Exhibit 10.1
AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
DATED as of February 12, 1998
among
HVIDE MARINE INCORPORATED
and
The Guarantors Identified Herein
and
The Lending Institutions Identified Herein
and
CITIBANK, N.A., as Administrative Agent
and
BANKBOSTON, N.A., as Documentation Agent
and
BANCBOSTON SECURITIES INC., as Syndication Agent
with
CITICORP SECURITIES, INC.
and
BANCBOSTON SECURITIES INC.
Having Acted as Arrangers
AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT is
made as of February 12, 1998, by and among HVIDE MARINE INCORPORATED (the
"Borrower"), a Florida corporation having its principal place of
business at 0000 Xxxxx Xxxxx, X.X. Xxx 00000, Xxxx Xxxxxxxxxx Station, Xxxx
Xxxxxxxxxx, XX 00000, the Guarantors referred to herein, the lending
institutions listed on Schedule 1 hereto, CITIBANK, N.A. as administrative agent
(the "Administrative Agent"), BANKBOSTON, N.A., as documentation agent (the
"Documentation Agent"), and BANCBOSTON SECURITIES INC., as syndication agent
(the "Syndication Agent").
WHEREAS, the Borrower is a party to (i) a Revolving Credit Agreement,
dated as of September 30, 1997 (as amended, the "Existing Revolving Credit
Agreement") among the Borrower, the guarantors named therein (the "Existing
Guarantors"), the lending institutions party thereto (the "Existing Revolving
Credit Banks"), Citibank, N.A., as administrative agent and BankBoston, N.A. as
syndication agent (collectively, the "Existing Revolving Credit Agents"),
pursuant to which the Existing Revolving Credit Banks have made revolving credit
loans (the "Existing Revolving Credit Loans") to the Borrower and (ii) a Term
Loan Agreement, dated as of November 26, 1997 (as amended, the "Existing Term
Loan Agreement") among the Borrower, the Existing Guarantors, the lending
institutions party thereto (the "Existing Term Loan Banks" and together with the
Existing Revolving Credit Banks, the "Existing Banks") and BankBoston, N.A. as
agent (the "Existing Term Loan Agent" and together with the Existing Revolving
Credit Agents, the "Existing Agents"), pursuant to which the Existing Term Loan
Banks have made advances of a term loan (the "Existing Term Loan") to the
Borrower; and
WHEREAS, the Borrower, the Existing Guarantors, the Existing Banks and
the Existing Agents have agreed, subject to the satisfaction of the conditions
precedent set forth herein, to amend and restate the Existing Revolving Credit
Agreement, the Existing Revolving Credit Loans, the Existing Term Loan
Agreement, and the Existing Term Loan, as more fully set forth herein.
NOW, THEREFORE, the parties hereto hereby agree that, on and as of the
Closing Date, the Existing Revolving Credit Agreement, the Existing Revolving
Credit Loans, the Existing Term Loan Agreement, and the Existing Term Loan shall
be amended and restated as set forth herein and shall remain in force and effect
only as provided herein.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions.
The following terms shall have the meanings set forth in this ss.1 or
elsewhere in the provisions of this Credit Agreement referred to below:
Adjustment Date. The first day of the month immediately following the
month in
which a Compliance Certificate is delivered by the Borrower pursuant to
ss.11.4(d) hereof and the date of the consummation of any Permitted Acquisition
involving consideration paid or to be paid by the Borrower and its Subsidiaries
(including assumption of liabilities) in excess of $30,000,000.
Administrative Agent. As defined in the preamble hereto.
Administrative Agent's Head Office. The Administrative Agent's head
office located at Xxx Xxxx'x Xxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, or at
such other location as the Administrative Agent may designate from time to time.
Affiliate. Any Person that would be considered to be an affiliate of
the Borrower under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Agents. Collectively, the Administrative Agent and the Documentation
Agent.
Agents' Special Counsel. Xxxxxxx Xxxx LLP or such other counsel as may
be approved by the Agents.
Applicable Margin. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable percentage
set forth below with respect to the Leverage Ratio, determined on a Pro Forma
Basis as of the end of the fiscal quarter of the Borrower immediately preceding
the date of such Compliance Certificate:
Base Eurodollar Commitment
Level Leverage Ratio Rate Loans Rate Loans Fee
I Greater than or equal to 3.50 to 1.00 0.50% 1.50% 0.300%
II Less than 3.50 to 1.00 and greater 0.25% 1.25% 0.300%
than or equal to 3.00 to 1.00
III Less than 3.00 to 1.00 and greater 0% 1.00% 0.250%
than or equal to 2.25 to 1.00
IV Less than 2.25 to 1.00 and greater 0% 0.75% 0.200%
than or equal to 1.50 to 1.00
V Less than 1.50 to 1.00 0% 0.50% 0.150%
--------- ---- --------------------------------------------- --------------- ------------------ ------------------
Notwithstanding the foregoing, (a) until the delivery of the Compliance
Certificate for the fiscal quarter of the Borrower ending on or about March 31,
1998 the Applicable Margin shall not be less than the percentage corresponding
to Level III in the table above and (b) if the Borrower fails to deliver any
Compliance Certificate pursuant to ss.11.4(d) hereof, then for the period
commencing on the date such Compliance Certificate was due through the date
immediately preceding the Adjustment Date that occurs immediately following the
date on which such Compliance Certificate is delivered, the Applicable Margin
shall be that percentage corresponding to Level I in the table above.
Arrangers. BancBoston Securities Inc. and Citicorp Securities Inc.
Assignment and Acceptance. See ss.22.1.
Balance Sheet Date. December 31, 1996.
Banks. The lending institutions listed on Schedule 1 hereto and any
other Person who becomes an assignee of any rights and obligations of a Bank
pursuant to ss.22. The term "Banks" as used herein also includes the Issuing
Bank.
Base Rate. The higher of (i) the annual rate of interest announced from
time to time by the Administrative Agent at its head office in New York, New
York, as its "base rate" and (ii) one-half of one percent (1/2%) above the
Federal Funds Effective Rate. For the purposes of this definition, "Federal
Funds Effective Rate" shall mean for any day, the rate per annum 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, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three funds brokers of recognized standing selected by the
Administrative Agent.
Base Rate Loans. Revolving Credit Loans and all or any portion of the
Term Loan
bearing interest calculated by reference to the Base Rate.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which banking institutions in New York, New
York and Boston, Massachusetts, are open for the transaction of banking business
and, in the case of Eurodollar Rate Loans, also a day which is a Eurodollar
Business Day.
Capitalized Lease. With respect to the Borrower and its Subsidiaries,
any lease of any property (whether real, personal or mixed) by such Persons as
lessee that, in accordance with generally accepted accounting principles, either
would be required to be classified and accounted for as a capital lease on a
balance sheet of such Persons or otherwise be disclosed as such in a note to
such balance sheet, other than, in the case of the Borrower or a Subsidiary of
the Borrower, any such lease under which the Borrower or such Subsidiary is the
lessor.
Change of Control. Any of (a) Mr. J. Xxxx Xxxxx, members of his
immediate family, and estate planning trusts for the benefit of the foregoing
shall, at any time, cease to own shares of capital stock of the Borrower
representing at least twenty percent (20%) of the total shareholder votes of the
Borrower, (b) any Person or group of Persons shall, at any time, own a greater
percentage of the total shareholder votes of the Borrower than Mr. J. Xxxx
Xxxxx, members of his immediate family, and estate planning trusts for the
benefit of the foregoing, or (c) the occurrence of a "Change of Control" under,
and as defined in, the Senior Note Indenture.
Closing Date. The first date on which the conditions set forth in ss.14
have been satisfied and the Existing Revolving Credit Loans and the Existing
Term Loan are to be amended and restated as set forth herein, any Revolving
Credit Loan is to be made hereunder, and any Letter of Credit is to be issued
hereunder.
Code. The Internal Revenue Code of 1986.
Collateral. All of the property, rights and interests of the Borrower and
its Subsidiaries that are or are intended to be subject to the security
interests and mortgages created by the Security Documents.
Commitment. With respect to any Bank, such Bank's Revolving Credit Commitment
and/or Term Loan Commitment, as the context may require.
Compliance Certificate. See ss.11.4(d).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
Consolidated EBITDA. With respect to the Borrower and its Subsidiaries
and for any
period, the Consolidated Net Income of such Persons for such period, plus, to
the extent deducted in the calculation of Consolidated Net Income and without
duplication, Consolidated Total Interest Expense, income taxes paid,
depreciation, amortization and other non-cash adjustments to income for such
period, excluding amortized drydocking expenses.
Consolidated EBITDAR. Consolidated EBITDA for any period, plus, without
duplication, Consolidated Rental Expense for such period.
Consolidated Net Income. The consolidated net income of the Borrower
and its Subsidiaries, after deduction of all expenses, taxes, and other proper
charges, determined in accordance with generally accepted accounting principles,
without giving effect to any adjustments, accruals, deductions or entries
resulting from any gains or losses from the sale or other disposition of assets
of such Person during such period.
Consolidated Net Worth. The excess of the total assets of the Borrower
and its Subsidiaries on a consolidated basis in accordance with generally
accepted accounting principles over Consolidated Total Liabilities.
Consolidated Rental Expense. With respect to the Borrower and its
Subsidiaries and for any period, all payments of such Persons for such period
under operating leases and all other rental payments as determined in accordance
with generally accepted accounting principles.
