar encumbrances, in the
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ordinary course of business which, in the aggregate, are not substantial in
amount and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Obligated
Parties or the Subsidiaries;
(i) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Obligated Parties or any Subsidiary, provided that (i) such
security interests secure Indebtedness permitted by Section 6.01, (ii) such
security interests are incurred, and the Indebtedness secured thereby is
created, within 90 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby does not exceed 85% of the lesser of the cost or
the fair market value of such real property, improvements or equipment at the
time of such acquisition (or construction) (or if such Indebtedness exceeds such
85% limit, such Indebtedness is non-recourse to Obligated Parties and their
Subsidiaries) and (iv) such security interests do not apply to any other
property or assets of the Obligated Parties or any Subsidiary;
(j) Liens securing appeal bonds or arising out of judgments or awards
(other than any judgment that is described in Section 7.01(j) and constitutes a
Default or Event of Default thereunder) in respect of which the Obligated
Parties shall in good faith be prosecuting an appeal or proceedings for review
and in respect of which it shall have secured a subsisting stay of execution
pending such appeal or proceedings for review, provided that the Obligated
Parties shall have set aside on their books adequate reserves, in accordance
with GAAP, with respect to such judgment or award;
(k) Liens resulting from arrangements among the stockholders of Foreign
Subsidiaries which limit or restrict the transfer of Equity Interests of such
Foreign Subsidiaries by those stockholders to third parties;
(l) Maritime Liens and Tort Liens;
(m) Liens granted by a Subsidiary established to effect Vessel
Financings, securing any Vessel Financing, provided that such Liens are limited
to the Vessels which are the subject of such Vessel Financing and the related
charters and reserve and other funds contemplated by such Vessel Financing, and
the proceeds of the foregoing; and
(n) additional Liens on property or assets securing obligations (other
than Indebtedness for borrowed money) not exceeding $1,000,000 at any time,
provided that, to the extent any such Lien applies to any Collateral (as defined
in the Security Agreement), such Lien does not have priority over the Liens
created under the Security Agreement.
SECTION 6.03 Investments, Loans and Advances. Purchase, hold or acquire any
Equity Interests, evidences of Indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments, loans and advances existing on the date hereof by each
Obligated Party as more particularly set forth on Schedule 3.08;
(b) Permitted Investments;
69
(c) loans or advances made by any Obligated Party to any of the
Obligated Parties or any other Obligated Party to the extent permitted by
Section 6.01;
(d) investments consisting of non-cash consideration received in
connection with a sale of assets permitted by Section 6.04(b);
(e) loans and advances to employees and officers of the Obligated
Parties or any of the Subsidiaries for travel, entertainment and relocation
expenses in the ordinary course of business in an aggregate principal amount
outstanding at any one time not to exceed $1,000,000;
(f) ordinary course Interest Rate Protection Agreements and ordinary
course non speculative foreign exchange and commodity protection agreements;
(g) fuel rate cap and forward fuel purchase agreements collectively
covering an aggregate amount of fuel not to exceed the aggregate amount of fuel
reasonably expected to be used by Borrowers and their Subsidiaries during the
next twelve (12) months;
(h) Accounts;
(i) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent Accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(j) intercompany Indebtedness owing from ACBL de Venezuela CA to the
Obligated Parties not to exceed $3,000,000 in the aggregate;
(k) investments in Subsidiaries established to effect Vessel Financings,
not to exceed $15,000,000 in the aggregate; and
(l) other investments, loans and advances in an amount at any time
outstanding not to exceed $3,500,000.
SECTION 6.04 Mergers, Consolidations, Sales of Assets and Acquisitions.
(a) Merge into or consolidate with any other person, or permit any other
person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of the assets of any Obligated Party and their
Subsidiaries, taken as a whole (whether now owned or hereafter acquired), or any
Equity Interests of any Subsidiary, or purchase, lease or otherwise acquire (in
one transaction or a series of transactions) all or any substantial part of the
assets of any other person, except that (i) the Borrowers and any Subsidiaries
may, subject to Section 2.05(b), purchase and sell Inventory and scrap,
obsolete, excess and worn out assets in the ordinary course of business, (ii) if
at the time thereof and immediately after giving effect thereto no Event of
Default or Default shall have occurred and be continuing, (A) any wholly owned
Subsidiary or a Borrower may merge into a Borrower in a transaction in which a
Borrower is the surviving corporation, (B) any wholly owned Subsidiary may merge
into or consolidate with any other wholly owned Subsidiary in a transaction in
which the surviving entity is a wholly owned Subsidiary and no person other than
a Borrower or a wholly owned Subsidiary receives any consideration
70
(provided, that if any such transaction involves a Domestic Subsidiary, the
surviving entity shall be a wholly owned Domestic Subsidiary and no person other
than the Borrower or a wholly owned Domestic Subsidiary shall receive any
consideration, and provided further, that if any such transaction involves a
Guarantor, the surviving entity shall be a Guarantor), and (C) any Foreign
Subsidiary may merge into or consolidate with any other Foreign Subsidiary in a
transaction in which the surviving entity is a Subsidiary and the value of the
Borrower's direct or indirect interest in such surviving entity immediately
after such merger or consolidation is at least equal to the aggregate value of
its direct or indirect interest in the merging or consolidating Foreign
Subsidiaries immediately prior to such merger or consolidation, and (iii) the
Obligated Parties and any Subsidiary may (A) consummate transactions authorized
by the Towboat Order, and (B) consummate transactions contemplated by the NRG
Agreements.
(b) Neither the Obligated Parties nor any Subsidiary shall engage in any
Asset Sale otherwise permitted under paragraph (a) above unless (i) such Asset
Sale is for consideration at least 85% of which is cash, (ii) such consideration
is at least equal to the fair market value (as determined in good faith by the
Obligated Parties' board of directors or analogous body) of the assets being
sold, transferred, leased or disposed of, and (iii) the fair market value (as
determined in good faith by the Borrowers' board of directors or analogous body)
of all assets sold, transferred, leased or disposed of pursuant to this
paragraph (b) shall not exceed (A) $15,000,000 in the aggregate or (B)
$3,000,000 in any fiscal year; provided, that the provisions of this Section
6.04(b) shall not apply to Asset Sales permitted by clauses (A) and (B) of
Section 6.04(a)(iii) and the limitations set forth in Section 6.04(b)(iii) shall
not apply to the sale by any Obligated Party of its Equity Interests in any
non-Domestic Subsidiaries or any Asset Sales by any non-Domestic Subsidiary.
SECTION 6.05 Dividends and Distributions; Restrictions on Ability to Pay
Dividends.
(a) Declare or pay, directly or indirectly, any dividend or make any
other distribution (by reduction of capital or otherwise), whether in cash,
property, securities or a combination thereof, with respect to any of its Equity
Interests or directly or indirectly redeem, purchase, retire or otherwise
acquire for value (or permit any Subsidiary to purchase or acquire) any of its
Equity Interest or set aside any amount for any such purpose; provided, however,
that from and after the first Anniversary Date, any Borrower or Guarantor may
declare and pay dividends or make other distributions ratably to its
shareholders provided that as of the date that any such dividend or distribution
is declared and paid (i) no Default or Event of Default exists or is continuing
or would exist after giving effect to any such dividend or distribution, (ii)
Agent and Lenders have received the financial statements required to be
delivered under Section 5.04(a) (the "Audited Financial Statements") for the
immediately preceding fiscal year (commencing with the 2005 fiscal year of
Holdings), and (iii) for the thirty (30) consecutive day period immediately
prior to such date and after giving effect to any such dividend or distribution,
Borrowers have Unused Availability of not less than (A) if such dividend or
distribution occurs after the first Anniversary Date but prior to the second
Anniversary Date, $75,000,000; and (B) if such dividend or distribution occurs
on or after the second Anniversary Date, $50,000,000.
(b) Except in connection with any Vessel Financing, and except pursuant
to the agreements identified on Schedule 6.05(b), permit any Obligated Party or
any Subsidiary to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any
71
encumbrance or restriction on the ability of any such Obligated Party or any
such Subsidiary to (i) pay any dividends or make any other distributions on its
Equity Interests or any other interest or (ii) make or repay the Loans or
advances to the Obligated Party or the parent of such Subsidiary, provided that
the foregoing shall not apply to restrictions and conditions imposed by law or
by any Loan Document.
SECTION 6.06 Transactions with Affiliates. Except as set forth on Schedule 6.06,
sell or transfer any property or assets to, or purchase or acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except that (a) the Obligated Parties or any Subsidiary may engage
in (i) any of the foregoing transactions in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrowers or such
Subsidiary than could be obtained on an arm's-length basis from unrelated third
parties; provided, that, for any transactions other than transactions solely
among any Obligated Parties and their Subsidiaries, the Borrowers shall give the
Agent at least 10 Business Days prior written notice of any such transaction in
excess of $250,000 and (ii) the Transactions, and (b) this Section 6.06 shall
not apply to transactions solely (i) between or among one or more of the
Borrowers, one or more Guarantors and one or more other Subsidiaries, provided
that such Subsidiaries are parties to a Vessel Financing, and (ii) between or
among wholly owned Foreign Subsidiaries.
SECTION 6.07 Business of Obligated Parties and Subsidiaries. Engage at any time
in any business or business activity other than a Related Business.
SECTION 6.08 Other Indebtedness and Agreements.
(a) Permit any waiver, supplement, modification, amendment, termination
or release of any indenture, instrument or agreement pursuant to which any
Indebtedness or preferred Equity Interests of the Obligated Parties or any
Subsidiary is outstanding, or modify the articles of organization, operating
agreement or by-laws of the Obligated Parties or any Subsidiary, in each case to
the extent that any such waiver, supplement, modification, amendment,
termination or release would be adverse to the Lenders in any material respect;
provided, that the Borrowers shall deliver to the Agent (i) for its review a
description of any waiver, supplement, modification, amendment, termination or
release of any indenture, instrument or agreement pursuant to which any
Indebtedness or preferred stock of the Obligated Parties or any Subsidiary in an
aggregate principal amount in excess of $1,000,000 is outstanding at least ten
(10) Business Days (or such shorter period as may be reasonably practicable)
prior to the execution and delivery thereof and (ii) a copy of such waiver,
supplement, modification, amendment, termination or release promptly after it
becomes available to the Borrowers.
(b) (i) Make any distribution, whether in cash, property, securities or
a combination thereof, other than regular scheduled (or, in the case of
Indebtedness described in Section 6.01, mandatory) payments of principal and
interest as and when due, in respect of, or pay, or offer or commit to pay, or
directly or indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, any Indebtedness
for borrowed money of the Obligated Parties or any Subsidiary after the Closing
Date or (ii) pay in cash any amount in respect of such Indebtedness that may at
the obligor's option be paid in kind or in other securities, except:
72
(A) payment of Indebtedness created under the Loan Documents;
(B) payment of intercompany Indebtedness between or among the
Obligated Parties and its Subsidiaries permitted under clauses (b) and (c)
of Section 6.01;
(C) refinancings of the Maritime Lien Notes permitted under Section
6.01; and
(D) from and after the first anniversary of this Agreement and the
receipt by Agent and Lenders of the Audited Financial Statements for the
2005 fiscal year of Holdings, Obligated Parties may prepay principal
Indebtedness under the Maritime Lien Notes or the Senior Notes provided
that ACL provides Agent with ten (10) days prior written notice of any
intended payment and as of the date of any such payment (A) no Default or
Event of Default exists or is continuing or would exist after giving
effect to any such dividend or distribution and (B) for the thirty (30)
consecutive day period immediately prior to such date and after giving
effect to any such payment, Borrowers have Unused Availability of not less
than $50,000,000.