Consolidated Total Indebtedness. As of any date, all Indebtedness of
the Borrower and its Subsidiaries, determined on a consolidated basis for such
Persons in accordance with generally accepted accounting principles.
Consolidated Total Interest Expense. With respect to the Borrower and
its Subsidiaries and for any period, the interest expense net of interest income
of such Persons for such period as determined in accordance with generally
accepted accounting principles.
Consolidated Total Liabilities. All the obligations in accordance with
generally accepted accounting principles which are included in determining the
total liabilities as shown on the liabilities side of the consolidated balance
sheet of the Borrower and its Subsidiaries.
Conversion Request. A notice given by the Borrower to the
Administrative Agent of the Borrower's election to convert or continue a Loan in
accordance with ss.2.7.
Credit Agreement. This Amended and Restated Revolving Credit and Term
Loan Agreement, including the Schedules and Exhibits hereto.
Debt Service Coverage Ratio. As at the end of each fiscal quarter of
the Borrower, the ratio of (a) Consolidated EBITDA for the period of the four
consecutive fiscal quarters of the Borrower then ending to (b) Consolidated
Total Interest Expense for the period of the four consecutive fiscal quarters of
the Borrower then ending.
Default. See ss.16.1.
Delinquent Bank. See ss.18.5.3.
Derivative Transaction. Any of (i) a "swap agreement" as defined in
Section 101(53B) of the United States Bankruptcy Code (other than a spot foreign
exchange transaction), (ii) any equity swap, floor, collar, cap or option
transaction, (iii) any option to enter into any of the foregoing, and (iv) any
combination of the foregoing.
Distribution. The declaration or payment of any dividend on or in
respect of any shares of any class of capital stock of the Borrower or any of
its Subsidiaries, other than dividends payable solely in shares of common stock
of the Borrower or such Subsidiary; the purchase, redemption, or other
retirement of any shares of any class of capital stock of the Borrower or such
Subsidiary, directly or indirectly through a Subsidiary of the Borrower or such
Subsidiary or otherwise; the return of capital by the Borrower or such
Subsidiary to its shareholders as such; or any other distribution on or in
respect of any shares of any class of capital stock of the Borrower or such
Subsidiary.
Documentation Agent. As defined in the preamble hereto.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank designated
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Revolving Credit Loan is made or
is to be made, the date on which the Existing Term Loan is amended and restated
as set forth herein, and the date on which any Revolving Credit Loan is
converted or continued in accordance with ss.2.7 or on which all or any portion
of the Term Loan is converted or continued in accordance with ss.4.5.2.
Eligible Assignee. Any of (i) a commercial bank organized under the
laws of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (ii) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with generally accepted accounting
principles; (iii) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any such country, and
having total assets in excess of $1,000,000,000, provided that such bank is
acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (iv) the
central bank of any country which is a member of the OECD; and (v) if, but only
if, any Event of Default has occurred and is continuing, any other bank,
insurance company, commercial finance company or other financial institution
approved by the Administrative Agent, such approval not to be unreasonably
withheld.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See ss.10.17.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office of such
Bank, if any, that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (i) the arithmetic average of the rates
per annum for each Reference Bank (rounded upwards to the nearest 1/16 of one
percent) at which each such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits at 11:00 a.m. (London time) two Eurodollar Business Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations of such
Eurodollar Lending Office are customarily conducted, for delivery on the first
day of such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Rate Loan of such Reference
Bank to which such Interest Period applies, divided by (ii) a number equal to
1.00 minus the Eurocurrency Reserve Rate, if applicable.
Eurodollar Rate Loans. Revolving Credit Loans and all or any portion
of the Term Loan bearing interest calculated by reference to the Eurodollar
Rate.
Event of Default. See ss.16.1.
Existing Revolving Credit Agreement. See the preamble hereto.
Existing Revolving Credit Loans. See the preamble hereto.
Existing Term Loan. See the preamble hereto.
Existing Term Loan Agreement. See the preamble hereto.
Fee Letter. The letter agreement, dated as of February 12, 1998, among the
Borrower, the Administrative Agent, the Documentation Agent and the Arrangers.
Fronting Fee. See ss.5.6.
generally accepted accounting principles. (i) When used in ss.13,
whether directly or indirectly through reference to a capitalized term used
therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantors. Each entity executing this Credit Agreement as a guarantor
and each additional Subsidiary of the Borrower which delivers a guaranty of the
Obligations pursuant to ss.9 hereof.
Guaranty. The Guaranty set forth in ss.6 hereof and each additional
guaranty of the Obligations delivered pursuant to ss.9 hereof.
Indebtedness. (a) Any liability of any Person (i) for borrowed money, or
under any reimbursement obligation related to a letter of credit or bid or
performance bond facility, or (ii) evidenced by a bond, note, debenture or other
evidence of indebtedness (including a
purchase money obligation) representing extensions of credit or given in
connection with the acquisition of any business, property, service or asset of
any kind (other than a trade payable or other current liability arising in the
ordinary course of business) or (iii) for obligations with respect to (A) an
operating lease calculated on the basis of the present value discounted at ten
percent (10%) on the future payments from such Person under such operating
lease, or (B) a lease of real or personal property that is or would be
classified and accounted for as a Capitalized Lease; (b) any liability of others
either for any lease, dividend or letter of credit, or for any obligation
described in the preceding clause (a) that (i) the Person has guaranteed or that
is otherwise its legal liability (whether contingent or otherwise or direct or
indirect, but excluding endorsements of negotiable instruments for deposit or
collection in the ordinary course of business) or (ii) is secured by any Lien on
any property or asset owned or held by that Person, regardless whether the
obligation secured thereby shall have been assumed by or is a personal liability
of that Person; and (c) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (a) and (b), above.
Ineligible Securities. Securities which may not be underwritten or dealt in
by member banks of the Federal Reserve System under Section 16 of the Banking
Act of 1993 (12 U.S.C. ss.24, Seventh), as amended.
Insurance Assignments. Collectively, the several Assignments of
Insurance Policies, whether dated on or after the Closing Date, entered into
between the Documentation Agent and the Borrower and those Guarantors owning
Vessels which, pursuant to ss.9 hereof, are subject to a perfected first
priority mortgage in favor of the Documentation Agent.
Interest Payment Date. (i) As to any Base Rate Loan, the last day of
the calendar quarter with respect to interest accrued during such calendar
quarter, including, without limitation, the calendar quarter which includes the
Drawdown Date of such Base Rate Loan; (ii) as to any Eurodollar Rate Loan in
respect of which the Interest Period is (A) 3 months or less, the last day of
such Interest Period and (B) more than 3 months, the date that is 3 months from
the first day of such Interest Period and, in addition, the last day of such
Interest Period.
Interest Period. With respect to each Revolving Credit Loan and all or
any portion of the Term Loan, (i) initially, the period commencing on the
Drawdown Date of such Loan and ending on the last day of one of the periods set
forth below, as selected by the Borrower in a Loan Request or as otherwise
required by the terms of this Credit Agreement (A) for any Base Rate Loan, the
last day of the calendar quarter; and (B) for any Eurodollar Rate Loan, 1, 2, 3,
or 6 months; and (ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Revolving Credit Loan or all
or such portion of the Term Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Conversion Request;
provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate
Loan would otherwise end on a day that is not a Eurodollar Business
Day, that Interest Period shall
be extended to the next succeeding Eurodollar 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 immediately preceding Eurodollar Business Day;
(b) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in
ss.2.7, the Borrower shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Base Rate Loan and the
continuance of all Base Rate Loans as Base Rate Loans on the last day
of the then current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan
that begins on the last Eurodollar Business Day of a calendar month (or
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 Eurodollar Business Day of a calendar month; and
(e) any Interest Period that would otherwise extend beyond the
Revolving Credit Maturity Date, if comprising a Revolving Credit Loan,
shall end on the Revolving Credit Maturity Date or the Term Loan
Maturity Date, if comprising all or a portion of the Term Loan, shall
end on the Term Loan Maturity Date.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (i) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (ii) there
shall be deducted in respect of each such Investment any amount received as a
return of capital (but only by repurchase, redemption, retirement, repayment,
liquidating dividend or liquidating distribution); (iii) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise; and (iv) there shall
not be deducted from the aggregate amount of Investments any decrease in the
value thereof.
Issuing Bank. BankBoston, N.A.
Letter of Credit. See ss.5.1.1.
Letter of Credit Application. See ss.5.1.1.
Letter of Credit Fee. See ss.5.6.
Letter of Credit Participation. See ss.5.1.4.
Leverage Ratio. As at the end of each fiscal quarter of the Borrower,
the ratio of (a) Consolidated Total Indebtedness as at the end of such fiscal
quarter to (b) Consolidated EBITDAR, determined on a Pro Forma Basis for the
period of the four consecutive fiscal quarters of the Borrower then ending;
provided that for purposes of calculating the Leverage Ratio for the fiscal
quarter of the Borrower ending on or about (i) December 31, 1997, Consolidated
EBITDAR shall be Consolidated EBITDAR for the period of the one fiscal quarter
then ending, multiplied by 4, (ii) March 31, 1998, Consolidated EBITDAR shall be
Consolidated EBITDAR for the period of the two consecutive fiscal quarters then
ending, multiplied by 2, and (iii) June 30, 1998, Consolidated EBITDAR shall be
Consolidated EBITDAR for the period of the three consecutive fiscal quarters
then ending, multiplied by 1.3333.
Loan Documents. This Credit Agreement, the Guaranties, the Notes, the
Letters of Credit, the Letter of Credit Applications, the Security Documents and
the Fee Letter.
Loan Request. See ss.2.6.
Loans. The Revolving Credit Loans and the Term Loan.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Multiemployer Plan. Any multiemployer plan within the meaning of ss.3(37)
of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
Non-Guarantor Subsidiary. See ss.9.
Notes. The Revolving Credit Notes and the Term Notes.
Obligations. All indebtedness, obligations and liabilities of any of
the Borrower and its Subsidiaries to any of the Banks and the Agents,
individually or collectively, existing on the date of this Credit Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents or in
respect of any of the Loans made or Reimbursement Obligations incurred or any of
the Notes, Letter of Credit Applications, Letters of Credit, or other
instruments at any time evidencing any thereof.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of ERISA
and any successor entity or entities having similar responsibilities.
Permitted Acquisition. The acquisition by the Borrower or any of its
Subsidiaries of
any Person, business, division, or specified group of assets, provided that the
following conditions are met with respect to any such acquisition:
(a) immediately before, immediately after, and after giving
effect to, such acquisition, no Default or Event of Default shall have
occurred and be continuing;
(b) concurrently with the effectiveness of any such
acquisition involving consideration paid or to be paid by the Borrower
and its Subsidiaries (including assumption of liabilities) in excess of
$30,000,000, the Borrower shall have delivered to the Agents and the
Banks a Compliance Certificate demonstrating the Borrower's compliance
with the covenants set forth in ss.13 hereof on a Pro Forma Basis
(after giving effect to such acquisition) for the immediately
succeeding three (3) fiscal quarters of the Borrower, and the
Applicable Margin shall be adjusted as of the date of such acquisition
to reflect any change in the Leverage Ratio after giving effect to such
acquisition;
(c) either (i) such acquisition is the acquisition of assets
only (for use in substantially the same line of business as the line of
business of the Borrower) and not the capital stock or other equity
interests of any Person; or (ii) such acquisition involves the purchase
of the capital stock or other equity interests of a Person and each of
the following conditions is met:
(A) such acquisition is the acquisition of one
hundred percent (100%) of the capital stock or other equity
interests of such Person,
(B) such Person is in substantially the same line of
business as the Borrower,
(C) such acquisition has been approved by the board
of directors (or other similar body) of such Person, and
(D) concurrently with the effectiveness of such
acquisition, the Borrower shall cause such Person to guaranty
all of the Obligations hereunder pursuant to a Guaranty in
form and substance satisfactory to the Administrative Agent,
which such Guaranty shall be a Loan Document hereunder.
Permitted Liens. Liens, security interests and other encumbrances
permitted by ss.12.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Pledge Agreements. Collectively, the several Pledge Agreements, whether
dated on or after the Closing Date, entered into between the Borrower and/or the
Guarantors and the Documentation Agent, in each case, with respect to the
capital stock or other equity interests of those Guarantors owning Vessels
which, pursuant to ss.9 hereof, are subject to a perfected
first priority mortgage in favor of the Documentation Agent.
Pro Forma Basis. In connection with any proposed Permitted Acquisition
and the calculation of the Applicable Margin, (i) the calculation of compliance
with the financial covenants set forth in ss.13 hereof by the Borrower and its
Subsidiaries (including the Person or asset(s) to be acquired) with reference to
the audited historical financial results of such Person, if available, and if
not so available, then with reference to such management certified financial
results of such Person as shall be reasonably acceptable to the Administrative
Agent (or, if an acquisition of assets, the financial results attributable to
such assets) and the Borrower and its Subsidiaries for the applicable Test
Period ending immediately prior to the date of such acquisition, after giving
effect on a pro forma basis to such Permitted Acquisition in the manner
described below and (ii) the calculation of compliance with the financial
covenants set forth in ss.13 hereof by the Borrower and its Subsidiaries
(including the Person or assets(s) to be acquired) with reference to the audited
historical financial results of such Person, if available, and if not so
available, such management certified financial results of such Person as shall
be reasonably acceptable to the Administrative Agent (or, if an acquisition of
assets, the financial results attributable to such assets) and the Borrower and
its Subsidiaries for each of the three fiscal quarters of the Borrower
immediately following such Permitted Acquisition, in each case for the Test
Period applicable to such financial covenant, after giving effect on a pro forma
basis to such Permitted Acquisition in the manner described below:
(i) all Indebtedness (whether under this Credit Agreement or
otherwise) and any other balance sheet adjustments incurred or made in
connection with the Permitted Acquisition shall be deemed to have been
incurred or made on the first day of the Test Period, and all
Indebtedness of the Person acquired or to be acquired in such Permitted
Acquisition which was or will have been repaid in connection with the
consummation of the Permitted Acquisition shall be deemed to have been
repaid concurrently with the incurrence of the Indebtedness incurred in
connection with the Permitted Acquisition;
(ii) all Indebtedness assumed to have been incurred pursuant
to the preceding clause (i) shall be deemed to have borne interest at
the sum of (a) the arithmetic mean of (x) the Eurodollar Rate for
Eurodollar Rate Loans having an Interest Period of one month in effect
on the first day of the Test Period and (y) the Eurodollar Rate for
Eurodollar Rate Loans having an Interest Period of one month in effect
on the last day of the Test Period plus (b) the Applicable Margin then
in effect (after giving effect to the Permitted Acquisition on a Pro
Forma Basis); and
(iii) other reasonable cost savings, expenses and other income
statement or operating statement adjustments which are attributable to
the change in ownership and/or management resulting from such Permitted
Acquisition as may be approved by the Administrative Agent in writing
(which approval shall not be unreasonably withheld) shall be deemed to
have been realized on the first day of the Test Period.
Real Estate. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to a Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
Reference Bank. Citibank, N.A..
Register. See ss.22.3.
Reimbursement Obligation. The Borrower's obligation to reimburse the
Issuing Bank and the other Banks on account of any drawing under any Letter of
Credit as provided in ss.5.2.
Required Banks. As of any date, the Banks whose sum of (i) Revolving
Credit Exposure plus (ii) the principal amount of the Term Loan owing to such
Bank constitutes at least fifty-one percent (51%) of the sum of (i) the
aggregate Revolving Credit Exposure of all the Banks plus (ii) the aggregate
principal amount of the Term Loan outstanding on such date.
Revolving Credit Commitment. With respect to each Bank, the amount set
forth on Schedule 1 hereto as the amount of such Bank's commitment to amend and
restate the "Existing Revolving Credit Loans" and to make Revolving Credit Loans
to the Borrower, as the same may be reduced from time to time; or if such
commitment is terminated pursuant to the provisions hereof, zero.
Revolving Credit Commitment Percentage. With respect to each Bank, the
percentage set forth on Schedule 1 hereto as such Bank's percentage of the Total
Revolving Credit Commitment.
Revolving Credit Exposure. With respect to any Bank at any date of
determination, (i) prior to the termination of the Revolving Credit Commitments,
such Bank's Revolving Credit Commitment and (b) after the termination of the
Revolving Credit Commitments, the sum of (i) the aggregate principal amount of
the Revolving Credit Loans of such Bank plus (ii) the aggregate amount of such
Bank's Letter of Credit Participations.
Revolving Credit Loans. The Existing Revolving Credit Loans which are
amended and restated pursuant to this Credit Agreement and the revolving credit
loans made or to be made by the Banks to the Borrower pursuant to ss.2.
Revolving Credit Maturity Date. February 12, 2003.
Revolving Credit Note Record. A Record with respect to a Revolving
Credit Note.
Revolving Credit Notes. See ss.2.4.
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities.
Security Agreements. Collectively, the several Security Agreements,
whether dated on or after the Closing Date, entered into between the
Documentation Agent and the Borrower and those Guarantors owning Vessels which,
pursuant to ss.9 hereof, are subject to a perfected first priority mortgage in
favor of the Documentation Agent.
Security Documents. Collectively, the Vessel Mortgages, the Security
Agreements, the Insurance Assignments, and the Pledge Agreements.
Senior Note Indenture. The Indenture dated as of February 19, 1998,
between The Bank of New York, as trustee and the Borrower, in form and substance
satisfactory to the Agents.
Senior Notes. The senior unsecured promissory notes due 2008 of the
Borrower in an aggregate principal amount not to exceed $350,000,000, issued
pursuant to the Senior Note Indenture and otherwise on terms and conditions
(including, without limitation, with respect to interest rate, tenor and
covenants) as shall be satisfactory to the Agents.
Subsidiary. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock.
Syndication Agent. As defined in the preamble hereto.
Term Loan. The Existing Term Loan to be amended and restated on the Closing
Date and maintained by the Banks pursuant to ss.4 hereof.
Term Loan Commitment. With respect to each Bank, the amount set forth
on Schedule 1 hereto as the amount of such Bank's commitment to amend and
restate the Existing Term Loan and to maintain the Term Loan, as the same may be
reduced from time to time; or if such Commitment is terminated pursuant to the
provisions hereof, zero.
Term Loan Commitment Percentage. With respect to each Bank, the
percentage set forth on Schedule 1 hereto as such Bank's percentage of the Total
Term Loan Commitment.
Term Loan Maturity Date. March 31, 2005.
Term Note(s). See ss.4.2.
Term Note Record. A Record with respect to a Term Note.
Test Period. In connection with the calculation of the financial
covenants set forth in ss.13 hereof following any Permitted Acquisition, the
period of all fiscal quarters (and any portion of a fiscal quarter) prior to the
date of such Permitted Acquisition included in the definition of such financial
covenant.