SECTION 6.09 Consolidated EBITDA. Permit Consolidated EBITDA for each period
listed below to be less than the amount specified opposite such period:
PERIOD CONSOLIDATED
EBITDA
--------------------------------------------- ------------
Twelve month period ending March 31, 2005 $ 60,500,000
Twelve month period ending June 30, 2005 $ 63,500,000
Twelve month period ending September 30, 2005 $ 65,000,000
SECTION 6.10 Consolidated Fixed Charge Coverage Ratio. Permit Consolidated Fixed
Charge Coverage Ratio as of the end of any fiscal quarter falling in any period
set forth below to be less than the ratio set forth below for such period:
CONSOLIDATED
FIXED CHARGE
PERIOD COVERAGE RATIO
------------------------------------------------ --------------
Twelve month period ending December 31, 2005
and ending on each fiscal quarter end thereafter 1.25 to 1.00
SECTION 6.11 Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio as of the end of any fiscal quarter falling in any period set
forth below to be in excess of the ratio set forth below for such period:
CONSOLIDATED
PERIOD LEVERAGE RATIO
------------------------------------ --------------
fiscal quarter ending March 31, 2005 3.00 to 1.00
fiscal quarter ending June 30, 2005 3.00 to 1.00
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fiscal quarter ending September 30, 2005 3.00 to 1.00
fiscal quarter ending December 31, 2005 2.75 to 1.00
fiscal quarter ending March 31, 2006 2.50 to 1.00
fiscal quarter ending June 30, 2006 2.50 to 1.00
fiscal quarter ending September 30, 2006 and for
each fiscal quarter end thereafter 2.25 to 1.00
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01 Events of Default. It shall constitute an event of default ("Event
of Default") if any one or more of the following shall occur for any reason:
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document hereunder, or any representation, warranty,
statement or information contained in any report, certificate, financial
statement or other instrument furnished in connection with or pursuant to any
Loan Document, shall prove to have been false or misleading in any material
respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of the Loans
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration thereof or
otherwise;
(c) default shall be made in the payment of any interest on the Loans or
any fee or any other amount (other than an amount referred to in (b) above) due
under any Loan Document, when and as the same shall become due and payable, and
such default shall continue unremedied for a period of five (5) Business Days;
(d) default shall be made in the due observance or performance by any of
the Obligated Parties of any covenant, condition or agreement contained in
Sections 5.01(a) or 5.05 or in Article VI;
(e) default shall be made in the due observance or performance by any of
the Obligated Parties of any covenant, condition or agreement contained in any
Loan Document (other than those specified in (b), (c) or (d) above) and such
default shall continue unremedied for a period of 30 days after notice thereof
from the Agent to the Borrowers which notice will be given at the request of any
Lender;
(f) any of the Obligated Parties shall (i) fail to pay any principal or
interest, regardless of amount, due in respect of any Indebtedness in a
principal amount in excess of $2,500,000, when and as the same shall become due
and payable, or (ii) fail to observe or perform any other term, covenant,
condition or agreement contained in any agreement or instrument evidencing or
governing any such Indebtedness if the effect of any failure referred to in this
clause (ii) is to cause, or to permit the holder or holders of such Indebtedness
or a trustee on its or their behalf (with or without the giving of notice, the
lapse of time or both) to cause, such Indebtedness to become due prior to its
stated maturity;
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(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
liquidation, reorganization or other relief in respect of any of the Obligated
Parties, or of a substantial part of the property or assets of any of the
Obligated Parties, under the Bankruptcy Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for any of the
Obligated Parties or for a substantial part of the property or assets of any of
the Obligated Parties; and such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(h) any of the Obligated Parties shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under the Bankruptcy Code, as now constituted or hereafter amended, or
any other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or the filing of any petition described
in paragraph (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
any of the Obligated Parties or for a substantial part of the property or assets
of any of the Obligated Parties or any Subsidiary, (iv) file an answer admitting
the material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
(i) any of the Obligated Parties shall become unable, admit in writing
its inability or fail generally to pay its debts as they become due;
(j) one or more judgments for the payment of money in an aggregate
amount in excess of $2,500,000, which amount is not covered by insurance
(provided that in the event such a judgment is covered by insurance, the Agent
is provided with satisfactory evidence that the insurance provider will provide
the coverage relating thereto) shall be rendered against any of the Obligated
Parties or any combination thereof and the same shall remain undischarged for a
period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of any of the Obligated Parties to enforce any such
judgment;
(k) an ERISA Event shall have occurred that, in the reasonable opinion
of the Required Lenders, when taken together with all other such ERISA Events
that have occurred, could reasonably be expected to result in payments by
Holdings and its ERISA Affiliates in an aggregate amount exceeding (i)
$2,000,000 in any year or (ii) $5,000,000 for all periods;
(l) any security interest purported to be created by the Security
Agreement shall cease to be, or shall be asserted by the Obligated Parties or
any other Obligated Party not to be, a valid, perfected, first priority (except
as otherwise expressly provided in this Agreement, the NRG Intercreditor
Agreement or such Security Agreement) security interest in the securities,
assets or properties covered thereby, except to the extent that any such loss of
perfection or priority results from action or inaction by the Agent;
(m) there occurs any event that results in a Material Adverse Effect; or
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(n) there shall have occurred a Change in Control.
SECTION 7.02 Remedies.
(a) After the occurrence and during the continuance of any Event of
Default, the Agent may, in its discretion, and shall, at the direction of the
Majority Lenders, do one or more of the following at any time or times and in
any order, without notice to or demand on any Obligated Party: (i) reduce the
Maximum Revolver Amount, or the advance rates against the Net Amount of Eligible
Accounts, Eligible Inventory, Eligible Unbilled Accounts and/or Eligible Vessels
used in computing the Borrowing Base (including increasing the amount of any
Reserve); (ii) restrict the amount of, or refuse to make, Revolving Loans; and
(iii) instruct the Letter of Credit Issuer to restrict or refuse to provide
Letters of Credit.
(b) After the occurrence and during the continuance of any Event of
Default, the Agent shall, at the direction of the Required Lenders, do one or
more of the following: (i) take any of the actions described in clause (a)
preceding, at any time or times and in any order, without notice to or demand on
any Obligated Party; (ii) terminate the Commitments, the obligation of the
Lenders to make Revolving Loans under this Agreement, and the obligation of the
Agent to cause the Letter of Credit Issuer to issue any Letter of Credit
hereunder; (iii) declare any or all of the Obligations to be immediately due and
payable; provided, however, that upon the occurrence of any Event of Default
described in Sections 7.01(g), 7.01(h), or 7.01(i), the Commitments shall
automatically and immediately expire and all Obligations shall automatically
become immediately due and payable without notice or demand of any kind; (iv)
require the Borrowers to provide a Supporting Cash Deposit in an amount equal to
105% of all Obligations (contingent or otherwise) outstanding with respect to
Letters of Credit; and (v) pursue its other rights and remedies under the Loan
Documents and any applicable law.
(c) After the occurrence and during the continuance of any Event of
Default,: (i) the Agent shall have, for the benefit of the Agent and the
Lenders, in addition to all other rights of the Agent and the Lenders, the
rights and remedies of a secured party under the Loan Documents and the UCC;
(ii) the Agent may, at any time, take possession of the Collateral and keep it
on any Obligated Party's premises, at no cost to the Agent or any Lender, or
remove any part of the Collateral to such other place or places as the Agent may
desire, or the Obligated Parties shall, upon the Agent's demand, at the
Obligated Parties' cost, assemble the Collateral and make it available to the
Agent at a place reasonably convenient to the Agent; (iii) the Agent or the
Agent's designee may notify each Obligated Party's Account Debtors whose payment
obligations constitute Collateral that such Obligated Party's Accounts have been
assigned to the Agent and of the Agent's Lien therein, and may collect such
Accounts directly and charge the collection costs and expenses to the Loan
Account as a Revolving Loan: and (iv) the Agent may sell and deliver any
Collateral at public or private sales, for cash, upon credit, or otherwise, at
such prices and upon such terms as the Agent deems advisable, in its sole
discretion, and may, if the Agent deems it reasonable, postpone or adjourn any
sale of the Collateral by an announcement at the time and place of sale or of
such postponed or adjourned sale without giving a new notice of sale. Without in
any way requiring notice to be given in the following manner, each Obligated
Party agrees that any notice by the Agent of sale, disposition, or other
intended action hereunder or in connection herewith, whether required by the UCC
or otherwise, shall constitute reasonable notice to such Obligated Party if such
notice is mailed by registered or
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certified mail, return receipt requested, postage prepaid, or is delivered
personally against receipt, at least ten days prior to such action to such
Obligated Party's address specified in or pursuant to Section 9.02. If any
Collateral is sold on terms other than payment in full at the time of sale, no
credit shall be given against the Obligations until the Agent or the Lenders
receive payment, and if the buyer defaults in payment, the Agent may resell the
Collateral without further notice to any Obligated Party. In the event the Agent
seeks to take possession of all or any portion of the Collateral by judicial
process, each Obligated Party irrevocably waives the posting of any bond,
surety, or security with respect thereto that might otherwise be required, any
demand for possession prior to the commencement of any suit or action to recover
the Collateral, and any requirement that the Agent retain possession and not
dispose of any Collateral until after trial or final judgment. Each Obligated
Party agrees that the Agent has no obligation to preserve rights to the
Collateral or marshal any Collateral for the benefit of any Person. The Agent is
hereby granted a license or other right to use, without charge, each Obligated
Party's labels, patents, copyrights, name, trade secrets, trade names,
trademarks, and advertising matter, or any similar property, in completing
production of, advertising, or selling any Collateral, and each Obligated
Party's rights under all licenses and all franchise agreements shall inure to
the Agent's benefit for such purpose. The proceeds of sale shall be applied
first to all expenses of sale, including Attorney Costs, and then to the
Obligations as provided herein. The Agent will return any excess to the
Borrowers, and the Borrowers shall remain liable for any deficiency.
(d) Without limiting the generality of the foregoing, each Obligated
Party expressly agrees that, after the occurrence and during the continuance of
any Event of Default, the Agent, without demand of performance or other demand,
advertisement, or notice of any kind (except the notice specified below of time
and place of public or private sale) to or upon any Obligated Party or any other
Person (all and each of which demands, advertisements, and notices are hereby
expressly waived to the maximum extent permitted by the UCC and other applicable
law), may forthwith enter upon the premises of any Obligated Party where any
Collateral is located through self-help, without judicial process, without first
obtaining a final judgment or giving such Obligated Party or any other Person
notice and opportunity for a hearing on the Agent's claim or action and may
collect, receive, assemble, process, appropriate, and realize upon the
Collateral, or any part thereof, and may forthwith sell, lease, license, assign,
give an option or options to purchase, or sell or otherwise dispose of and
deliver said Collateral (or contract to do so), or any part thereof, in one or
more parcels at a public or private sale or sales, at any exchange at such
prices as the Agent may deem acceptable, for cash or on credit or for future
delivery without assumption of any credit risk. The Agent or any other Credit
Provider shall have the right upon any such public sale or sales and, to the
extent permitted by law, upon any such private sale or sales, to purchase for
the benefit of the Agent and the other Credit Providers, the whole or any part
of said Collateral so sold, free of any right or equity of redemption, which
equity of redemption each Obligated Party hereby releases. Such sales may be
adjourned and continued from time to time with or without notice. The Agent
shall have the right to conduct such sales on any Obligated Party's premises or
elsewhere and shall have the right to use each Obligated Party's premises
without charge for such time or times as the Agent deems necessary or advisable.
(e) Each Obligated Party further agrees, at the Agent's request, to
assemble the Collateral and make it available to the Agent at a place or places
designated by the Agent that are reasonably convenient to the Agent and such
Obligated Party, whether at such Obligated Party's
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premises or elsewhere. Until the Agent is able to effect a sale, lease, or other
disposition of the Collateral, the Agent shall have the right to hold or use the
Collateral, or any part thereof, to the extent that it deems appropriate for the
purpose of preserving the Collateral or its value or for any other purpose
deemed appropriate by the Agent. The Agent shall have no obligation to any
Obligated Party to maintain or preserve the rights of such Obligated Party as
against third parties with respect to any Collateral while such Collateral is in
the possession of the Agent. The Agent may, if it so elects, seek the
appointment of a receiver or keeper to take possession of the Collateral and to
enforce any of the Agent's remedies (for the benefit of the Agent and the other
Credit Providers), with respect to such appointment without prior notice or
hearing as to such appointment. The Agent shall apply the net proceeds of any
such collection, recovery, receipt, appropriation, realization, or sale to the
Obligations as provided in Section 2.11(c), and only after so paying over such
net proceeds, and after the payment by the Agent of any other amount required by
any provision of law, need the Agent account for the surplus, if any, to the
applicable Obligated Party. To the maximum extent permitted by applicable law,
each Obligated Party waives all claims, damages, and demands against the Agent
or any other Credit Provider arising out of the repossession, retention, or sale
of the Collateral except to the extent resulting from the gross negligence or
willful misconduct of the Agent or such other Credit Provider as finally
determined in a final, nonappealable judgment by a court of competent
jurisdiction. Each Obligated Party agrees that ten days prior notice by the
Agent of the time and place of any public sale or of the time after which a
private sale may take place is reasonable notification of such matters. The
Obligated Parties shall remain liable for any deficiency if the proceeds of any
sale or disposition of the Collateral are insufficient to pay all Obligations,
including any attorneys' fees or other expenses incurred by the Agent or any
other Credit Provider to collect such deficiency.
(f) Except as otherwise specifically provided herein or in the other
Loan Documents, each Obligated Party hereby waives presentment, demand, protest,
or any notice (to the maximum extent permitted by applicable law) of any kind in
connection with this Agreement or any Collateral.
(g) To the extent that applicable law imposes duties on the Agent to
exercise remedies in a commercially reasonable manner, each Obligated Party
acknowledges and agrees that it is not commercially unreasonable for the Agent
(i) to fail to incur expenses reasonably deemed significant by the Agent to
prepare Collateral for disposition or otherwise to complete raw material or
work-in-process into finished goods or other finished products for disposition,
(ii) to fail to obtain third party consents for access to Collateral to be
disposed of, or to obtain or, if not required by other law, to fail to obtain
governmental or third party consents for the collection or disposition of
Collateral to be collected or disposed of, (iii) to fail to exercise collection
remedies against Account Debtors or other Persons obligated on Collateral or to
remove Liens on or any adverse claims against Collateral, (iv) to exercise
collection remedies against Account Debtors and other Persons obligated on
Collateral directly or through the use of collection agencies and other
collection specialists, (v) to advertise dispositions of Collateral through
publications or media of general circulation, whether or not the Collateral is
of a specialized nature, (vi) to contact other Persons, whether or not in the
same business as such Obligated Party, for expressions of interest in acquiring
all or any portion of such Collateral, (vii) to hire one or more professional
auctioneers to assist in the disposition of Collateral, whether or not the
Collateral is of a specialized nature, (viii) to dispose of Collateral by
utilizing internet
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sites that provide for the auction of assets of the types included in the
Collateral or that have the reasonable capacity of doing so, or that match
buyers and sellers of assets, (ix) to dispose of assets in wholesale rather than
retail markets, (x) to disclaim disposition warranties, such as title,
possession, or quiet enjoyment, (xi) to purchase insurance or credit
enhancements to insure the Agent against risks of loss, collection, or
disposition of Collateral or to provide to the Agent a guaranteed return from
the collection or disposition of Collateral, or (xii) to the extent deemed
appropriate by the Agent, to obtain the services of other brokers, investment
bankers, consultants, and other professionals to assist the Agent in the
collection or disposition of any of the Collateral. Each Obligated Party
acknowledges that the purpose of this Section 7.02(g) is to provide
non-exhaustive indications of what actions or omissions by the Agent would not
be commercially unreasonable in the Agent's exercise of remedies against the
Collateral and that other actions or omissions by the Agent shall not be deemed
commercially unreasonable solely on account of not being indicated in this
Section 7.02(g). Without limiting the foregoing, nothing contained in this
Section 7.02(g) shall be construed to grant any rights to any Obligated Party or
to impose any duties on the Agent that would not have been granted or imposed by
this Agreement or by Requirement of Law in the absence of this Section 7.02(g).