Total Commitment. The sum of the Total Revolving Credit Commitment and
the
Total Term Loan Commitment, each as in effect from time to time.
Total Revolving Credit Commitment. The sum of the Revolving Credit
Commitments of the Banks, as in effect from time to time.
Total Term Loan Commitment. The sum of the Term Loan Commitments of the
Banks, as in effect from time to time.
Trust Securities. The 6 1/2% Trust Convertible Preferred Securities,
issued by Hvide Capital Trust, a Delaware statutory business trust and the 6
1/2% Convertible Subordinated Debentures due June 15, 2012 issued by the
Borrower to Hvide Capital Trust.
Type. As to any Revolving Credit Loan or all or any portion of the Term
Loan, its nature as a Base Rate Loan or a Eurodollar Rate Loan.
Uniform Customs. With respect to any Letter of Credit, the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500 or any successor version thereto adopted
by the Issuing Bank in the ordinary course of its business as a letter of credit
issuer and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrower does not reimburse the Issuing Bank and the other Banks on the date
specified in, and in accordance with, ss.5.2.
Vessel(s). Collectively, all vessels owned by the Borrower and its
Subsidiaries, and individually, any of such vessels.
Vessel Mortgages. Collectively, the several First Preferred Vessel or
Fleet Mortgages, whether dated on or after the Closing Date, entered into or to
be entered into between the Borrower and/or the Guarantors and the Documentation
Agent.
Voting Stock. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such document or
agreement as amended, restated, modified or supplemented from time to time
in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the singular.
(c) A reference to any law includes any amendment or modification to such law.
(d) A reference to any Person includes its permitted successors and permitted
assigns.
(e) Accounting terms not otherwise defined herein have the meanings assigned to
them by generally accepted accounting principles applied on a consistent
basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by generally accepted
accounting principles, which terms are defined in the Uniform Commercial
Code as in effect in the State of New York, have the meanings assigned to
them therein, with the term "instrument" being that defined under Article 9
of the Uniform Commercial Code.
(h) Reference to a particular "ss." refers to that section of this Credit
Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import shall
refer to this Credit Agreement as a whole and not to any particular section
or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of periods of time
from a specified date to a later specified date, the word "from" means
"from and including," the words "to" and "until" each mean "to but
excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.
(l) This Credit Agreement and the other Loan Documents are the result of
negotiation among, and have been reviewed by counsel to, among others, the
Agents, the Borrower and the Guarantors and are the product of discussions
and negotiations among all parties. Accordingly, this Credit Agreement and
the other Loan Documents are not intended to be construed against the
Agents or any of the Banks merely on account of either Agent's or any
Bank's involvement in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend.
Subject to the terms and conditions set forth in this Credit
Agreement, each of the Banks severally agrees to lend to the Borrower and the
Borrower may borrow, repay, and reborrow from time to time from the Closing Date
up to but not including the Revolving Credit Maturity Date upon notice by the
Borrower to the Administrative Agent given in accordance with ss.2.6, such sums
as are requested by the Borrower up to a maximum aggregate amount outstanding
(after giving effect to all amounts requested) at any one time equal to such
Bank's Revolving Credit Commitment minus such Bank's Revolving Credit Commitment
Percentage of the sum of the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations, provided that the sum of the outstanding amount of the Revolving
Credit Loans (after giving effect to all amounts requested) plus the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not at any time
exceed the Total Revolving Credit Commitment. The Revolving Credit Loans shall
be made pro rata in accordance with each Bank's Revolving Credit Commitment
Percentage. Each request for a Revolving Credit Loan hereunder shall constitute
a representation and warranty by the Borrower that the conditions set forth in
ss.14 and ss.15, in the case of the initial Revolving Credit Loans to be made on
the Closing Date, and ss.13, in the case of all other Revolving Credit Loans,
have been satisfied on the date of such request.
2.2. Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the accounts of the Banks in accordance with their respective
Revolving Credit Commitment Percentages a commitment fee equal to the Applicable
Margin on the average daily amount during each calendar quarter or portion
thereof from the date hereof to the Revolving Credit Maturity Date by which the
Total Revolving Credit Commitment minus the sum of the Maximum Drawing Amount
and all Unpaid Reimbursement Obligations exceeds the outstanding amount of
Revolving Credit Loans during such calendar quarter. The commitment fee shall be
payable quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the Revolving Credit Maturity
Date or any earlier date on which the Revolving Credit Commitments shall
terminate.
2.3. Reduction of Total Revolving Credit Commitment. The Borrower shall
have the right at any time and from time to time upon three (3) Business Days
prior written notice to the Administrative Agent to reduce by $10,000,000 or an
integral multiple of $1,000,000 in excess thereof or terminate entirely the
Total Revolving Credit Commitment, whereupon the Revolving Credit Commitments of
the Banks shall be reduced pro rata in accordance with their respective
Revolving Credit Commitment Percentages of the amount specified in such notice
or, as the case may be, terminated. Promptly after receiving any notice of the
Borrower delivered pursuant to this ss.2.3, the Administrative Agent will notify
the Banks of the substance thereof. Upon the effective date of any such
reduction or termination, the Borrower shall pay to the Administrative Agent for
the respective accounts of the Banks, in accordance with their Revolving Credit
Commitment Percentages, the full amount of any commitment fee then accrued on
the amount of the reduction. No reduction or termination of the Revolving Credit
Commitments may be reinstated.
2.4. The Revolving Credit Notes. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of Exhibit A-1 hereto (each a "Revolving Credit Note"), dated as of the Closing
Date and completed with
appropriate insertions. One Revolving Credit Note shall be payable to the order
of each Bank in a principal amount equal to such Bank's Revolving Credit
Commitment or, if less, the outstanding amount of all Revolving Credit Loans
made by such Bank, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Bank to make or cause to be made, at or
about the time of the Drawdown Date of any Revolving Credit Loan or at the time
of receipt of any payment of principal on such Bank's Revolving Credit Note, an
appropriate notation on such Bank's Revolving Credit Note Record reflecting the
making of such Revolving Credit Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Revolving Credit Loans set forth on such
Bank's Revolving Credit Note Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount on such Bank's Revolving
Credit Note Record shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
2.5. Interest on Revolving Credit Loans. Except as otherwise provided
in ss.8.9,
(a) Each Revolving Credit Loan that is a Base Rate Loan shall
bear interest for the period commencing with the Drawdown Date thereof
and ending on the last day of the Interest Period with respect thereto
at the rate per annum equal to the Base Rate plus the Applicable
Margin.
(b) Each Revolving Credit Loan that is a Eurodollar Rate Loan
shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of the Interest Period with respect
thereto at the rate per annum equal to the Eurodollar Rate, determined
for such Interest Period plus the Applicable Margin.
(c) The Borrower promises to pay interest on each Revolving
Credit Loan in arrears on each Interest Payment Date with respect
thereto.
2.6. Requests for Revolving Credit Loans. The Borrower shall give to
the Administrative Agent written notice in the form of Exhibit B hereto (or
telephonic notice confirmed in a writing in the form of Exhibit B hereto) of
each Revolving Credit Loan requested hereunder (a "Loan Request") no less than
(i) 10:00 a.m. one Business Day prior to the proposed Drawdown Date of any Base
Rate Loan (which must be a Business Day) and (ii) three (3) Eurodollar Business
Days prior to the proposed Drawdown Date of any Eurodollar Rate Loan (which must
be a Business Day). Each such notice shall specify (A) the principal amount of
the Revolving Credit Loan requested, (B) the proposed Drawdown Date of such
Revolving Credit Loan, (C) the Interest Period for such Revolving Credit Loan
and (D) the Type of such Revolving Credit Loan. Promptly upon receipt of any
such notice, the Administrative Agent shall notify each of the Banks thereof.
Each Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Revolving Credit Loan requested from the
Banks on the proposed Drawdown Date. Each Loan Request shall be in a minimum
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
2.7. Conversion Options.
2.7.1. Conversion to Different Type of Revolving Credit Loan.
The Borrower may elect from time to time to convert any outstanding
Revolving Credit Loan to a Revolving Credit Loan of another Type,
provided that (i) with respect to any such conversion of a Eurodollar
Rate Loan to a Base Rate Loan, the Borrower shall give the
Administrative Agent prior written notice of such election not later
than 10:00 a.m. one Business Day prior to the proposed effective date
of such election; (ii) with respect to any such conversion of a Base
Rate Loan to a Eurodollar Rate Loan, the Borrower shall give the
Administrative Agent at least three (3) Eurodollar Business Days prior
written notice of such election; (iii) with respect to any such
conversion of a Eurodollar Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period
with respect thereto; and (iv) no Loan may be converted into a
Eurodollar Rate Loan when any Default or Event of Default has occurred
and is continuing. On the date on which such conversion is being made
each Bank shall take such action as is necessary to transfer its
Revolving Credit Commitment Percentage of such Revolving Credit Loans
to its Domestic Lending Office or its Eurodollar Lending Office, as the
case may be. All or any part of outstanding Revolving Credit Loans of
any Type may be converted into a Revolving Credit Loan of another Type
as provided herein, provided that any partial conversion shall be in an
aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof. Each Conversion Request relating to the
conversion of a Base Rate Loan to a Eurodollar Rate Loan shall be
irrevocable by the Borrower.
2.7.2. Continuation of Type of Revolving Credit Loan. Any
Revolving Credit Loan of any Type may be continued as a Revolving
Credit Loan of the same Type upon the expiration of an Interest Period
with respect thereto by compliance by the Borrower with the notice
provisions contained in ss.2.7.1; provided that no Eurodollar Rate Loan
may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to a
Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of
Default of which officers of the Administrative Agent active upon the
Borrower's account have actual knowledge. In the event that the
Borrower fails to provide any such notice with respect to the
continuation of any Eurodollar Rate Loan as such, then such Eurodollar
Rate Loan shall be automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating thereto. The
Administrative Agent shall notify the Banks promptly when any such
automatic conversion contemplated by this ss.2.7 is scheduled to occur.
2.7.3. Eurodollar Rate Loans. Any conversion to or from
Eurodollar Rate Loans shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate
principal amount of all Eurodollar Rate Loans having the same Interest
Period shall not be less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof. No more than eight (8) Eurodollar Rate
Loans shall be outstanding at one time.
2.8. Funds for Revolving Credit Loans.
2.8.1. Funding Procedures. Not later than 12:00 noon (New York
time) on the proposed Drawdown Date of any Revolving Credit Loans, each
of the Banks will make available to the Administrative Agent, at the
Administrative Agent's Head Office, in immediately available funds, the
amount of such Bank's Revolving Credit Commitment Percentage of the
amount of the requested Revolving Credit Loans. Upon receipt from each
Bank of such amount, and upon receipt of the documents required by
ss.ss.14 and 15 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Administrative Agent will make
available to the Borrower the aggregate amount of such Revolving Credit
Loans made available to the Administrative Agent by the Banks. The
failure or refusal of any Bank to make available to the Administrative
Agent at the aforesaid time and place on any Drawdown Date the amount
of its Revolving Credit Commitment Percentage of the requested
Revolving Credit Loans shall not relieve any other Bank from its
several obligation hereunder to make available to the Administrative
Agent the amount of such other Bank's Revolving Credit Commitment
Percentage of any requested Revolving Credit Loans.
2.8.2. Advances by Administrative Agent. The Administrative
Agent may, unless notified to the contrary by any Bank prior to a
Drawdown Date, assume that such Bank has made available to the
Administrative Agent on such Drawdown Date the amount of such Bank's
Revolving Credit Commitment Percentage of the Revolving Credit Loans to
be made on such Drawdown Date, and the Administrative Agent may (but it
shall not be required to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. If any Bank makes
available to the Administrative Agent such amount on a date after such
Drawdown Date, such Bank shall pay to the Administrative Agent on
demand an amount equal to the product of (i) the average computed for
the period referred to in clause (iii) below, of the weighted average
interest rate paid by the Administrative Agent for federal funds
acquired by the Administrative Agent during each day included in such
period, times (ii) the amount of such Bank's Revolving Credit
Commitment Percentage of such Revolving Credit Loans, times (iii) a
fraction, the numerator of which is the number of days that elapse from
and including such Drawdown Date to the date on which the amount of
such Bank's Revolving Credit Commitment Percentage of such Revolving
Credit Loans shall become immediately available to the Administrative
Agent, and the denominator of which is 365. A statement of the
Administrative Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be prima facie evidence of the amount
due and owing to the Administrative Agent by such Bank. If the amount
of such Bank's Revolving Credit Commitment Percentage of such Revolving
Credit Loans is not made available to the Administrative Agent by such
Bank within three (3) Business Days following such Drawdown Date, the
Administrative Agent shall be entitled to recover such amount from the
Borrower on demand, with interest thereon at the rate per annum
applicable to the Revolving Credit Loans made on such Drawdown Date.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. Maturity. The Borrower promises to pay on the Revolving Credit
Maturity Date, and there shall become absolutely due and payable on the
Revolving Credit Maturity Date, all of the Revolving Credit Loans outstanding on
such date, together with any and all accrued and unpaid interest thereon.
3.2. Mandatory Repayments of Revolving Credit Loans. If at any time the
sum of the aggregate outstanding amount of the Revolving Credit Loans, the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds the
Total Revolving Credit Commitment, then the Borrower shall immediately pay the
amount of such excess to the Administrative Agent for the respective accounts of
the Banks for application: first, to any Unpaid Reimbursement Obligations;
second to the Revolving Credit Loans; and third, to provide the Issuing Bank
cash collateral for Reimbursement Obligations as contemplated by ss.5.2(b) and
(c). Each payment of Unpaid Reimbursement Obligations or prepayment of Revolving
Credit Loans shall be allocated among the Banks, in proportion, as nearly as
practicable, to each Reimbursement Obligation or (as the case may be) the
respective unpaid principal amount of each Bank's Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion.
3.3. Optional Repayments of Revolving Credit Loans. The Borrower shall
have the right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
of any Eurodollar Rate Loans pursuant to this ss.3.3 may be made only on the
last day of the Interest Period relating thereto. The Borrower shall give the
Administrative Agent notice of any proposed prepayment pursuant to this ss.3.3
of Base Rate Loans not later than 11:00 a.m. New York time on the Business Day
prior to the date of such prepayment and of any proposed prepayment pursuant to
this ss.3.3 of Eurodollar Rate Loans not less than two (2) Eurodollar Business
Days prior to the date of such prepayment, in each case specifying the proposed
date of prepayment of Revolving Credit Loans, the principal amount to be prepaid
and which Loan is to be repaid. Each such partial prepayment of the Revolving
Credit Loans shall be in a minimum amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof, shall be accompanied by the payment of accrued
interest on the principal prepaid to the date of prepayment and shall be
applied, in the absence of instruction by the Borrower, first to the principal
of Base Rate Loans and then to the principal of Eurodollar Rate Loans. Each
partial prepayment shall be allocated among the Banks in accordance with their
respective Revolving Credit Commitment Percentages, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each Bank's Revolving
Credit Note, with adjustments to the extent practicable to equalize any prior
repayments not exactly in proportion.
4. THE TERM LOAN.
4.1. Commitment to Amend and Restate the Existing Term Loan. Subject to the
terms and conditions set forth in this Credit Agreement, each Bank agrees that,
on the Closing Date, the Existing Term Loan shall be amended and restated as set
forth herein. The Banks
shall make arrangements among themselves such that the outstanding amount of the
Term Loan owing to each Bank on the Closing Date shall be an amount equal to
such Bank's Term Loan Commitment Percentage of the principal amount of
$150,000,000. The Borrower agrees that it shall, on the Closing Date, repay to
the Existing Term Loan Banks the amount of the Existing Term Loan in excess of
$150,000,000.
4.2. The Term Notes. The Term Loan shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit A-2 hereto
(each a "Term Note"), dated the Closing Date and completed with appropriate
insertions. One Term Note shall be payable to the order of each Bank in a
principal amount equal to such Bank's Term Loan Commitment Percentage of the
Term Loan and representing the obligation of the Borrower to pay to such Bank
such principal amount or, if less, the outstanding amount of such Bank's Term
Loan Commitment Percentage of the Term Loan, plus interest accrued thereon, as
set forth below. The Borrower irrevocably authorizes each Bank to make or cause
to be made a notation on such Bank's Term Note Record reflecting the original
principal amount of such Bank's Term Loan Commitment Percentage of the Term Loan
and, at or about the time of such Bank's receipt of any principal payment on
such Bank's Term Note, an appropriate notation on such Bank's Term Note Record
reflecting such payment. The aggregate unpaid amount set forth on such Bank's
Term Note Record shall be prima facie evidence of the principal amount thereof
owing and unpaid to such Bank, but the failure to record, or any error in so
recording, any such amount on such Bank's Term Note Record shall not affect the
obligations of the Borrower hereunder or under any Term Note to make payments of
principal of and interest on any Term Note when due.
4.3. Schedule of Installment Payments of Principal of Term Loan. The
Borrower promises to pay to the Administrative Agent, for the account of the
Banks in accordance with their Term Loan Commitment Percentages, the principal
amount of the Term Loan in twenty-eight (28) consecutive quarterly payments,
each in the amount of $5,357,143, such installments to be due and payable on the
last day of each calendar quarter of each calendar year, commencing on June 30,
1998, with a final payment on the Term Loan Maturity Date in an amount equal to
the unpaid balance of the Term Loan.
4.4. Optional Prepayment of Term Loan. The Borrower shall have the
right at any time to prepay the Term Notes on or before the Term Loan Maturity
Date, as a whole, or in part, upon not less than five (5) Business Days prior
written notice to the Administrative Agent, without premium or penalty, provided
that (i) each partial prepayment shall be in the principal amount of $5,000,000
or an integral multiple thereof, (ii) no portion of the Term Loan bearing
interest at the Eurodollar Rate may be prepaid pursuant to this ss.4.4 except on
the last day of the Interest Period relating thereto, and (iii) each partial
prepayment shall be allocated among the Banks in accordance with their
respective Term Loan Commitment Percentages, in proportion, as nearly as
practicable, to the respective outstanding amount of each Bank's Term Note, with
adjustments to the extent practicable to equalize any prior prepayments not
exactly in proportion. Any prepayment of principal of the Term Loan shall
include all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Term Loan in the
inverse order of maturity. No amount repaid with respect to the Term Loan may be
reborrowed.
4.5. Interest on Term Loan.
4.5.1. Interest Rates. Except as otherwise provided in ss.8.9, the Term Loan
shall bear interest during each Interest Period relating to all or any
portion of the Term Loan at the following rates:
(a) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period determined by
reference to the Base Rate, the Term Loan or such portion
shall bear interest during such Interest Period at the rate
per annum equal to the Base Rate plus the Applicable Margin.