(h) After the occurrence and during the continuance of any Event of
Default, each Obligated Party, at the Agent's request, shall execute and deliver
to the Agent such documents as the Agent shall require to grant the Agent access
to any post office box in which collections of Accounts are received.
(i) After the occurrence and during the continuance of any Event of
Default, the Borrowers will, at the Agent's request, with respect to all
Inventory financed by Letters of Credit, instruct all suppliers, carriers,
forwarders, customs brokers, warehouses, or others receiving or holding cash,
checks, Inventory, documents, or instruments in which the Agent holds a security
interest to deliver them to the Agent and/or subject to the Agent's order, and
if they shall come into any Borrower's possession, to deliver them, upon
request, to the Agent in their original form. The Borrowers shall also, at the
Agent's request, after the occurrence and during the continuance of any Event of
Default, designate the Agent as the consignee on all bills of lading and other
negotiable and non-negotiable documents or cause all such documents to designate
a Borrower as the consignee subject to the Agent's Liens.
(j) After the occurrence and during the continuance of any Event of
Default, each Obligated Party hereby waives all rights to notice and hearing
prior to the exercise by the Agent of the Agent's rights to repossess the
Collateral without judicial process or to replevy, attach, or levy upon the
Collateral without notice or hearing.
ARTICLE VIII
The Agent
SECTION 8.01 Appointment and Authorization.
(a) Each Lender hereby irrevocably appoints and designates the Bank
(acting in its capacity as the Agent) as its agent under this Agreement and the
other Loan Documents, and each Lender hereby irrevocably authorizes the Agent to
take such action on such Lender's behalf
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under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to the
Agent by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. The Agent agrees to act as
such on the express conditions contained in this Article VIII. Other than as
expressly provided in Section 8.10 and Section 8.11, the provisions of this
Article VIII are solely for the benefit of the Agent and the other Credit
Providers, and no Obligated Party shall have any rights as a third party
beneficiary of any of the provisions contained herein. Notwithstanding any
provision to the contrary contained elsewhere in this Agreement or in any other
Loan Document, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Agent have or be deemed to have
any fiduciary relationship with any Lender or 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 Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" in this Agreement or any other Loan Document with
reference to the 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. Except as expressly otherwise provided in this Agreement,
the Agent shall have and may use its sole discretion with respect to exercising
or refraining from exercising any discretionary rights or taking or refraining
from taking any actions that the Agent is expressly entitled to take or assert
under this Agreement and the other Loan Documents, including (i) the
determination of the applicability of ineligibility criteria with respect to the
calculation of the Borrowing Base, (ii) the making of Agent Advances pursuant to
Section 2.01(b)(x) and (iii) the exercise of remedies pursuant to Section 7.02,
and any action so taken or not taken shall be deemed consented to by the
Lenders.
(b) The Letter of Credit Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued hereunder and the agreements and
documents associated therewith. The Letter of Credit Issuer shall have all of
the benefits and immunities (i) provided to the Agent in this Article VIII with
respect to any acts taken or omissions suffered by the Letter of Credit Issuer
in connection with Letters of Credit issued by it, or proposed to be issued by
it, and the applications and agreements for letters of credit pertaining to such
Letters of Credit as fully as if the term "Agent" as used in this Article VIII
included the Letter of Credit Issuer with respect to such acts or omissions, and
(ii) as additionally provided herein with respect to the Letter of Credit
Issuer.
SECTION 8.02 Delegation of Duties. The Agent may 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. The
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects as long as such selection was made without
gross negligence or willful misconduct.
SECTION 8.03 Liability of the Agent. None of the Agent-Related Persons shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth
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herein), or (b) be responsible in any manner to any Credit Provider or
Participant for any recital, statement, representation, or warranty made by an
Obligated Party or any Affiliate of an Obligated Party, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement, or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability, or sufficiency of this Agreement or any other Loan Document, or
for any failure of any Obligated Party or an other party to any Loan Document to
perform its obligations hereunder or thereunder. No Agent-Related Person shall
be under any obligation to any Lender or Participant to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books, or records of either Obligated Party or any Obligated Party's
Affiliates.
SECTION 8.04 Reliance by the Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex, or telephone message, electronic mail message,
statement, or other document or conversation believed by the Agent to be genuine
and correct and to have been signed, sent, or made by the proper Person or
Persons, and upon advice and statements of legal counsel (including counsel to
any Obligated Party or any of their respective Affiliates), independent
accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Majority Lenders or the Required Lenders, as applicable, as the Agent deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Majority Lenders or the Required Lenders, as
applicable, (or all Lenders if so required hereunder) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all of the
Lenders. For purposes of determining compliance with the conditions specified in
Section 4.01, each Lender that has executed and delivered this Agreement shall
be deemed to have consented to, approved, or accepted, or to be satisfied with,
each document or other matter required thereunder to be consented to or approved
by, or acceptable or satisfactory to, a Lender unless the Agent shall have
received written notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
SECTION 8.05 Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, other than the
failure of any Borrower to make any payment of principal, interest, fees, and
expenses required to be paid to the Agent for the benefit of the Credit
Providers, unless the Agent shall have received written notice from an Obligated
Party or a Lender referring to this Agreement, describing such Default or Event
of Default and stating that such notice is a "notice of default." The Agent will
notify the Lenders of its receipt of any such notice. The Agent shall take such
action with respect to such Default or Event of Default as may be directed by
the Majority Lenders or Required Lenders, as applicable, in accordance with
Article IX; provided that unless and until the Agent has received any such
direction, the Agent may (but shall not be obligated to) take such action,
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or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Credit
Providers.
SECTION 8.06 Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to such Lender,
and that no act by the Agent hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of the Obligated Parties
and their Affiliates, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender as to any matter, including
whether any Agent-Related Person has disclosed material information in its
possession. Each Lender represents to the Agent that such Lender has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as such Lender has deemed appropriate, made its
own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition, and creditworthiness of the Obligated
Parties and their Affiliates, and any Requirement of Law relating to the
transactions contemplated hereby, and such Lender has made its own decision to
enter into this Agreement and to extend credit to the Obligated Parties
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as such Lender shall deem appropriate at the time, continue to make
its own credit analysis, appraisals, and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition, and
creditworthiness of the Obligated Parties and their Affiliates. Except for
notices, reports, and other documents expressly herein required to be furnished
to the Lenders by the Agent, the Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, prospects, operations, property, financial and other condition, or
creditworthiness of any Borrower or any of their Affiliates that may come into
the possession of any of the Agent-Related Persons.
SECTION 8.07 Indemnification. WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED
HEREBY ARE CONSUMMATED, THE LENDERS SHALL, UPON DEMAND, INDEMNIFY THE
AGENT-RELATED PERSONS (TO THE EXTENT NOT REIMBURSED BY OR ON BEHALF OF THE
OBLIGATED PARTIES AND WITHOUT LIMITING THE OBLIGATION OF THE OBLIGATED PARTIES
TO DO SO), IN ACCORDANCE WITH THEIR PRO RATA SHARES, AND HOLD HARMLESS EACH
AGENT-RELATED PERSON FROM AND AGAINST ANY AND ALL INDEMNIFIED LIABILITIES (AS
SUCH TERM IS DEFINED IN SECTION 9.04(b)) SOLELY TO THE EXTENT ACTING IN ITS
CAPACITY AS AGENT; PROVIDED THAT NO LENDER SHALL BE LIABLE FOR THE PAYMENT TO
ANY AGENT-RELATED PERSON OF ANY PORTION OF SUCH INDEMNIFIED LIABILITIES TO THE
EXTENT DETERMINED IN A FINAL, NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED FROM SUCH AGENT-RELATED PERSON'S OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT; PROVIDED, FURTHER, THAT NO ACTION TAKEN IN
ACCORDANCE WITH THE DIRECTIONS OF THE MAJORITY LENDERS OR THE REQUIRED LENDERS,
AS APPLICABLE, SHALL BE DEEMED TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT FOR PURPOSES OF THIS SECTION. Without limitation of the foregoing,
each Lender shall reimburse the Agent upon demand for its Pro Rata Share of any
costs or out-of-pocket expenses (including Attorney Costs)
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incurred by the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether through
negotiations, legal proceedings, or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the Agent
is not reimbursed for such expenses by or on behalf of the Obligated Parties.
The undertaking in this Section 8.07 shall survive the termination of the
Commitments, payment of all Obligations hereunder, and the resignation or
replacement of the Agent.
SECTION 8.08 The Agent in its Individual Capacity. The Bank and its Affiliates
may make loans to, issue letters of credit for the account of, accept deposits
from, acquire equity interests in, and generally engage in any kind of banking,
trust, financial advisory, underwriting, or other business with any Obligated
Party and its Affiliates as though the Bank were not the Agent or the Letter of
Credit Issuer hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, the Bank or its
Affiliates may receive information regarding an Obligated Party, its Affiliates,
and Account Debtors (including information that may be subject to
confidentiality obligations in favor of any such Obligated Party or Affiliate),
and the Lenders acknowledge that the Agent and the Bank shall be under no
obligation to provide such information to the Lenders. With respect to its
Loans, the Bank as a Lender shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not
the Agent or the Letter of Credit Issuer, and the terms "Lender" and "Lenders"
include the Bank in its individual capacity.
SECTION 8.09 Successor Agent. The Agent may resign as Agent (the "resigning
Agent") upon at least 30 days prior notice to the Lenders and the Borrowers (and
any such resignation by the Bank shall also constitute its resignation as the
Letter of Credit Issuer hereunder (the "resigning Letter of Credit Issuer")). In
the event the Bank sells all of its Commitment and Loans as part of a sale,
transfer, or other disposition by the Bank of substantially all of its loan
portfolio, the Bank shall resign as the Agent and such purchaser or transferee
shall become the successor Agent hereunder. Subject to the foregoing, if the
Agent resigns under this Agreement, the Majority Lenders shall appoint from
among the Lenders a successor administrative agent and collateral agent (any
Person being appointed as successor to the resigning Agent being referred to in
this Section as the "successor Agent," and any such appointment shall also
constitute appointment of the successor Agent as the Letter of Credit Issuer
hereunder (the "successor Letter of Credit Issuer")) for the Lenders that shall
be consented to by the Borrowers at all times other than during the existence of
a Default or an Event of Default (such consent not to be unreasonably withheld
or delayed). If no successor Agent is appointed prior to the effective date of
the resignation of the resigning Agent, the resigning Agent may appoint, after
consulting with the Lenders and the Borrowers, a successor Agent from among the
Lenders. Upon the acceptance of its appointment as the successor Agent
hereunder, (a) the successor Agent shall succeed to all the rights, powers, and
duties of the resigning Agent and the resigning Letter of Credit Issuer, (b) the
respective terms "Agent" and "Letter of Credit Issuer" shall mean the successor
Agent and the successor Letter of Credit Issuer, and (c) the resigning Agent's
appointment, rights, powers, and duties as the Agent shall be terminated, and
(d) the resigning Letter of Credit Issuer's appointment, rights, powers, and
duties as the Letter of Credit Issuer shall be terminated without any other or
further act or deed on the part of the resigning Letter of Credit Issuer or any
Lender, other than the obligation of the successor Letter of Credit Issuer to
issue Letters of Credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or to
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make other arrangements satisfactory to the resigning Letter of Credit Issuer to
effectively assume the obligations of the resigning Letter of Credit Issuer with
respect to its Letters of Credit. After any resigning Agent's resignation
hereunder as the Agent, the provisions of this Article VIII, Section 2.13, and
Section 9.04 shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was the Agent under this Agreement. If no
successor Agent has accepted appointment as successor Agent within 30 days of
the resigning Agent's notice of resignation, the resigning Agent's resignation
shall nevertheless thereupon become effective and the Lenders shall perform all
of the duties of the Agent hereunder until such time, if any, as the Majority
Lenders appoint a successor Agent as provided for in this Section 8.09.
SECTION 8.10 Collateral Matters.
(a) The Credit Providers hereby irrevocably authorize the Agent to
release any Agent's Liens upon any Collateral (i) upon (A) termination of the
Commitments, (B) termination or collateralization as provided in Section 2.03(g)
of all outstanding Letters of Credit (whether or not any of such obligations are
due), and (C) the Obligated Parties' payment and satisfaction in full of all
Loans and other Obligations (other than indemnification obligations to the
extent no claim with respect thereto has been asserted and remains unsatisfied)
(ii) constituting property being sold or disposed of if the Obligated Parties
certify to the Agent that the sale or disposition is made in compliance with
Section 6.04 (and the Agent may rely conclusively on any such certification,
without further inquiry), or (iii) constituting property in which the Obligated
Parties owned no interest at the time the Lien was granted or at any time
thereafter. Except as provided above, the Agent will not release any of the
Agent's Liens without the prior written authorization of the Lenders; provided
that the Agent may, in its discretion, release the Agent's Liens on Collateral
valued in the aggregate not in excess of $5,000,000 during each fiscal year
without the prior written authorization of any Lender. Upon request by the Agent
or the Obligated Parties at any time, the Credit Parties will confirm in writing
the Agent's authority to release any Guarantor and any of the Agent's Liens upon
particular types or items of Collateral in accordance with the terms of this
Section 8.10.
(b) Upon receipt by the Agent of any authorization required pursuant to
Section 8.10(a) from the Majority Lenders of the Agent's authority to release
any Agent's Liens upon particular types or items of Collateral, and upon at
least five Business Days prior written request by an Obligated Party, the Agent
shall (and is hereby irrevocably authorized by the Lenders to) execute such
documents as may be necessary to evidence the release of the Agent's Liens upon
such Collateral; provided that (i) the Agent shall not be required to execute
any such document on terms that, in the Agent's opinion, would expose the Agent
to liability or create any obligation or entail any consequence other than the
release of such Liens without recourse or warranty, and (ii) such release shall
not in any manner discharge, affect, or impair the Obligations or any Liens
(other than those expressly being released) upon (or obligations of the
Obligated Parties in respect of) all interests retained by the Obligated
Parties, including the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.