(b) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period determined by
reference to the Eurodollar Rate, the Term Loan or such
portion shall bear interest during such Interest Period at the
rate per annum equal to the Eurodollar Rate plus the
Applicable Margin, determined for such Interest Period.
The Borrower promises to pay interest on the Term Loan or any portion
thereof outstanding during each Interest Period in arrears on each
Interest Payment Date applicable to such Interest Period.
4.5.2. Notification by Borrower. The Borrower shall notify the Administrative
Agent, such notice to be irrevocable, at least three (3) Eurodollar
Business Days prior to the Drawdown Date of the Term Loan if all or any
portion of the Term Loan is to bear interest determined by reference to the
Eurodollar Rate. After the Existing Term Loan has been converted into the
Term Loan, the provisions ofss.2.7 shall apply mutatis mutandis with
respect to all or any portion of the Term Loan so that the Borrower may
have the same interest rate options with respect to all or any portion of
the Term Loan as it would be entitled to with respect to the Revolving
Credit Loans.
4.5.3. Amounts, etc. Any portion of the Term Loan bearing interest determined by
reference to the Eurodollar Rate relating to any Interest Period shall be
in a minimum amount of $5,000,000 or an integral multiple thereof. No
Interest Period relating to the Term Loan or any portion thereof bearing
interest determined by reference to the Eurodollar
Rate shall extend beyond the date on which a regularly scheduled installment
payment of the principal of the Term Loan is to be made unless a portion of
the Term Loan at least equal to such installment payment has an Interest
Period ending on such date or is then bearing interest determined by
reference to the Base Rate.
5. LETTERS OF CREDIT.
5.1. Letter of Credit Commitments.
5.1.1. Commitment to Issue Letters of Credit. Subject to the terms and
conditions hereof and the execution and delivery by the Borrower of a
letter of credit application on the Issuing Bank's customary form (a
"Letter of Credit Application"), the Issuing Bank on behalf of the Banks
and in reliance upon the agreement of the Banks set forth inss.5.1.4 and
upon the representations and warranties of the Borrower contained herein,
agrees, in its individual capacity, to issue, extend and renew for the
account of the Borrower one or more standby or documentary letters of
credit (individually, a "Letter of Credit"), in such form as may be
requested from time to time by the Borrower and agreed to by the Issuing
Bank; provided, however, that, after giving effect to such request, (a) the
sum of the aggregate Maximum Drawing Amount and all Unpaid Reimbursement
Obligations shall not exceed $20,000,000 at any one time and (b) the sum of
(i) the
Maximum Drawing Amount, (ii) all Unpaid Reimbursement Obligations, and (iii) the
amount of all Revolving Credit Loans outstanding shall not exceed the Total
Revolving Credit Commitment.
5.1.2. Letter of Credit Applications. Each Letter of Credit Application shall be
completed to the satisfaction of the Issuing Bank. In the event that any
provision of any Letter of Credit Application shall be inconsistent with
any provision of this Credit Agreement, then the provisions of this Credit
Agreement shall, to the extent of any such inconsistency, govern.
5.1.3. Terms of Letters of Credit. Each Letter of Credit issued, extended or
renewed hereunder shall, among other things, (i) provide for the payment of
sight drafts for honor thereunder when presented in accordance with the
terms thereof and when accompanied by the documents described therein, and
(ii) have an expiry date no later than the date which is fourteen (14) days
(or, if the Letter of Credit is confirmed by a confirmer or otherwise
provides for one or more nominated persons, forty-five (45) days) prior to
the Revolving Credit Loan Maturity Date. Each Letter of Credit so issued,
extended or renewed shall be subject to the Uniform Customs.
5.1.4. Reimbursement Obligations of Banks. Each Bank severally agrees that it
shall be absolutely liable, without regard to the occurrence of any Default
or Event of Default or any other
condition precedent whatsoever, to the extent of such Bank's Revolving Credit
Commitment Percentage, to reimburse the Issuing Bank on demand for the
amount of each draft paid by the Issuing Bank under each Letter of Credit
to the extent that such amount is not reimbursed by the Borrower pursuant
to ss.5.2 (such agreement for a Bank being called herein the "Letter of
Credit Participation" of such Bank).
5.1.5. Participations of Banks. Each such payment made by a Bank shall be
treated as the purchase by such Bank of a participating interest in the
Borrower's Reimbursement Obligation underss.5.2 in an amount equal to such
payment. Each Bank shall share in accordance with its participating
interest in any interest which accrues pursuant to ss.5.2.
5.2. Reimbursement Obligation of the Borrower. In order to induce the
Issuing Bank to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Administrative Agent, for the account of the Issuing Bank or (as the case may
be) the Banks, with respect to each Letter of Credit issued, extended or renewed
by the Issuing Bank hereunder,
(a) except as otherwise expressly provided in ss.5.2(b) and
(c), on each date that any draft presented under such Letter of Credit
is honored by the Issuing Bank, or the Issuing Bank otherwise makes a
payment with respect thereto, (i) the amount paid by the Issuing Bank
under or with respect to such Letter of Credit, and (ii) the amount of
any taxes, fees, charges or other costs and expenses whatsoever
incurred by the Issuing Bank or any other Bank in connection with any
payment made by the Issuing Bank or any other Bank under, or with
respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total
Revolving Credit Commitment to an amount less than the Maximum Drawing
Amount, an amount equal to such difference, which amount shall be held
by the Issuing Bank for the benefit of the Banks and the Issuing Bank
as cash collateral for all Obligations, and
(c) upon the termination of the Total Revolving Credit
Commitment, or the acceleration of the Reimbursement Obligations with
respect to all Letters of Credit in accordance with ss.16, an amount
equal to the then Maximum Drawing Amount on all Letters of Credit,
which amount shall be held by the Issuing Bank for the benefit of the
Banks and the Issuing Bank as cash collateral for all Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Head Office in immediately available funds and shall be
promptly remitted by the Agent to the Issuing Bank or such other Bank entitled
thereto. Interest on any and all amounts remaining unpaid by the Borrower under
this ss.5.2 at any time from the date such amounts become due and payable
(whether as stated in this ss.5.2, by acceleration or otherwise) until payment
in full (whether before or after judgment) shall be payable to the
Administrative Agent, for the accounts of the Issuing Bank and the other Banks,
on demand at the rate specified in ss.8.9 for overdue principal on the Revolving
Credit Loans.
5.3. Letter of Credit Payments. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the Issuing
Bank shall notify the Borrower of the date and amount of the draft presented or
demand for payment and of the date and time when it expects to pay such draft or
honor such demand for payment. If the Borrower fails to reimburse the Issuing
Bank as provided in ss.5.2 on or before the date that such draft is paid or
other payment is made by the Issuing Bank, the Issuing Bank may at any time
thereafter notify the Banks of the amount of any such Unpaid Reimbursement
Obligation. No later than 3:00 p.m. (New York time) on the Business Day next
following the receipt of such notice, each Bank shall make available to the
Administrative Agent, at the Administrative Agent's Head Office, in immediately
available funds, and the Administrative Agent shall promptly forward the same to
the Issuing Bank, such Bank's Revolving Credit Commitment Percentage of such
Unpaid Reimbursement Obligation, together with an amount equal to the product of
(i) the average, computed for the period referred to in clause (iii) below, of
the weighted average interest rate paid by the Issuing Bank for federal funds
acquired by the Issuing Bank during each day included in such period, times (ii)
the amount equal to such Bank's Revolving Credit Commitment Percentage of such
Unpaid Reimbursement Obligation, times (iii) a fraction, the numerator of which
is the number of days that elapse from and including the date the Issuing Bank
paid the draft presented for honor or otherwise made payment to the date on
which such Bank's Revolving Credit Commitment Percentage of such Unpaid
Reimbursement obligation shall become immediately available to the Issuing Bank,
and the denominator of which is 360. The responsibility of the Issuing Bank to
the Borrower and the Banks shall be only to determine that the documents
(including each draft) delivered under each Letter of Credit in connection with
such presentment shall be in conformity in all material respects with such
Letter of Credit.
5.4. Obligations Absolute. The Borrower's obligations under this ss.5
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Agents, the Issuing Bank,
any other Bank or any beneficiary of a Letter of Credit. The Borrower further
agrees with the Agents, the Issuing Bank, and the other Banks that the Agents,
the Issuing
Bank, and the other Banks shall not be responsible for, and the Borrower's
Reimbursement Obligations under ss.5.2 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among the Borrower, the
beneficiary of any Letter of Credit or any financing institution or other party
to which any Letter of Credit may be transferred or any claims or defenses
whatsoever of the Borrower against the beneficiary of any Letter of Credit or
any such transferee. The Agents, the Issuing Bank, and the other Banks shall not
be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit. The Borrower agrees that any action taken
or omitted by the Agents, the Issuing Bank, or any other Bank under or in
connection with each Letter of Credit and the related drafts and documents, if
done in good faith, shall be binding upon the Borrower and shall not result in
any liability on the part of the Agents, the Issuing Bank, or any other Bank to
the Borrower.
5.5. Reliance by Issuer. To the extent not inconsistent with ss.5.4,
the Issuing Bank shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document believed by it 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, independent accountants and
other experts selected by the Issuing Bank. The Issuing Bank shall be fully
justified in failing or refusing to take any action under this Credit Agreement
unless it shall first have received such advice or concurrence of the Required
Banks as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Banks against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Issuing Bank shall in all cases be fully protected in acting, or in
refraining from acting, under this Credit Agreement in accordance with a request
of the Required Banks, and such request and any action taken or failure to act
pursuant thereto shall be binding upon the Banks and all future holders of the
Revolving Credit Notes or of a Letter of Credit Participation.
5.6. Letter of Credit Fees. The Borrower shall, on the last day of each
calendar quarter, pay a fee (in each case, a "Letter of Credit Fee") to the
Administrative Agent, for the pro rata accounts of the Banks in accordance with
their Revolving Credit Commitment Percentages, in an amount equal to the
Applicable Margin then applicable to Eurodollar Rate Loans on the average daily
Maximum Drawing Amount of all Letters of Credit outstanding during such quarter.
The Borrower shall also, on the last day of each calendar quarter, pay to the
Administrative Agent, for the account of the Issuing Bank, a fee (in each case,
a "Fronting Fee") in an amount equal to one-eighth of one percent (1/8%) on the
average daily Maximum Drawing Amount of all Letters of Credit outstanding during
such quarter. In respect of each Letter of Credit, the Borrower shall also pay
to the Issuing Bank, for the Issuing Bank's own account, at such other time or
times as such charges are customarily made by the Issuing Bank, the Issuing
Bank's customary issuance, amendment, negotiation or document examination and
other administrative fees as in effect from time to time.
6. GUARANTY.
6.1. Guaranty of Payment and Performance. Each of the Guarantors and
the Borrower is a member of a group of interrelated and interdependent
corporations, the success of any one of which is dependent upon the success of
the others. Each of the Guarantors expects to receive substantial direct and
indirect benefits from the extensions of credit to the Borrower hereunder (which
benefits are hereby acknowledged). In consideration thereof, each of the
Guarantors hereby jointly and severally guarantees to the Agents and the Banks,
the full and punctual payment when due (whether at stated maturity, by required
pre-payment, by acceleration or otherwise), as well as the performance, of all
of the Obligations including all such which would become due but for the
operation of the automatic stay pursuant to ss.362(a) of the Federal Bankruptcy
Code and the operation of ss.ss.502(b) and 506(b) of the Federal Bankruptcy
Code. Each of the Guarantors is accepting joint and several liability hereunder
in consideration of the other Guarantors accepting joint and several liability
hereunder. This Guaranty is an absolute, unconditional and continuing guaranty
of the full and punctual payment and performance of all of the Obligations and
not of their collectability only and is in no way conditioned upon any
requirement that the Agents or any Bank first attempt to collect any of the
Obligations from the Borrower or resort to any collateral security or other
means of obtaining payment. Should the Borrower default in the payment or
performance of any of the Obligations, the obligations of the Guarantors
hereunder with respect to such Obligations in default shall, upon demand by the
Administrative Agent, become immediately due and payable to the Administrative
Agent, for the benefit of the Banks and the Agents, without demand or notice of
any nature, all of which are expressly waived by each of the Guarantors.
Payments by the Guarantors hereunder may be required by the Administrative Agent
on any number of occasions. All payments by any of the Guarantors hereunder
shall be made to the Administrative Agent, in the manner and at the place of
payment specified therefor in ss.8.1.1 hereof, for the account of the Banks and
the Agents.
6.2. Guarantors' Agreement to Pay Enforcement Costs, etc. Each of the
Guarantors further jointly and severally agrees, as the principal obligor and
not as a guarantor only, to pay to the Administrative Agent, on demand, all
reasonable costs and expenses (including court costs and reasonable legal
expenses, including the allocated cost of staff counsel) incurred or expended by
any Agent or any Bank in connection with the Obligations, this Guaranty and the
enforcement thereof, together with interest on amounts recoverable under this
ss.6 from the time when such amounts become due until payment, whether before or
after judgment, at the rate of interest for overdue principal set forth in
ss.8.9 hereof, provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall be reduced
to such maximum permitted amount.
6.3. Waivers by the Guarantors; Banks' Freedom to Act. Each of the
Guarantors agrees that the Obligations will be paid and performed strictly in
accordance with their respective terms, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Agents or any Bank with respect thereto. Each of the
Guarantors waives promptness, diligence, presentment, demand, protest, notice of
acceptance, notice of any Obligations incurred and all other notices of any
kind, all defenses which may be available by virtue of any valuation, stay,
moratorium law or other
similar law now or hereafter in effect, any right to require the marshalling of
assets of the Borrower or any other entity or other Person primarily or
secondarily liable with respect to any of the Obligations, and all suretyship
defenses generally. Without limiting the generality of the foregoing, each of
the Guarantors agrees to the provisions of any instrument evidencing, securing
or otherwise executed in connection with any Obligation and agrees that the
obligations of such Guarantor hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by (i) the failure of the Agents or any
Bank to assert any claim or demand or to enforce any right or remedy against the
Borrower or any other Person primarily or secondarily liable with respect to any
of the Obligations; (ii) any extensions, compromise, refinancing, consolidation
or renewals of any Obligation; (iii) any change in the time, place or manner of
payment of any of the Obligations or any rescissions, waivers, compromise,
refinancing, consolidation or other amendments or modifications of any of the
terms or provisions of this Credit Agreement, the other Loan Documents or any
other agreement evidencing, securing or otherwise executed in connection with
any of the Obligations; (iv) the addition, substitution or release of any entity
or other Person primarily or secondarily liable for any Obligation; (v) the
adequacy of any rights which the Agents or any Bank may ave against any
collateral security or other means of obtaining repayment of any of the
Obligations; (vi) the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve any
rights which the Agents or any Bank might have in such collateral security or
the substitution, exchange, surrender, release, loss or destruction of any such
collateral security; or (vii) any other act or omission which might in any
manner or to any extent vary the risk of such Guarantor or otherwise operate as
a release or discharge of such Guarantor, all of which may be done without
notice to such Guarantor. To the fullest extent permitted by law, each of the
Guarantors hereby expressly waives any and all rights or defenses arising by
reason of (A) any "one action" or "anti-deficiency" law which would otherwise
prevent the Agents or any Bank from bringing any action, including any claim for
a deficiency, or exercising any other right or remedy (including any right of
set-off), against such Guarantor before or after the Agent's or such Bank's
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (B) any other law which in any other
way would otherwise require any election of remedies by the Agents or any Bank.
6.4. Unenforceability of Obligations Against Borrower. If for any
reason the Borrower has no legal existence or is under no legal obligation to
discharge any of the Obligations, or if any of the Obligations have become
irrecoverable from the Borrower by reason of the Borrower's insolvency,
bankruptcy or reorganization or by other operation of law or for any other
reason, this Guaranty shall nevertheless be binding on each of the Guarantors to
the same extent as if each such Guarantor at all times had been the principal
obligor on all such Obligations. In the event that acceleration of the time for
payment of any of the Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of this Credit Agreement, the
other Loan Documents or any other agreement evidencing, securing or otherwise
executed in connection with any Obligation shall be immediately due and payable
by each of the Guarantors.
6.5. Subrogation; Subordination.
6.5.1. Postponement of Rights Against Borrower. Until the
final payment and performance in full in cash of all of the Obligations
and the termination of the Commitments: none of the Guarantors shall
exercise any rights against the Borrower arising as a result of payment
by each such Guarantor hereunder, by way of subrogation, reimbursement,
restitution, contribution or otherwise, and none of the Guarantors will
prove any claim in competition with the Agents or any Bank in respect
of any payment hereunder in any bankruptcy, insolvency or
reorganization case or proceedings of any nature; none of the
Guarantors will claim any setoff, recoupment or counterclaim against
the Borrower in respect of any liability of any such Guarantor to the
Borrower; and each of the Guarantors waives any benefit of and any
right to participate in any collateral security which may be held by
the Agents or any Bank.
6.5.2. Subordination. The payment of any amounts due with
respect to any indebtedness of the Borrower for money borrowed or
credit received now or hereafter owed to any of the Guarantors is
hereby subordinated to the prior payment in full in cash of all of the
Obligations. Each of the Guarantors agrees that, after the occurrence
of any default in the payment or performance of any of the Obligations,
such Guarantor will not demand, xxx for or otherwise attempt to collect
any such indebtedness of the Borrower to such Guarantor until all of
the Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, any of the Guarantors shall collect, enforce or
receive any amounts in respect of such indebtedness while any
Obligations are still outstanding, such amounts shall be collected,
enforced and received by such Guarantor as trustee for the Banks and
the Agents and be paid over to the Administrative Agent, for the
benefit of the Banks and the Agents, on account of the Obligations
without affecting in any manner the liability of the Guarantors under
the other provisions of this Guaranty.
6.5.3. Provisions Supplemental. The provisions of this ss.6.5
shall be supplemental to and not in derogation of any rights and
remedies of the Banks and the Agents under any separate subordination
agreement which an Agent may at any time and from time to time enter
into with any of the Guarantors for the benefit of the Banks and the
Agents.
6.6. Further Assurances. Each of the Guarantors agrees that it will
from time to time, at the request of the Agents, do all such things and execute
all such documents as the Agents may consider necessary or desirable to give
full effect to this Guaranty and to perfect and preserve the rights and powers
of the Banks and the Agents hereunder. Each of the Guarantors acknowledges and
confirms that such Guarantor itself has established its own adequate means of
obtaining from the Borrower on a continuing basis all information desired by
such Guarantor concerning the financial condition of the Borrower and that such
Guarantor will look to the Borrower and not to the Agents or any Bank in order
for such Guarantor to keep adequately informed of changes in the Borrower's
financial condition.