(c) The Agent shall have no obligation whatsoever to any of the Credit
Providers to assure that the Collateral exists or is owned by the Obligated
Parties or is cared for, protected, or insured or has been encumbered, or that
the Agent's Liens have been properly or sufficiently or lawfully created,
perfected, protected, or enforced or are entitled to any particular priority, or
to
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exercise at all or in any particular manner or under any duty of care,
disclosure, or fidelity, or to continue exercising, any of the rights,
authorities, and powers granted or available to the Agent pursuant to any of the
Loan Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission, or event related thereto, the Agent may act in
any manner it may deem appropriate, in its sole discretion, given the Agent's
own interest in the Collateral in its capacity as one of the Lenders and that
the Agent shall have no other duty or liability whatsoever to any Credit
Provider as to any of the foregoing.
SECTION 8.11 Restrictions on Actions by Lenders; Sharing of Payments.
(a) Each of the Credit Providers (in their respective capacity as a
Lender or as an Agent-Related Person hereunder) agrees that it shall not setoff
against the Obligations, any amounts owing by such Credit Provider to any
Obligated Party or any accounts of any Obligated Party now or hereafter
maintained with such Lender. Each of the Credit Providers further agrees that it
shall not, unless specifically requested to do so by the Agent, take or cause to
be taken any action to enforce its rights under this Agreement or any other Loan
Document or against any Obligated Party, including the commencement of any legal
or equitable proceedings, to foreclose any Lien on, or otherwise enforce any
security interest in, any of the Collateral.
(b) If at any time or times any Credit Provider shall receive (i) by
payment, foreclosure, setoff, or otherwise, any proceeds of Collateral or any
payments with respect to the Obligations owing to such Credit Provider arising
under, or relating to, this Agreement or the other Loan Documents, except for
any such proceeds or payments received by such Credit Provider from the Agent
pursuant to the terms of this Agreement, or (ii) payments from the Agent in
excess of such Credit Provider's ratable portion of all such distributions by
the Agent, such Credit Provider shall promptly (A) turn the same over to the
Agent, in kind, and with such endorsements as may be required to negotiate the
same to the Agent, or in same day funds, as applicable, for the account of all
of the Credit Providers and for application to the Obligations in accordance
with the applicable provisions of this Agreement, or (B) purchase, without
recourse or warranty, an undivided interest and participation in the Obligations
owed to the other Lenders so that such excess payment received shall be applied
among the Credit Providers in accordance with the terms of this Agreement;
provided that if all or part of such excess payment received by the purchasing
party is thereafter recovered from it, those purchases of participations shall
be rescinded in whole or in part, as applicable, and the applicable portion of
the purchase price paid therefor shall be returned to such purchasing party, but
without interest except to the extent that such purchasing party is required to
pay interest in connection with the recovery of the excess payment.
SECTION 8.12 Agency for Perfection. Each Credit Provider hereby appoints each
other Credit Provider as agent for the purpose of perfecting Liens, for the
benefit of the Credit Providers, in assets that, in accordance with Article 9 of
the UCC or any other applicable law can be perfected only by possession. Should
any Credit Provider (other than the Agent) obtain possession of any such
Collateral, such Credit Provider shall notify the Agent thereof, and, promptly
upon the Agent's request therefor, shall deliver such Collateral to the Agent or
otherwise deal with such Collateral in accordance with the Agent's instructions.
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SECTION 8.13 Payments by Agent to the Lenders. All payments to be made by the
Agent to the Credit Providers shall be made by bank wire transfer or internal
transfer of immediately available funds to each Credit Provider pursuant to
transfer instructions delivered in writing to the Agent on or prior to the
Closing Date (or if such Credit Provider is an Assignee, delivered with or in
the applicable Assignment and Acceptance), or pursuant to such other transfer
instructions as each party may designate for itself by written notice to the
Agent. Concurrently with each such payment, the Agent shall identify whether
such payment (or any portion thereof) represents principal, premium, interest,
or fees on the Revolving Loans, the Letters of Credit, or otherwise. Unless the
Agent receives notice from the Borrowers prior to the date on which any payment
is due to any Credit Provider that the Borrowers will not make such payment in
full as and when required, the Agent may assume that the Borrowers have made
such payment in full to the Agent on such date in immediately available funds
and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Credit Provider on such due date an amount equal
to the amount then due such Credit Provider. If and to the extent the Borrowers
have not made such payment in full to the Agent, each Credit Provider shall
repay to the Agent on demand such amount distributed to such Credit Provider,
together with interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Credit Provider until the date repaid.
SECTION 8.14 Settlement.
(a) Each Lender's funded portion of the Revolving Loans is intended by
the Lenders to be equal at all times to such Lender's Pro Rata Share of the
outstanding Revolving Loans. Notwithstanding such agreement, the Agent, the
Bank, and the Lenders agree (which agreement shall not be for the benefit of or
enforceable by the Obligated Parties) that in order to facilitate the
administration of this Agreement and the other Loan Documents, settlement among
them as to the Revolving Loans, including the Non-Ratable Loans and the Agent
Advances, shall take place on a periodic basis in accordance with the following
provisions:
(i) The Agent shall request settlement (a "Settlement") with the
Lenders on at least a weekly basis, or on a more frequent basis at the Agent's
election, (A) on behalf of the Bank, with respect to each outstanding
Non-Ratable Loan, (B) for itself, with respect to each Agent Advance, and (C)
with respect to collections received, in each case, by notifying the Lenders of
such requested Settlement by telecopy, telephone, or other similar form of
transmission, of such requested Settlement, no later than 3:00 p.m. (Chicago,
Illinois time) on the date of such requested Settlement (the "Settlement Date").
In its discretion, the Agent may on any Settlement Date permit Non-Ratable Loans
in an aggregate principal amount not to exceed Five Million Dollars ($5,000,000)
to remain outstanding, while requiring Settlement of the other outstanding
Non-Ratable Loans. Each Lender (other than the Bank, in the case of the
Non-Ratable Loans, and the Agent, in the case of the Agent Advances) shall
transfer the amount of such Lender's Pro Rata Share of the outstanding principal
amount of the Non-Ratable Loans and Agent Advances with respect to which
Settlement is requested to the Agent, to such account of the Agent as the Agent
may designate, not later than 3:00 p.m. (Chicago, Illinois time), on the
Settlement Date applicable thereto. Settlements shall occur during the
continuation of a Default or an Event of Default and whether or not the
applicable conditions precedent set forth in Article 9 have then been satisfied.
Such amounts transferred to the Agent shall be applied against the amounts of
the applicable Non-Ratable Loan or Agent Advance for which the Agent has
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requested Settlement and, together with the portion of such Non-Ratable Loan or
Agent Advance representing the Bank's or the Agent's Pro Rata Share thereof,
shall constitute Revolving Loans of such Lenders, respectively. If any such
amount is not transferred to the Agent by any Lender on the Settlement Date
applicable thereto, the Agent shall be entitled to recover such amount on demand
from such Lender together with interest thereon at the Federal Funds Rate for
the first three days from and after the Settlement Date and thereafter at the
Interest Rate then applicable to Base Rate Loans (1) on behalf of the Bank, with
respect to each outstanding Non-Ratable Loan and (2) for itself, with respect to
each Agent Advance.
(ii) Notwithstanding the foregoing, not more than one Business Day
after demand is made by the Agent (whether before or after the occurrence of a
Default or an Event of Default and regardless of whether the Agent has requested
a Settlement with respect to a Non-Ratable Loan or Agent Advance), each other
Lender (A) shall irrevocably and unconditionally purchase and receive from the
Bank or the Agent, as applicable, without recourse or warranty, an undivided
interest and participation in such Non-Ratable Loan or Agent Advance equal to
such Lender's Pro Rata Share of such Non-Ratable Loan or Agent Advance, and (B)
if Settlement has not previously occurred with respect to such Non-Ratable Loans
or Agent Advances, upon demand by the Bank or the Agent, as applicable, shall
pay to the Bank or the Agent, as applicable, as the purchase price of such
participation an amount equal to 100% of such Lender's Pro Rata Share of such
Non-Ratable Loans or Agent Advances. If such amount is not in fact transferred
to the Agent by any Lender, the Agent shall be entitled to recover such amount
on demand from such Lender together with interest thereon at the Federal Funds
Rate for the first three days from and after such demand and thereafter at the
Interest Rate then applicable to Base Rate Loans.
(iii) From and after the date, if any, on which any Lender purchases
an undivided interest and participation in any Non-Ratable Loan or Agent Advance
pursuant to clause (ii) preceding, the Agent shall promptly distribute to such
Lender, such Lender's Pro Rata Share of all payments of principal and interest
and all proceeds of Collateral received by the Agent in respect of such
Non-Ratable Loan or Agent Advance.
(iv) Between Settlement Dates, to the extent no Agent Advances are
outstanding, the Agent may pay over to the Bank any payments received by the
Agent, which in accordance with the terms of this Agreement would be applied to
the reduction of the Revolving Loans, for application to the Bank's Revolving
Loans, including Non-Ratable Loans. If, as of any Settlement Date, collections
received since the then immediately preceding Settlement Date have been applied
to the Bank's Revolving Loans (other than to Non-Ratable Loans or Agent Advances
in which a Lender has not yet funded its purchase of a participation pursuant to
clause (ii) preceding), as provided for in the previous sentence, the Bank shall
pay to the Agent for the accounts of the Lenders, to be applied to the
outstanding Revolving Loans of such Lenders, an amount such that each Lender
shall, upon receipt of such amount, have, as of such Settlement Date, its Pro
Rata Share of the Revolving Loans. During the period between Settlement Dates,
the Bank with respect to Non-Ratable Loans, the Agent with respect to Agent
Advances, and each Lender with respect to the Revolving Loans other than
Non-Ratable Loans and Agent Advances, shall be entitled to interest at the
applicable rate or rates payable under this Agreement on the actual average
daily amount of funds employed by the Bank, the Agent, and the other Lenders.
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(v) Unless the Agent has received written notice from a Lender to
the contrary, the Agent may assume that the applicable conditions precedent set
forth in Article IV have been satisfied and the requested Borrowing will not
exceed the Unused Availability on any Funding Date for a Revolving Loan or
Non-Ratable Loan.
(b) The Lenders' Failure to Perform. All Revolving Loans (other than
Non-Ratable Loans and Agent Advances) shall be made by the Lenders
simultaneously and in accordance with their Pro Rata Shares. It is understood
that (i) no Lender shall be responsible for any failure by any other Lender to
perform its obligation to make any Revolving Loans hereunder, nor shall any
Commitment of any Lender be increased or decreased as a result of any failure by
any other Lender to perform its obligation to make any Revolving Loans
hereunder, (ii) no failure by any Lender to perform its obligation to make any
Revolving Loans hereunder shall excuse any other Lender from its obligation to
make any Revolving Loans hereunder, and (iii) the obligations of each Lender
hereunder shall be several, not joint and several.
(c) Defaulting Lenders. Unless the Agent receives notice from a Lender
on or prior to the Closing Date or, with respect to any Borrowing after the
Closing Date, at least one Business Day prior to the date of such Borrowing,
that such Lender will not make available as and when required hereunder to the
Agent such Lender's Pro Rata Share of such Borrowing, the Agent may assume that
each Lender has made such amount available to the Agent in immediately available
funds on the Funding Date. Furthermore, the Agent may, in reliance upon such
assumption, make available to the Borrowers on such date a corresponding amount.
If any Lender has not transferred its full Pro Rata Share to the Agent in
immediately available funds and if the Agent has transferred a corresponding
amount to the Borrowers, on the Business Day following such Funding Date the
applicable Lender shall make such amount available to the Agent, together with
interest at the Federal Funds Rate for that day. A notice by the Agent submitted
to any Lender with respect to amounts owing shall be conclusive, absent manifest
error. If each Lender's full Pro Rata Share is transferred to the Agent as
required, the amount transferred to the Agent shall constitute such Lender's
Revolving Loan for all purposes of this Agreement. If any such amount is not
transferred to the Agent on the Business Day following the Funding Date, the
Agent will notify the Borrowers of such failure to fund and, upon demand by the
Agent, the Borrowers shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of such
Borrowing, at a rate per annum equal to the Interest Rate applicable at the time
to the Revolving Loans comprising that particular Borrowing provided that in
such event Borrowers shall not be required to pay any breakage fees which may
otherwise be provided for under this Agreement. The failure of any Lender to
make any Revolving Loan on any Funding Date (any such Lender, prior to the cure
of such failure, being referred to herein as a "Defaulting Lender") shall not
relieve any other Lender of its obligation hereunder to make a Revolving Loan on
such Funding Date. No Lender shall be responsible for any other Lender's failure
to advance such other Lenders' Pro Rata Share of any Borrowing.
(d) Retention of Defaulting Lender's Payments. The Agent shall not be
obligated to transfer to a Defaulting Lender any payments made by the Borrowers
to the Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender
be entitled to the sharing of any payments hereunder. Amounts payable to a
Defaulting Lender shall instead be paid to or retained by the Agent. In its
discretion, the Agent may loan the Borrowers the amount of all
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such payments received or retained by it for the account of such Defaulting
Lender. Any amounts so loaned to the Borrowers shall bear interest at the rate
applicable to Base Rate Loans and for all other purposes of this Agreement shall
be treated as if they were Revolving Loans, provided, however, that for purposes
of voting or consenting to matters with respect to the Loan Documents and
determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a
"Lender." Until a Defaulting Lender cures its failure to fund its Pro Rata Share
of any Borrowing (i) such Defaulting Lender shall not be entitled to any portion
of the Unused Line Fee and (ii) the Unused Line Fee shall accrue in favor of the
Lenders that have funded their respective Pro Rata Shares of such requested
Borrowing and shall be allocated among such performing Lenders ratably based
upon their relative Commitments. This Section shall remain effective with
respect to such Lender until such time as the Defaulting Lender shall no longer
be in default of any of its obligations under this Agreement. The terms of this
Section shall not be construed to increase or otherwise affect the Commitment of
any Lender, or relieve or excuse the performance by any Obligated Party of its
duties and obligations hereunder.
(e) Removal of Defaulting Lender. At the Borrowers' request, the Agent
(acting in its individual capacity as a Lender) or an Eligible Assignee
reasonably acceptable to the Agent and the Borrowers shall have the right (but
not the obligation) to purchase from any Defaulting Lender, and each Defaulting
Lender shall, upon such request, sell and assign to the Agent (acting in its
individual capacity as a Lender) or such Eligible Assignee, all of the
Defaulting Lender's outstanding Loans and Commitments hereunder. Such sale shall
be consummated promptly after the Agent has arranged for a purchase by the Agent
(acting in its individual capacity as a Lender) or an Eligible Assignee pursuant
to an Assignment and Acceptance, and at a price equal to the outstanding
principal balance of the Defaulting Lender's Loans, plus accrued interest and
fees (excluding the Unused Line Fee to the extent not required to be paid to the
Defaulting Lender pursuant to Section 8.14(d)), without premium or discount.
SECTION 8.15 Letters of Credit; Intra-Lender Issues.
(a) Notice of Letter of Credit Balance. On each Settlement Date, the
Agent shall notify each Lender of the issuance of any Letters of Credit since
the prior Settlement Date.
(b) Participations in Letters of Credit.
(i) Purchase of Participations. Immediately upon issuance of any
Letter of Credit in accordance with Section 2.03(d), each Lender shall be deemed
to have irrevocably and unconditionally purchased and received without recourse
or warranty, an undivided interest and participation equal to such Lender's Pro
Rata Share of the face amount of such Letter of Credit in connection with the
issuance of such Letter of Credit (including all obligations of the Borrowers,
and any security therefor or guaranty pertaining thereto).
(ii) Sharing of Reimbursement Obligation Payments. Whenever the
Agent receives a payment from a Borrower on account of reimbursement obligations
in respect of a Letter of Credit as to which the Agent has previously received
for the account of the Agent or the Letter of Credit Issuer payment from a
Lender, the Agent shall pay to such Lender such Lender's Pro Rata Share of such
payment from the Borrower. Each such payment shall be made by the Agent on the
next Settlement Date.
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(iii) Documentation. Upon the request of any Lender, the Letter of
Credit Issuer shall furnish to the Agent and the Agent shall furnish to such
Lender copies of any Letter of Credit, reimbursement agreements executed in
connection therewith, applications for any Letter of Credit, and such other
documentation relating to such Letter of Credit as may reasonably be requested
by such Lender.
(iv) Obligations Irrevocable. The obligation of each Lender to make
payments to the Agent with respect to any Letter of Credit or with respect to
their participation therein or with respect to the Revolving Loans made as a
result of a drawing under a Letter of Credit and the obligation of the Borrowers
to make payments to the Agent, for the account of the Lenders, with respect to
any Letter of Credit shall be irrevocable and shall not be subject to any
qualification or exception whatsoever, including any of the following
circumstances:
(A) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(B) the existence of any claim, setoff, defense, or other
right that any Borrower may have at any time against a beneficiary
named in a Letter of Credit or any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting),
any Lender, the Agent, the Letter of Credit Issuer, or any other
Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transactions between any
Borrower or any other Person and the beneficiary named in any Letter
of Credit);
(C) any draft, certificate, or other document presented under
any 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;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(E) the occurrence of any Default or Event of Default; or
(F) the failure of the Borrowers to satisfy the applicable
conditions precedent set forth in Article IV.
(c) Recovery or Avoidance of Payments; Refund of Payments in Error. In
the event any payment by or on behalf of the Borrowers received by the Agent
with respect to any Letter of Credit and distributed by the Agent to the Lenders
on account of their respective participations therein is thereafter set aside,
avoided, or recovered from the Agent or the Letter of Credit Issuer in
connection with any receivership, liquidation, or bankruptcy proceeding, the
Lenders shall, upon demand by the Agent, pay to the Agent their respective Pro
Rata Shares of such amount set aside, avoided, or recovered, together with
interest at the rate required to be paid by the Agent or the Letter of Credit
Issuer upon the amount required to be repaid by it. Unless the Agent receives
notice from the Borrowers prior to the date on which any payment is due to the
Lenders that the Borrowers will not make such payment in full as and when
required, the Agent may assume that the Borrowers have made such payment in full
to the Agent on such date in
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immediately available funds and the Agent may (but shall not be so required), in
reliance upon such assumption, distribute to each Lender on such due date an
amount equal to the amount then due such Lender. If and to the extent the
Borrowers have not made such payment in full to the Agent, each Lender shall
repay to the Agent on demand such amount distributed to such Lender, together
with interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Lender until the date repaid.
(d) Indemnification by the Lenders. To the extent not reimbursed by the
Borrowers and without limiting the obligations of the Borrowers hereunder, the
Lenders agree to indemnify the Letter of Credit Issuer ratably in accordance
with their respective Pro Rata Shares, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including attorneys' fees) or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against the Letter of Credit
Issuer in any way relating to or arising out of any Letter of Credit or the
transactions contemplated thereby or any action taken or omitted by the Letter
of Credit Issuer under any Letter of Credit or any Loan Document in connection
therewith; provided that no Lender shall be liable for any of the foregoing to
the extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from the Letter of Credit Issuer's own gross
negligence or willful misconduct. Without limiting the foregoing, each Lender
agrees to reimburse the Letter of Credit Issuer promptly upon demand for its Pro
Rata Share of any costs or expenses payable by the Borrowers to the Letter of
Credit Issuer, to the extent that the Letter of Credit Issuer is not promptly
reimbursed for such costs and expenses by the Borrowers. The agreement contained
in this Section shall survive payment in full of all other Obligations.
SECTION 8.16 Concerning the Collateral and the Related Loan Documents. Each
Lender authorizes and directs the Agent to enter into the other Loan Documents,
for the benefit and obligation of the Credit Providers. Each Lender agrees that
any action taken by the Agent, the Required Lenders, or the Majority Lenders, as
applicable, in accordance with the terms of this Agreement or the other Loan
Documents, and the exercise by the Agent, the Required Lenders, or the Majority
Lenders, as applicable, of their respective powers set forth therein or herein,
together with such other powers that are reasonably incidental thereto, shall be
binding upon all of the Lenders. The Lenders acknowledge that the Revolving
Loans (including the Agent Advances and the Non-Ratable Loans), Bank Products,
and all interest, fees, and expenses hereunder constitute one Indebtedness,
secured pari passu by all of the Collateral, subject to the order of
distribution of payments set forth in Section 2.11(e).
SECTION 8.17 Field Audit and Examination Reports; Disclaimer by Lenders. By
signing this Agreement, each Lender:
(a) is deemed to have requested that the Agent furnish such Lender,
promptly after it becomes available, a copy of each field audit or examination
report (each a "Report" and collectively, the "Reports") prepared by or on
behalf of the Agent;
(b) expressly agrees and acknowledges that neither the Bank nor the
Agent (i) makes any representation or warranty as to the accuracy of any Report
or (ii) shall be liable for any information contained in any Report;
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(c) expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that the Agent, the Bank, or any other
Person performing any audit or examination will inspect only specific
information regarding the Obligated Parties and will rely significantly upon the
Obligated Parties' books and records, as well as on representations of the
Obligated Parties' personnel;
(d) agrees to keep all Reports confidential and strictly for its
internal use, and not to distribute except to any assignee or Participant (or
any potential assignee or Participant), or use any Report in any other manner;
and
(e) without limiting the generality of any other indemnification provision
contained in this Agreement, agrees: (i) to hold the Agent and any such other
Person preparing a Report harmless from any action the indemnifying Lender may
take or conclusion the indemnifying Lender may reach or draw from any Report in
connection with any loans or other credit accommodations that the indemnifying
Lender has made or may make to the Borrower, or the indemnifying Lender's
participation in, or the indemnifying Lender's purchase of, a loan or loans to
the Borrowers; and (ii) to pay and protect, and indemnify, defend, and hold the
Agent and any such other Person preparing a Report harmless from and against,
the claims, actions, proceedings, damages, costs, expenses, and other amounts
(including Attorney Costs) incurred by the Agent and any such other Person
preparing a Report as the direct or indirect result of any third parties who
might obtain all or part of any Report through the indemnifying Lender.
SECTION 8.18 Relation Among the Lenders. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in the case of the Agent) authorized to
act for, any other Lender.
SECTION 8.19 Syndication Agent. Each Lender hereby irrevocably appoints and
designates UBS Securities LLC (acting in its capacity as the Syndication Agent)
as its syndication agent under this Agreement and the other Loan Documents. UBS
Securities LLC, as "Syndication Agent", shall have no right, power, obligation,
liability, responsibility or duty under this Agreement or any of the Loan
Documents. Without limiting the foregoing, UBS Securities LLC shall not have or
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on UBS Securities LLC in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
SECTION 8.20 Co-Documentation Agents. Each Lender hereby irrevocably appoints
and designates Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx Business
Financial Services Inc. ("Xxxxxxx Xxxxx"), The CIT Group/Business Credit, Inc.,
and Xxxxx Fargo Foothill, LLC (acting in their individual capacities as
Co-Documentation Agents) as its co-documentation agents under this Agreement and
the other Loan Documents. Each of Xxxxxxx Xxxxx, The CIT Group/Business Credit,
Inc., and Xxxxx Fargo Foothill, LLC, as "Co-Documentation Agent", shall have no
right, power, obligation, liability, responsibility or duty under this Agreement
or any of the Loan Documents. Without limiting the foregoing, each of Xxxxxxx
Xxxxx, The CIT Group/Business Credit, Inc., and Xxxxx Fargo Foothill, LLC shall
not have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on Xxxxxxx Xxxxx,
The CIT Group/Business Credit, Inc., or Xxxxx Fargo Foothill, LLC in deciding to
enter into this Agreement or in taking or not taking action hereunder.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01 [RESERVED].
SECTION 9.02 Notices.
(a) Except as otherwise provided herein, all notices, demands, and
requests that any party is required or elects to give to any other party shall
be in writing, or by a telecommunications device capable of creating a written
record, and any such notice shall become effective (i) upon personal delivery
thereof, including, but not limited to, delivery by overnight mail or courier
service, (ii) four days after it shall have been mailed by U.S. mail, first
class, certified or registered, with postage prepaid, or (iii) in the case of
notice by such a telecommunications device, when properly transmitted and
confirmed, in each case addressed to the party to be notified as follows:
If to the Agent
or to the Bank: Bank of America, N.A.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telecopy No.: 000 000-0000
If to any Obligated Party: c/o American Commercial Lines LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, Xxxxxxx 00000
Attention: SVP Law & Administration
Telecopy No.: 000 000-0000
If to a Lender, to the address of such Lender set forth on Schedule 1.1(A)
of this Agreement or on the most recent Assignment and Acceptance to which
such Lender is a party, or to such other address as each party may
designate for itself by like notice.
(b) Loan Documents may be transmitted and/or signed by facsimile. The
effectiveness of any such Loan Documents and signatures shall, subject to
applicable law, have the same force and effect as manually signed originals and
shall be binding on the Obligated Parties that are parties thereto, the Agent,
the Lenders, and all other parties to the Loan Documents. The Agent may also
require that any such documents and signatures be confirmed by a manually signed
original thereof, provided that the failure to request or deliver the same shall
not limit the effectiveness of any facsimile document or signature.
(c) The Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic notices in lieu of written Notices of Borrowing
and Notices of
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Continuation/Conversion) purportedly given by or on behalf of the Borrowers even
if (i) such notices were not made in a manner specified herein, (ii) such
notices were incomplete or were not preceded or followed by any other form of
notice specified herein, or (iii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Obligated Parties shall
indemnify each Credit Provider from all losses, costs, expenses, and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrowers. All telephonic notices to and other
communications with the Agent may be recorded by the Agent, and each of the
parties hereto hereby consents to such recording.
(d) Notwithstanding anything in this Agreement or any other Loan
Document to the contrary, each Obligated Party agrees to use reasonable efforts
to provide all Communications (as defined below) to the Agent in an
electronic/soft medium in a format acceptable to the Agent to the e-mail
addresses specified by the Agent to ACL from time to time. As used in this
Section 9.02 "Communications" means all information, documents and other
materials that any Obligated Party is obligated to furnish to the Agent pursuant
to this Agreement or any other Loan Document, including all notices, requests,
Financial Statements, financial and other reports, certificates, and other
information materials, but excluding any such information, documents, or
materials that (i) relate to any request for a Borrowing or a continuation or a
conversion of any existing Loan (including any election of an interest rate or
the duration of an Interest Period), (ii) relate to the payment of any principal
or other amount due under this Agreement or any other Loan Document prior to the
scheduled date therefor, (iii) provide notice of any Default or Event of
Default; or (iv) are required to be delivered to satisfy any condition set forth
in Section 4.01 or Section 4.02.
(e) Each Obligated Party and each Credit Provider agrees that the Agent
may make the Loan Documents and the Communications, together with other
information relating to the Obligated Parties and their business and assets,
including Borrowing Base Certificates, appraisals, and Reports, (all such other
information being referred to collectively in this Section 9.02 as the "Other
Information"), available to the Credit Providers by posting on Intralinks or a
substantially similar electronic transmission system approved by the Borrowers
(which approval shall not be unreasonably withheld) (each such system being
referred to in this Section 9.02 as a "Platform"). Each Obligated Party (i)
acknowledges that the distribution of material through an electronic medium is
not necessarily secure and that there are confidentiality and other risks
associated with such distribution and (ii) agrees that posting of the
Communications and Other Information to a Platform will not in any event
constitute a breach of the confidentiality provisions of Section 9.13.
(f) EACH PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT-RELATED PERSONS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY LOAN
DOCUMENTS, COMMUNICATIONS, OR OTHER INFORMATION POSTED BY ANY AGENT-RELATED
PERSON TO ANY PLATFORM, OR THE ADEQUACY OF ANY PLATFORM, AND THE AGENT-RELATED
PERSONS AND THE OTHER CREDIT PROVIDERS EXPRESSLY DISCLAIM ANY LIABILITY FOR
ERRORS OR OMISSIONS IN ANY LOAN DOCUMENTS, COMMUNICATIONS, OR OTHER INFORMATION
AS POSTED ON ANY PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR
STATUTORY (INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT
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OF THIRD PARTY RIGHTS, OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS) IS MADE BY
THE AGENT-RELATED PERSONS OR ANY OTHER CREDIT PROVIDER IN CONNECTION WITH THE
LOAN DOCUMENTS, COMMUNICATIONS, OR OTHER INFORMATION OR ANY PLATFORM. IN NO
EVENT SHALL ANY AGENT-RELATED PERSON OR ANY OTHER CREDIT PROVIDER HAVE ANY
LIABILITY TO ANY OBLIGATED PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND
(INCLUDING DIRECT OR INDIRECT DAMAGES, SPECIAL DAMAGES, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN CONTRACT, TORT OR
OTHERWISE)) ARISING OUT OF ANY PERSON'S TRANSMISSION OF LOAN DOCUMENTS,
COMMUNICATIONS, OR OTHER INFORMATION THROUGH THE INTERNET, OR POSTING OR FAILURE
TO POST ANY LOAN DOCUMENTS, COMMUNICATIONS, OR OTHER INFORMATION ON ANY
PLATFORM, EXCEPT TO THE EXTENT DETERMINED IN A FINAL, NONAPPEALABLE JUDGMENT BY
A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON'S OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
(g) Subject to the last sentence of clause (f) preceding, the Agent
agrees that the receipt of the Communications by it at its e-mail addresses
specified to the Obligated Parties from time to time shall constitute effective
delivery of the Communications to the Agent for purposes of this Agreement. Each
Lender agrees that notice to it (as provided in the following sentence)
specifying that the Communications and the Other Information have been posted to
a Platform shall constitute effective delivery of the Communications and the
Other Information to such Lender for purposes of this Agreement. Each Lender
agrees (i) to notify the Agent in writing (including by electronic
communication) from time to time of such Lender's e-mail addresses to which the
foregoing notice may be sent by electronic transmission and (ii) that the
foregoing notice may be sent to such e-mail address.
SECTION 9.03 Waivers; Amendments.
(a) Except as specified in clause (b) and clause (c) following, no
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent with respect to any departure by any Obligated Party
therefrom, shall be effective unless such amendment, modification, or consent is
in writing, signed by the Majority Lenders (or by the Agent at the written
request of the Majority Lenders) and the Obligated Parties, and acknowledged by
the Agent, and then any such amendment, waiver, or consent shall be effective
only in the specific instance and for the specific purpose for which given.
(b) Unless it is in writing and signed by all of the Lenders (or by the
Agent at the written request of the Lenders) and the Borrowers and acknowledged
by the Agent, no amendment, waiver, or consent shall do any of the following:
(i) increase (other than pursuant to an assignment hereunder) or
extend the Commitment of any Lender;
(ii) amend the first two sentences of Section 2.01(b)(i);
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(iii) increase the Maximum Revolver Amount or the Letter of Credit
Subfacility;
(iv) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees (other than
fees payable to the Agent solely for the Agent's benefit), or other amounts due
to the Lenders (or any of them) hereunder or under any other Loan Document;
(v) reduce the principal of, or the rate of interest specified
herein on any Loan, or any fees or other amounts payable hereunder or under any
other Loan Document;
(vi) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans that is required for the Lenders, or any of
them, to take any action hereunder;
(vii) change the definition of Borrowing Base, Eligible Accounts,
Eligible Inventory, Inventory Advance Amount, Pro Rata Share, Vessel Advance
Amount, Vessel Appraisal, Eligible Vessels, Majority Lenders, or Required
Lenders;
(viii) amend Section 8.10, this Section 9.03 or any provision of
this Agreement providing for consent or other action by all of the Lenders; or
(ix) other than as permitted by Section 8.10, release or
subordinate any Guaranties of the Obligations or release or subordinate
Collateral;
provided that (A) no amendment, waiver, or consent shall, unless in writing and
signed by the Agent, affect the rights or duties of the Agent under this
Agreement or any other Loan Document, (B) no amendment, waiver, or consent
shall, unless in writing and signed by the Bank, acting in its capacity as the
Letter of Credit Issuer affect the rights or duties of the Letter of Credit
Issuer under this Agreement or any other Loan Document related to any Letter of
Credit issued or to be issued by it, (C) Schedule 1.1A may be amended from time
to time by the Agent alone to reflect assignments of Commitments in accordance
with this Agreement, (D) any Loan Document relating to Bank Products may be
amended by the applicable Obligated Party and the Bank without the approval or
consent of any other Lender, and (E) no Defaulting Lender shall have any right
to approve or disapprove any amendment, waiver, or consent hereunder.
(c) No waiver, amendment, or consent shall, unless in writing and signed
by the Required Lenders and the Obligated Parties and acknowledged by the Agent,
amend any provision of Section 2.01(b)(x), other than an amendment to the
percentage of Lenders required to revoke the Agent's authorization to make Agent
Advances which revocation shall require only the signature of the Required
Lenders.
(d) If any fees are paid to the Lenders as consideration for amendments,
waivers, or consents with respect to this Agreement, at the Agent's election,
such fees may be paid only to those Lenders that agree to such amendments,
waivers, or consents within the time specified for submission thereof.
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(e) If, in connection with any proposed amendment, waiver, or consent:
(i) requiring the consent of all of the Lenders, the consent of
the Required Lenders is obtained but the consent of the other Lenders is not
obtained (any such Lender whose consent is not obtained as described in this
clause (i) or clause (ii) following being referred to as a "Non-Consenting
Lender"), or
(ii) requiring the consent of the Required Lenders, the consent of
the Majority Lenders is obtained but the consent of the other Lenders is not
obtained,
(iii) then, if the Bank (in its individual capacity as a Lender) is
not a Non-Consenting Lender, at the Borrowers' request the Bank (in its
individual capacity as a Lender) or an Eligible Assignee shall, subject to the
requirements of Section 9.05, have the right (but not the obligation) to
purchase from each Non-Consenting Lender, and each Non-Consenting Lender agrees
that it shall sell, such Non-Consenting Lender's Loans and Commitments for an
amount equal to the aggregate outstanding principal balances thereof plus all
accrued interest and fees with respect thereto through the date of sale pursuant
to one or more Assignment and Acceptances, without premium or discount.
SECTION 9.04 Expenses; Indemnity; Damage Waiver.
(a) Fees and Expenses. The Obligated Parties agree to pay to the Agent
and the Lenders, for their respective accounts, on demand, all reasonable
out-of-pocket (except as expressly provided below) costs and expenses that the
Agent and the Lenders pay or incur in connection with the negotiation,
preparation, consummation, administration, enforcement, and termination of this
Agreement or any of the other Loan Documents, including: (i) Attorney Costs;
(ii) costs and expenses (including Attorney Costs) for any amendment,
supplement, waiver, consent, or subsequent closing in connection with the Loan
Documents and the transactions contemplated thereby; (iii) costs and expenses of
lien searches; (iv) taxes, fees, and other charges for filing financing
statements and continuations, and other actions to perfect, protect, and
continue the Agent's Liens (including costs and expenses paid or incurred by the
Agent in connection with the consummation of this Agreement); (v) sums paid or
incurred to pay any amount or take any action required of any Obligated Party
under the Loan Documents that such Obligated Party fails to pay or take; (vi)
costs of (A) appraisals, including any Vessel Appraisal (whether conducted by an
internal or external appraiser), and (B) inspections, and verifications of the
Collateral and other due diligence, including travel, lodging, and meals for not
more than two (2) field examinations and inspection per year (unless an Event of
Default has occurred and is continuing) of the Collateral and the Obligated
Parties' operations by the Agent, plus the Agent's then customary charge for
field examinations and audits and the preparation of reports thereof (such
charge is currently $850 per day (or portion thereof) for each Person retained
or employed by the Agent with respect to each field examination or audit)
performed or prepared at any time, provided that so long as no Event of Default
exists and is continuing, Borrowers shall only be required to reimburse Agent up
to $50,000 per year for all field examinations or audits performed by Agent (the
foregoing cap shall not apply to any appraisals and shall not apply from and
after the occurrence of an Event of Default), and (vii) costs and expenses of
forwarding loan proceeds, collecting checks and other items of payment, and
establishing and maintaining Clearing Accounts and lockboxes, and costs and
expenses of
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preserving and protecting the Collateral. In addition, the Obligated Parties
agree to pay (A) to the Agent, for its benefit, on demand, all reasonable
out-of-pocket (except as expressly provided below) costs and expenses incurred
by the Agent (including Attorney Costs), and (B) to the Lenders (other than the
Bank), for their benefit, on demand, all reasonable and actual fees, expenses,
and disbursements incurred by the Lenders for one law firm retained by the
Lenders, in each case, paid or incurred to obtain payment of the Obligations,
enforce the Agent's Liens, sell or otherwise realize upon the Collateral, and
otherwise enforce the provisions of the Loan Documents, or to defend any claims
made or threatened against the Agent or any Lender arising out of the
transactions contemplated hereby (including preparations for and consultations
concerning any such matters). The foregoing shall not be construed to limit any
other provisions of the Loan Documents regarding costs and expenses to be paid
by the Obligated Parties. All of the foregoing costs and expenses shall be
charged to the Loan Account as Revolving Loans as described in Section
2.01(b)(i). The agreements in this Section 9.04 shall survive payment of all
other Obligations.
(b) (i) EACH OBLIGATED PARTY AGREES TO DEFEND, INDEMNIFY, AND HOLD THE
AGENT-RELATED PERSONS, EACH CREDIT PROVIDER, AND EACH OF THEIR RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, COUNSEL, REPRESENTATIVES, AGENTS, AND
ATTORNEYS-IN-FACT (EACH, AN "INDEMNIFIED PERSON") HARMLESS FROM AND AGAINST ANY
AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, CHARGES, EXPENSES, AND DISBURSEMENTS (INCLUDING
ATTORNEY COSTS AND REASONABLE LEGAL COSTS AND EXPENSES OF THE OTHER CREDIT
PROVIDERS) OF ANY KIND OR NATURE WHATSOEVER THAT MAY AT ANY TIME (INCLUDING AT
ANY TIME FOLLOWING REPAYMENT OF THE LOANS AND THE TERMINATION, RESIGNATION, OR
REPLACEMENT OF THE AGENT OR REPLACEMENT OF ANY OTHER CREDIT PROVIDER) BE IMPOSED
ON, INCURRED BY, OR ASSERTED AGAINST ANY SUCH PERSON IN ANY WAY RELATING TO OR
ARISING OUT OF THIS AGREEMENT, ANY OTHER LOAN DOCUMENT, OR ANY OTHER AGREEMENT,
INSTRUMENT, OR DOCUMENT CONTEMPLATED BY OR REFERRED TO HEREIN OR THEREIN, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR ANY ACTION TAKEN OR OMITTED BY
ANY INDEMNIFIED PERSON UNDER OR IN CONNECTION WITH ANY OF THE FOREGOING,
INCLUDING WITH RESPECT TO ANY INVESTIGATION, LITIGATION, OR PROCEEDING
(INCLUDING ANY BANKRUPTCY, INSOLVENCY, OR OTHER PROCEEDING, AND ANY APPELLATE
PROCEEDING) RELATED TO OR ARISING OUT OF THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT, THE LOANS, OR THE USE OF THE PROCEEDS OF THE LOANS, WHETHER OR NOT ANY
INDEMNIFIED PERSON IS A PARTY THERETO (ALL THE FOREGOING, COLLECTIVELY, THE
"INDEMNIFIED LIABILITIES"); PROVIDED THAT NO OBLIGATED PARTY SHALL HAVE ANY
OBLIGATION HEREUNDER TO ANY INDEMNIFIED PERSON WITH RESPECT TO INDEMNIFIED
LIABILITIES TO THE EXTENT DETERMINED IN A FINAL, NONAPPEALABLE JUDGMENT BY A
COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED PERSON'S
OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THE AGREEMENTS IN THIS SECTION
9.04(b)(i) SHALL SURVIVE PAYMENT OF ALL OTHER OBLIGATIONS.
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(ii) EACH OBLIGATED PARTY AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS
THE AGENT AND THE LENDERS FROM ANY LOSS OR LIABILITY DIRECTLY OR INDIRECTLY
ARISING OUT OF THE USE, GENERATION, MANUFACTURE, PRODUCTION, STORAGE, RELEASE,
THREATENED RELEASE, DISCHARGE, DISPOSAL, OR PRESENCE OF A HAZARDOUS SUBSTANCE
RELATING TO ANY OBLIGATED PARTY'S OPERATIONS, BUSINESS, OR PROPERTY. THIS
INDEMNITY WILL APPLY WHETHER THE HAZARDOUS SUBSTANCE IS ON, UNDER, OR ABOUT ANY
OBLIGATED PARTY'S PROPERTY OR OPERATIONS OR PROPERTY LEASED TO ANY OBLIGATED
PARTY. THE INDEMNITY INCLUDES BUT IS NOT LIMITED TO ATTORNEY COSTS AND
REASONABLE LEGAL COSTS AND EXPENSES OF THE OTHER CREDIT PROVIDERS (INCLUDING
ENVIRONMENTAL ASSESSMENTS). THE INDEMNITY EXTENDS TO THE AGENT AND THE OTHER
CREDIT PROVIDERS, THEIR AFFILIATES, SUBSIDIARIES, AND ALL OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, ATTORNEYS, AND ASSIGNS. AS USED IN THIS
SECTION 9.04(b)(ii), "HAZARDOUS SUBSTANCES" MEANS ANY SUBSTANCE, MATERIAL, OR
WASTE THAT IS OR BECOMES DESIGNATED OR REGULATED AS "TOXIC," "HAZARDOUS,"
"POLLUTANT," OR "CONTAMINANT" OR A SIMILAR DESIGNATION OR REGULATION UNDER ANY
FEDERAL, STATE, OR LOCAL LAW (WHETHER UNDER COMMON LAW, STATUTE, REGULATION, OR
OTHERWISE) OR JUDICIAL OR ADMINISTRATIVE INTERPRETATION OF SUCH, INCLUDING
PETROLEUM OR NATURAL GAS. THIS INDEMNITY WILL SURVIVE REPAYMENT OF ALL OTHER
OBLIGATIONS.
(c) To the extent that the Obligated Parties fail to pay any amount
required to be paid by them to the Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Agent, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Agent in its capacity as such.
(d) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.05 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby except that (i) the Obligated Parties may not assign or
otherwise transfer any of their rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or transfer
by the Obligated Parties without such consent shall be null and void) and (ii)
no Lender may assign or otherwise transfer its rights or obligations hereunder
except in accordance with this Section. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agent and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
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(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of the
Loans at the time owing to it) with the prior written consent (such consent not
to be unreasonably withheld) of:
(A) the Borrowers, provided that no consent of the Borrowers
shall be required for an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, or if an Event of Default has occurred
and is continuing, any other assignee; and
(B) the Agent, provided that no consent of the Agent shall
be required for an assignment to an assignee that is a Lender
immediately prior to giving effect to such assignment, an Affiliate
of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's portion of the Loans, the amount of
the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Agent) shall not be
less than $10,000,000 unless each of the Borrowers and the Agent
otherwise consent, provided that no such consent of the Borrowers
shall be required if an Event of Default has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver
to the Agent an Assignment and Acceptance (which Assignment and
Acceptance shall include an acknowledgment by the Assignee party
thereto that it has received a copy of and is subject to the terms
of the NRG Intercreditor Agreement), together with a processing and
recordation fee of $3,500; provided the same shall not apply to any
assignment between a Lender and one or more Affiliates of such
Lender or an Approved Fund; and
(D) the assignee, if it shall not be a Lender, shall deliver
to the Agent an Administrative Questionnaire.
For the purposes of this Section 9.05(b), the term "Approved Fund" has the
following meaning:
"Approved Fund" means any person (other than a natural person)
that is engaged in making, purchasing, holding or investing in bank
loans and similar extensions of credit in the ordinary course of its
business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a
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Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.08, 2.10 and 9.04). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this Section 9.05 shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (c) of this Section.
(iv) The Agent, acting for this purpose as an agent of the
Borrowers, shall maintain at one of its offices a copy of each Assignment and
Acceptance delivered to it and a register for the recordation of the names and
addresses of the Lenders, the principal amount of the Loans owing to each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrowers, the Agent and the Lenders
may treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Agent shall accept such Assignment and Acceptance and
record the information contained therein in the Register; provided that if
either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.11(d) or 9.04(c), the
Agent shall have no obligation to accept such Assignment and Assumption and
record the information therein in the Register unless and until such payment
shall have been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrowers or the
Agent, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations under
this Agreement (including all or a portion of the Loans owing to it); provided
that (A) such Lender's obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (C) the Borrowers, the 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. Any
agreement or instrument pursuant to which a Lender
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sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.03(b) that affects such Participant. Subject to
paragraph (c)(ii) of this Section, the Obligated Parties agree that each
Participant shall be entitled to the benefits of Sections 2.08, 2.10, and
2.11(h) to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 9.09
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.11(e) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.08 or 2.10 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrowers' prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.10 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section
2.10(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including, without limitation, any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.06 Survival. All covenants, agreements, representations and warranties
made by the Obligated Parties herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of the Loans
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Agent or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid. The
provisions of Sections 2.08, 2.10, 2.11(h) and 9.04 and Article VIII shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans or the
termination of this Agreement or any provision hereof.
SECTION 9.07 Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Agent constitute
the entire contract among the parties relating to the subject matter hereof and
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supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the Agent
and when the Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.08 Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.09 Right of Setoff. Each Lender and each of its Affiliates is hereby
authorized at any time and from time to time following the occurrence and during
the continuance of an Event of Default, to the fullest extent permitted by law,
to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Obligated
Parties against any of and all the obligations of the Obligated Parties now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 9.10 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by
the law of the State of New York.
(b) The Obligated Parties hereby irrevocably and unconditionally submit,
for themselves and their property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Agent, or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against the Obligated Parties or their properties in the courts of any
jurisdiction.
(c) The Obligated Parties hereby irrevocably and unconditionally waive,
to the fullest extent they may legally and effectively do so, any objection
which it may now or hereafter have
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to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.02. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.11 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.12 Headings. Article and Section headings and the Table of Contents
used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.13 Confidentiality. Each of the Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Obligated
Parties and their obligations, (g) with the consent of the Borrowers or (h) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the Agent or any
Lender on a nonconfidential basis from a source other than the Obligated
Parties. For the purposes of this Section, "Information" means all information
received from the Obligated Parties relating to the Obligated Parties or their
business, other than any such information that is available to the Agent or any
Lender on a nonconfidential basis prior to disclosure by the Obligated Parties;
provided that, in the case of information received from the Obligated Parties
after the date hereof, such information is clearly
104
identified at the time of delivery as confidential. Any person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such person has
exercised the same degree of care to maintain the confidentiality of such
Information as such person would accord to its own confidential information.
SECTION 9.14 Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to Loans, together with
all fees, charges and other amounts which are treated as interest on such Loans
under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 9.15 USA PATRIOT ACT. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act") hereby notifies the Obligated Parties that pursuant to the
requirements of the Act, it is required to obtain, verify and record information
that identifies the Obligated Parties, which information includes the name and
address of the Obligated Parties and other information that will allow such
Lender to identify the Obligated Parties in accordance with the Act.
SECTION 9.16 Limitation of Liability. NO CLAIM MAY BE MADE BY ANY OBLIGATED
PARTY, THE AGENT, ANY OTHER CREDIT PROVIDER, OR ANY OTHER PERSON AGAINST ANY
OBLIGATED PARTY, THE AGENT, ANY OTHER CREDIT PROVIDER, OR ANY AFFILIATE,
DIRECTOR, OFFICER, EMPLOYEE, COUNSEL, REPRESENTATIVE, AGENT, OR ATTORNEY-IN-FACT
OF ANY OF THEM FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES IN
RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHER THEORY OF LIABILITY
ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION
THEREWITH, AND EACH OBLIGATED PARTY, THE AGENT, AND EACH OTHER CREDIT PROVIDER
HEREBY WAIVES, RELEASES, AND AGREES NOT TO XXX UPON ANY CLAIM FOR SUCH DAMAGES,
WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS
FAVOR.
SECTION 9.17 Final Agreement. This Agreement and the other Loan Documents are
intended by the Obligated Parties, the Agent, and the Lenders to be the final,
complete, and exclusive expression of the agreement between them. This Agreement
and the other Loan Documents supersede any and all prior oral or written
agreements relating to the subject matter hereof and thereof. No modification,
rescission, waiver, release, or amendment of any provision
105
of this Agreement or any other Loan Document shall be made, except by a written
agreement signed by a Responsible Officer of each of (a) the Obligated Parties,
(b) the Agent, and (c) the Majority Lenders, the Required Lenders, or all of the
Lenders, to the extent required under the terms of this Agreement.
SECTION 9.18 Joint and Several Liability. All Loans, upon funding, shall be
deemed to be jointly funded to and received by the Borrowers. Each Borrower
jointly and severally agrees to pay, and shall be jointly and severally liable
under this Agreement for, all Obligations, regardless of the manner or amount in
which proceeds of Loans are used, allocated, shared, or disbursed by or among
the Borrowers themselves, or the manner in which the Agent and/or any Lender
accounts for such Loans or other extensions of credit on its books and records.
Each Borrower shall be liable for all amounts due to the Agent and/or any Lender
under this Agreement, regardless of which Borrower actually receives Loans or
other extensions of credit hereunder or the amount of such Loans and extensions
of credit received or the manner in which the Agent and/or such Lender accounts
for such Loans or other extensions of credit on its books and records. Each
Borrower's Obligations with respect to Loans and other extensions of credit made
to it, and such Borrower's Obligations arising as a result of the joint and
several liability of such Borrower hereunder, with respect to Loans made to the
other Borrowers hereunder, shall be separate and distinct obligations, but all
such Obligations shall be primary obligations of such Borrower. The Borrowers
acknowledge and expressly agree with the Agent and each Lender that the joint
and several liability of each Borrower is required solely as a condition to, and
is given solely as inducement for and in consideration of, credit or
accommodations extended or to be extended under the Loan Documents to any or all
of the other Borrowers and is not required or given as a condition of extensions
of credit to such Borrower. Each Borrower's obligations under this Agreement and
as an obligor under a Guaranty Agreement shall be separate and distinct
obligations. Each Borrower's obligations under this Agreement shall, to the
fullest extent permitted by law, be unconditional irrespective of (a) the
validity or enforceability, avoidance, or subordination of the Obligations of
any other Borrower or of any promissory note or other document evidencing all or
any part of the Obligations of any other Borrower, (b) the absence of any
attempt to collect the Obligations from any other Borrower, any Guarantor, or
any other security therefor, or the absence of any other action to enforce the
same, (c) the waiver, consent, extension, forbearance, or granting of any
indulgence by the Agent and/or any Lender with respect to any provision of any
instrument evidencing the Obligations of any other Borrower or Guarantor, or any
part thereof, or any other agreement now or hereafter executed by any other
Borrower or Guarantor and delivered to the Agent and/or any Lender, (d) the
failure by the Agent and/or any Lender to take any steps to perfect and maintain
its security interest in, or to preserve its rights to, any security or
collateral for the Obligations of any other Borrower or Guarantor, (e) the
Agent's and/or any Lender's election, in any proceeding instituted under the
Bankruptcy Code, or the application of Section 1111(b)(2) of the Bankruptcy
Code, (f) any borrowing or grant of a security interest by any other Borrower,
as debtor-in-possession under Section 364 of the Bankruptcy Code, (g) the
disallowance of all or any portion of the Agent's and/or any Lender's claim(s)
for the repayment of the Obligations of any other Borrower under Section 502 of
the Bankruptcy Code, or (h) any other circumstances that might constitute a
legal or equitable discharge or defense of a Guarantor or of any other Borrower.
With respect to any Borrower's Obligations arising as a result of the joint and
several liability of the Borrowers hereunder with respect to Loans or other
extensions of credit made to any of the other Borrowers hereunder, such Borrower
waives, until the Obligations shall have been paid in full and this
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Agreement shall have been terminated, any right to enforce any right of
subrogation or any remedy that the Agent and/or any Lender now has or may
hereafter have against any other Borrower, any endorser or any Guarantor of all
or any part of the Obligations, and any benefit of, and any right to participate
in, any security or collateral given to the Agent and/or any Lender to secure
payment of the Obligations or any other liability of any Borrower to the Agent
and/or any Lender. Upon any Event of Default, the Agent may proceed directly and
at once, without notice, against any Borrower to collect and recover the full
amount, or any portion of the Obligations, without first proceeding against any
other Borrower or any other Person, or against any security or collateral for
the Obligations. Each Borrower consents and agrees that the Agent shall be under
no obligation to marshal any assets in favor of any Borrower or against or in
payment of any or all of the Obligations.
SECTION 9.19 Contribution and Indemnification among the Borrowers. Each Borrower
is obligated to repay the Obligations as a joint and several obligor under this
Agreement. To the extent that any Borrower shall, as a joint and several obligor
under this Agreement, repay any of the Obligations constituting Loans made to
another Borrower hereunder or other Obligations incurred directly and primarily
by any other Borrower and to the extent any other Borrower makes any transfer
(including any payment, grant, guaranty, or granting of a Lien) pursuant to this
Agreement (any such payment or transfer being referred to herein as an
"Accommodation Payment"), then the Borrower making such Accommodation Payment
shall be entitled to contribution and indemnification from, and be reimbursed
by, each of the other Borrowers in an amount, for each of such other Borrowers,
equal to a fraction of such Accommodation Payment, the numerator of which
fraction is such other Borrower's Allocable Amount and the denominator of which
is the sum of the Allocable Amounts of all of the Borrowers. As of any date of
determination, the "Allocable Amount" of each Borrower shall be equal to the
maximum amount of liability for Accommodation Payments that could be asserted
against such Borrower hereunder without (a) rendering such Borrower "insolvent"
within the meaning of Section 101 (32) of the Bankruptcy Code, Section 2 of the
Uniform Fraudulent Transfer Act ("UFTA") or Section 2 of the Uniform Fraudulent
Conveyance Act ("UFCA"), (b) leaving such Borrower with unreasonably small
capital or assets, within the meaning of Section 548 of the Bankruptcy Code,
Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower
unable to pay its debts as they become due within the meaning of Section 548 of
the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All
rights and claims of contribution, indemnification, and reimbursement under this
Section shall be subordinate in right of payment to the prior payment in full of
the Obligations. The provisions of this Section shall, to the extent expressly
inconsistent with any provision in any Loan Document, supersede such
inconsistent provision.
SECTION 9.20 Agency of ACL for the Obligated Parties. Each of the Obligated
Parties irrevocably appoints ACL as its agent for all purposes relevant to this
Agreement, including the giving and receipt of notices and execution and
delivery of all documents, instruments, and certificates contemplated herein
(including execution and delivery to the Agent of Borrowing Base Certificates)
and all modifications hereto. Any acknowledgment, consent, direction,
certification, or other action that might otherwise be valid or effective only
if given or taken by the Obligated Parties or acting singly, shall be valid and
effective if given or taken by ACL and the Agent and the Lenders shall have no
duty or obligation to make further inquiry with respect to the authority of ACL
under this Section 9.20, provided that nothing in this Section 9.20 shall
107
limit the effectiveness of, or the right of the Agent and the Lenders to rely
upon, any notice, document, instrument, certificate, acknowledgment, consent,
direction, certification, or other action delivered by ACL pursuant to this
Agreement.
SECTION 9.21 Additional Borrowers and Guarantors. Addition of any Person as a
Borrower or a Guarantor to this Agreement is subject to approval of the Agent
and the Majority Lenders, and may be conditioned upon such requirements as they
may determine in their discretion, including (a) the furnishing of such
financial and other information as the Agent or any such Lender, as applicable,
may request, (b) approval by all appropriate approval authorities of the Agent
and each such Lender, as applicable, and (c) execution and delivery by the
Obligated Parties, such Person, the Agent, and the Majority Lenders of such
agreements and other documentation (including an amendment to this Agreement or
any other Loan Document), and the furnishing by such Person or any of the
Obligated Parties of such certificates, opinions, and other documentation, as
the Agent and any such Lender may request. Neither the Agent nor any Lender
shall have any obligation to approve any such Person for addition as a party to
this Agreement.
SECTION 9.22 Express Waivers By Obligated Parties In Respect of Cross Guaranties
and Cross Collateralization. Each Obligated Party agrees as follows.
(a) Each Obligated Party hereby waives: (i) notice of acceptance of this
Agreement; (ii) notice of the making of any Loans, the issuance of any Letter of
Credit, or any other financial accommodations made or extended under the Loan
Documents or the creation or existence of any Obligations; (iii) notice of the
amount of the Obligations, subject, however, to such Obligated Party's right to
make inquiry of the Agent to ascertain the amount of the Obligations at any
reasonable time; (iv) notice of any adverse change in the financial condition of
any other Obligated Party or of any other fact that might increase such
Obligated Party's risk with respect to such other Obligated Party under the Loan
Documents; (v) notice of presentment for payment, demand, protest, and notice
thereof as to any promissory notes or other instruments among the Loan
Documents; and (vi) all other notices (except if such notice is specifically
required to be given to such Obligated Party hereunder or under any of the other
Loan Documents to which such Obligated Party is a party) and demands to which
such Obligated Party might otherwise be entitled.
(b) Each Obligated Party hereby waives the right by statute or otherwise
to require any Credit Provider to institute suit against any other Obligated
Party or to exhaust any rights and remedies that any Credit Provider has or may
have against any other Obligated Party. Each Obligated Party further waives any
defense arising by reason of any disability or other defense of any other
Obligated Party (other than the defense that the Obligations shall have been
fully and finally performed and indefeasibly paid) or by reason of the cessation
from any cause whatsoever of the liability of any such Obligated Party in
respect thereof.
(c) Each Obligated Party hereby waives and agrees not to assert against
any Credit Provider: (i) any defense (legal or equitable), setoff, counterclaim,
or claim that such Obligated Party may now or at any time hereafter have against
any other Obligated Party or any other party liable under the Loan Documents;
(ii) any defense, setoff, counterclaim, or claim of any kind or nature available
to any other Obligated Party against any Credit Provider, arising directly or
108
indirectly from the present or future lack of perfection, sufficiency, validity,
or enforceability of the Obligations or any security therefor; (iii) any right
or defense arising by reason of any claim or defense based upon an election of
remedies by any Credit Provider under any Requirement of Law; (iv) the benefit
of any statute of limitations affecting any other Obligated Party's liability
hereunder.
(d) Each Obligated Party consents and agrees that, without notice to or
by such Obligated Party and without affecting or impairing the obligations of
such Obligated Party hereunder, the Agent may (subject to any requirement for
consent of any of the Lenders to the extent required by this Agreement), by
action or inaction: (i) compromise, settle, extend the duration or the time for
the payment of, or discharge the performance of, or may refuse to or otherwise
not enforce the Loan Documents; (ii) release all or any one or more parties to
any one or more of the Loan Documents or grant other indulgences to any other
Obligated Party in respect thereof; (iii) amend or modify in any manner and at
any time (or from time to time) any of the Loan Documents; or (iv) release or
substitute any Person liable for payment of the Obligations, or enforce,
exchange, release, or waive any security for the Obligations or any Guaranty of
the Obligations.
(e) Each Obligated Party represents and warrants that such Obligated
Party is currently informed of the financial condition of the other Obligated
Parties and all other circumstances that a diligent inquiry would reveal and
that bear upon the risk of nonpayment of the Obligations. Each Obligated Party
further represents and warrants that such Obligated Party has read and
understands the terms and conditions of the Loan Documents. Each Obligated Party
agrees that no Credit Provider has any responsibility to inform any Obligated
Party of the financial condition of the other Obligated Party or of any other
circumstances that bear upon the risk of nonpayment or nonperformance of the
Obligations.
ARTICLE X
TERM AND TERMINATION
SECTION 10.01 Term. The term of this Agreement shall end on the Stated
Termination Date unless sooner terminated in accordance with the terms hereof.
The Agent may, and upon direction from the Required Lenders shall, terminate
this Agreement, without notice to the Borrowers, during the existence of an
Event of Default. Upon the effective date of termination of this Agreement for
any reason whatsoever, all Obligations (including all unpaid principal, accrued
and unpaid interest, and any early termination or prepayment fees, but excluding
indemnification obligations to the extent no claim with respect thereto has been
asserted and remains unsatisfied) shall become immediately due and payable, the
Lenders shall have no obligation to make any Loans, the Agent shall have no
obligation to cause the Letter of Credit Issuer to issue any Letter of Credit,
and the applicable Borrower shall immediately arrange for the cancellation and
return of all Letters of Credit then outstanding or for the delivery to the
Agent of a Supporting Cash Deposit or a Supporting Letter of Credit in
accordance with Section 2.03(g). Notwithstanding the termination of this
Agreement, until all Obligations are indefeasibly paid and performed in full,
the Obligated Parties shall remain bound by the terms of this Agreement and/or
the other Loan Documents to which they are a party, respectively, and shall not
be relieved of any of their Obligations hereunder or thereunder, and the Agent
and the
109
Lenders shall retain all their rights and remedies hereunder and thereunder
(including the Agent's Liens in and all rights and remedies with respect to all
then existing and after-acquired or after-arising Collateral).
SECTION 10.02 Effect of Termination. Notwithstanding the payment in full of the
Obligations, the Agent shall not be required to terminate the Agent's Liens in
any of the Collateral unless, with respect to any loss or damage the Agent may
incur as a result of the dishonor or return of any payment items applied to the
Obligations, the Agent shall have received either (a) a written agreement,
executed by the Borrowers and any other Person deemed financially responsible by
the Agent and whose loans or other advances to the Borrowers are used in whole
or in part to satisfy the Obligations, indemnifying the Agent and the other
Credit Providers from any such loss or damage or (b) such monetary reserves and
Liens on the Collateral for such period of time as the Agent, in its reasonable
credit judgment, may deem necessary to protect the Agent and the Lenders from
any such loss or damage. The provisions of Sections 2.03(f), 2.04, 2.08, 2,09,
2.10, 2.11(e), 8.07, 9.04(a), 9.04(b) 9.16, 9.19 and this Section 10.02, and all
indemnification obligations of the Borrowers shall in all events survive any
termination of the Commitments or this Agreement.
ARTICLE XI
ACKNOWLEDGMENT AD RESTATEMENT
SECTION 11.01 Existing Obligations. Each Obligated Party hereby acknowledges,
confirms and agrees that the Obligated Parties are indebted to Agent and Lenders
under the Existing Loan Agreement as of the close of business on February 10,
2005 in the aggregate principal amount of $0, which indebtedness, together with
all interest accrued and accruing thereon (to the extent applicable), and all
fees, costs, expenses and other charges relating thereto, all of which are
unconditionally owing by Obligated Parties to Agent and Lenders, without offset,
defense or counterclaim of any kind, nature or description whatsoever.
SECTION 11.02 Acknowledgment of Security Interest. Each Obligated Party hereby
acknowledges, confirms and agrees that Agent and Lenders have and shall continue
to have a security interest in, and lien upon, the Collateral of any Obligated
Party heretofore granted to Agent pursuant to the Existing Loan Agreement, as
well as any Collateral granted hereunder or under the other Loan Documents or
otherwise granted to or held by Agent, for the benefit of Lenders, and the liens
and security interests of Agent in the Collateral shall be deemed to be
continuously granted and perfected from the earliest date of the granting and
perfection of such liens and security interests.
SECTION 11.03 Existing Agreements. Each Obligated Party hereby acknowledges,
confirms and agrees that immediately prior to the effectiveness of this
Agreement: (a) the Existing Loan Agreement has been duly executed and delivered
by Obligated Parties and is in full force and effect as of the date hereof; (b)
the agreements and obligations of Obligated Parties contained in the Existing
Loan Agreement constitute the legal, valid and binding obligations of Obligated
Parties, enforceable against them in accordance with its terms and (c) Obligated
Parties have no valid defense to the enforcement of such obligations except to
the extent that enforcement of certain rights and remedies may be limited by the
provisions of the Bankruptcy
110
Code, or other laws affecting the rights of creditors generally; and Agent and
Lenders are entitled to all of the rights, remedies and benefits provided for in
or arising pursuant to the Existing Loan Agreement.
SECTION 11.04 Restatement
(a) Except as otherwise stated in Section 11.02 hereof and this Section
11.04, as of the date hereof, the terms, conditions, agreements, covenants,
representations and warranties set forth in the Existing Loan Agreement are
simultaneously amended and restated in their entirety, and as so amended and
restated, replaced and superseded by the terms, conditions, agreements,
covenants, representations and warranties set forth in this Agreement and the
other Loan Documents executed and/or delivered on or after the date hereof,
except that nothing herein or in the other Loan Documents shall, in any manner,
be construed to constitute payment of, or impair, limit, cancel or extinguish,
or constitute a novation in respect of any of the obligations, liabilities and
indebtedness of Borrowers or any other Obligated Party evidenced by or arising
under the Existing Loan Agreement or impair or adversely affect the continuation
of the security interests, liens, and other interests in the Collateral
heretofore granted, pledged and/or assigned by Borrowers or any other Obligated
Party to Agent and Lenders.
(b) All Obligations of Borrowers or any other Obligated Party to Agent
and Lenders that are outstanding and unpaid as of the date hereof pursuant to
the Existing Loan Agreement or the other Loan Documents shall be deemed
Obligations of Borrowers and each other Obligated Party pursuant to the terms
hereof, and shall constitute and be deemed Loans hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date first above written.
BORROWERS:
AMERICAN COMMERCIAL BARGE LINE LLC
AMERICAN COMMERCIAL LINES LLC
AMERICAN COMMERCIAL TERMINALS LLC
HOUSTON FLEET LLC
LOUISIANA DOCK COMPANY LLC
JEFFBOAT LLC
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Printed: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
GUARANTORS:
ACBL LIQUID SALES LLC
ACL FINANCE CORP.
AMERICAN BARGE LINE COMPANY
AMERICAN COMMERCIAL LINES INC.
AMERICAN COMMERCIAL LINES INTERNATIONAL LLC
AMERICAN COMMERCIAL LOGISTICS LLC
AMERICAN COMMERCIAL TERMINALS - MEMPHIS LLC
COMMERCIAL BARGE LINE COMPANY
LEMONT HARBOR & FLEETING SERVICES LLC
ORINOCO TASA LLC
ORINOCO TASV LLC
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Printed: Xxxx X. Xxxxxx
Title: President and Chief Executive Officer
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
ADMINISTRATIVE AGENT AND COLLATERAL AGENT:
BANK OF AMERICA, N. A.
By: /s/ [illegible]
-------------------------------------------
Name: [illegible]
Title: Senior Vice President
CO-DOCUMENTATION AGENTS
XXXXXXX XXXXX CAPITAL,
a division of Xxxxxxx Xxxxx Business Financial
Services Inc.
By: /s/ Xxxxxxx X. Jehm
--------------------------------------------
Name: Xxxxxxx X. Jehm
Title: Director
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
SYNDICATION AGENT:
UBS SECURITIES LLC
By: /s/ Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Director and Counsel
[SIGNATURES OF LENDERS FOLLOW]
BANK OF AMERICA, N.A.
By: /s/ [illegible]
--------------------------------------------
Name: [illegible]
Title: Senior Vice President
XXXXXXX XXXXX CAPITAL,
a division of Xxxxxxx Xxxxx Business Financial
Services Inc.
By: /s/ Xxxxxxx X. Jehm
--------------------------------------------
Name: Xxxxxxx X. Jehm
Title: Director
THE CIT GROUP/BUSINESS CREDIT, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
XXXXX FARGO FOOTHILL, LLC
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
UBS LOAN FINANCE LLC
By: /s/ Xxxxxxx X. Saint
--------------------------------------------
Name: Xxxxxxx X. Saint
Title: Director
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
NATIONAL CITY BUSINESS CREDIT, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------------------
Name: Xxxxx Xxxxx
Title: Senior Associate
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: First Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Duly Authorized Signatory
GMAC COMMERCIAL FINANCE LLC
By: /s/ Xxxx Xxxx
--------------------------------------------
Name: Xxxx Xxxx
Title: Managing Director
LASALLE BUSINESS CREDIT LLC
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