6.7. Reinstatement. Notwithstanding any termination of this Guaranty,
this Guaranty shall continue to be effective or be reinstated, if at any time
any payment made or value received with respect to any Obligation is rescinded
or must otherwise be returned by an
Agent or any Bank upon the insolvency, bankruptcy or reorganization of the
Borrower or any Guarantor, or otherwise, all as though such payment had not been
made or value received.
6.8. Successors and Assigns. This Guaranty shall be binding upon each
of the Guarantors, its successors and assigns, and shall inure to the benefit of
the Agents and the Banks and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing sentence, each Bank
may, in accordance with the provisions of ss.22, assign or otherwise transfer
this Credit Agreement, the other Loan Documents or any other agreement or note
held by it evidencing, securing or otherwise executed in connection with the
Obligations, or sell participations in any interest therein, to any other
Person, and such other Person shall thereupon become vested, to the extent set
forth in the agreement evidencing such assignment, transfer or participation,
with all the rights in respect thereof granted to such Bank herein. None of the
Guarantors may assign any of its obligations hereunder.
6.9. Severability. It is the intention and agreement of the Guarantors,
the Agents and the Banks that the obligations of the Guarantors under this
Guaranty shall be valid and enforceable against the Guarantors to the maximum
extent permitted by applicable law. Accordingly, if any provision of this
Guaranty creating any obligation of any Guarantor shall be declared to be
invalid or unenforceable in any respect or to any extent, it is the stated
intention and agreement of the Guarantors, the Agents and the Banks that any
balance of the obligation created by such provision and all other obligations of
such Guarantor to the Agent and the Banks created by other provisions of this
Guaranty shall remain valid and enforceable. Likewise, if by final order, a
court of competent jurisdiction shall declare any sums which the Agents or the
Banks may be otherwise entitled to collect from the Guarantors under this
Guaranty to be in excess of those permitted under any law (including any federal
or state fraudulent conveyance or like statute or rule of law) applicable to the
obligations under this Guaranty, it is the stated intention and agreement of the
Guarantors, the Agents and the Banks that all sums not in excess of those
permitted under such applicable law shall remain fully collectible by the Agents
and the Banks from the Guarantors.
6.10. Limitation on Guaranty. Notwithstanding anything else set forth
in this Section 6, it is understood and agreed by the Borrower, the Guarantors,
the Agents and the Banks that the maximum liability of Seabulk Transmarine
Partnership, Ltd. under the Guaranty shall be limited to sixty-six and
two-thirds percent (66-2/3%) of the fair market value, from time to time, of the
United States Flag Vessel The Seabulk America, Official No. 961357.
7. FEES.
7.1. Agents' Fees. The Borrower shall pay to the Administrative Agent
and the Documentation Agent certain fees as provided in the Fee Letter.
8. CERTAIN GENERAL PROVISIONS.
8.1. Funds for Payments.
8.1.1. Payments to Administrative Agent. All payments of principal,
interest, commitment fees, Letter of Credit Fees, Fronting Fees, and
any other amounts due hereunder or under any of the other Loan
Documents shall be made to the Administrative Agent, for the respective
accounts of the Banks and the Agents, at the Administrative Agent's
Head Office or at such other location in the New York, New York area
that the Administrative Agent may from time to time designate, in each
case in immediately available funds.
8.1.2. No Offset, etc. All payments by the Borrower hereunder
and under any of the other Loan Documents shall be made without setoff
or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein
unless the Borrower is compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Borrower with
respect to any amount payable by it hereunder or under any of the other
Loan Documents, the Borrower will pay to the Administrative Agent, for
the account of the Banks or (as the case may be) the Agents, on the
date on which such amount is due and payable hereunder or under such
other Loan Document, such additional amount in Dollars as shall be
necessary to enable the Banks or the Agents to receive the same net
amount which the Banks or the Agents would have received on such due
date had no such obligation been imposed upon the Borrower. The
Borrower will deliver promptly to the Administrative Agent certificates
or other valid vouchers for all taxes or other charges deducted from or
paid with respect to payments made by the Borrower hereunder or under
such other Loan Document.
8.1.3. Receipt of Funds By Administrative Agent.The Borrower
agrees that, on each day on which a payment is due hereunder with
respect to any Loan or Letter of Credit or under any Note, it will
deliver to the Administrative Agent, not later than 12:00 noon (New
York time), the amount so due on such day.
8.2. Computations. All computations of interest on the Base Rate Loans
and of commitment fees, Letter of Credit Fees, Fronting Fees, and other fees
hereunder shall be based on a 365/366-day year and paid for the actual number of
days elapsed. All computations of interest on the Eurodollar Rate Loans shall be
based on a 360-day year and paid for the actual number of days elapsed. Except
as otherwise provided in the definition of the term "Interest Period" with
respect to Eurodollar Rate Loans, whenever a payment hereunder or under any of
the other Loan Documents becomes due on a day that is not a Business Day, the
due date for such payment shall be extended to the next succeeding Business Day,
and interest shall accrue during such extension. The outstanding amount of the
Loans as reflected on the Revolving Credit Note Records and Term Note Records
from time to time shall be considered correct and binding on the Borrower unless
within five (5) Business Days after receipt of any notice by the Administrative
Agent or any of the Banks of such outstanding amount, the Administrative Agent
or such Bank shall notify the Borrower to the contrary.
8.3. Inability to Determine Eurodollar Rate. In the event, prior to
the commencement
of any Interest Period relating to any Eurodollar Rate Loan, the Administrative
Agent shall determine or be notified by the Required Banks that adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate that would
otherwise determine the rate of interest to be applicable to any Eurodollar Rate
Loan during any Interest Period, the Administrative Agent shall forthwith give
notice of such determination (which shall be conclusive and binding on the
Borrower and the Banks) to the Borrower and the Banks. In such event (i) any
Loan Request or Conversion Request with respect to Eurodollar Rate Loans shall
be automatically withdrawn and shall be deemed a request for Base Rate Loans,
(ii) each Eurodollar Rate Loan will automatically, on the last day of the then
current Interest Period relating thereto, become a Base Rate Loan, and (iii) the
obligations of the Banks to make Eurodollar Rate Loans shall be suspended until
the Administrative Agent or the Required Banks determines that the circumstances
giving rise to such suspension no longer exist, whereupon the Administrative
Agent or, as the case may be, the Administrative Agent upon the instruction of
the Required Banks, shall so notify the Borrower and the Banks.
8.4. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Borrower and the other Banks and thereupon (i) the
commitment of such Bank to make Eurodollar Rate Loans or convert Loans of
another Type to Eurodollar Rate Loans shall forthwith be suspended and (ii) such
Bank's Loans then outstanding as Eurodollar Rate Loans, if any, shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such Eurodollar Rate Loans or within such earlier period as
may be required by law. The Borrower hereby agrees promptly to pay the
Administrative Agent for the account of such Bank, upon demand by such Bank, any
additional amounts necessary to compensate such Bank for any costs incurred by
such Bank in making any conversion in accordance with this ss.8.4, including any
interest or fees payable by such Bank to lenders of funds obtained by it in
order to make or maintain its Eurodollar Rate Loans hereunder.
8.5. Additional Costs, etc. If any present or future applicable law,
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Administrative Agent by any central bank or
other fiscal, monetary or other authority (whether or not having the force of
law), shall:
(a) subject any Bank or the Administrative Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to
this Credit Agreement, any Letter of Credit, the other Loan Documents, such
Bank's Commitment or the Loans (other than taxes based upon or measured by
the income or profits of such Bank or the Administrative Agent), or
(b) materially change the basis of taxation (except for changes in taxes on
income or profits) of payments to any Bank of the principal of or the
interest on any
Loans or any other amounts payable to any Bank or the Administrative
Agent under this Credit Agreement or any of the other Loan Documents,
or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or letters of credit
issued by, or commitments of an office of any Bank, or
(d) impose on any Bank or the Administrative Agent any other conditions or
requirements with respect to this Credit Agreement, any Letter of Credit,
the other Loan Documents, the Loans, such Bank's Commitment, or any class
of loans, letters of credit or commitments of which any of the Loans or
such Bank's Commitment forms a part, and the result of any of the foregoing
is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of
the Loans or such Bank's Commitment or any Letter of Credit,
or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation, or other amount payable to such Bank
or the Administrative Agent hereunder on account of such
Bank's Commitment, any of the Loans or any Letter of Credit,
or
(iii) to require such Bank or the Administrative
Agent to make any payment or to forego any interest,
Reimbursement Obligation, or other sum payable hereunder, the
amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by such Bank or the
Administrative Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Bank or
(as the case may be) the Administrative Agent at any time and from time to time
and as often as the occasion therefor may arise, pay to such Bank or the
Administrative Agent such additional amounts as will be sufficient to compensate
such Bank or the Administrative Agent for such additional cost, reduction,
payment or foregone interest or other sum.
8.6. Capital Adequacy. If after the date hereof any Bank or the
Administrative Agent determines that (i) the adoption of or change in any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements for banks or bank
holding companies or any change in the interpretation or application thereof by
a court or governmental authority with appropriate jurisdiction, or (ii)
compliance by such Bank or the Administrative Agent or any corporation
controlling such Bank or the Administrative Agent with any law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) of any such entity regarding
capital adequacy, has the effect of reducing the return on such Bank's or the
Administrative Agent's commitment with respect to any Loans to a level below
that which such Bank or the Administrative Agent could have achieved but for
such adoption, change or compliance (taking into consideration such Bank's or
the Administrative Agent's then existing policies with respect to capital
adequacy and assuming full utilization of such entity's capital) by any amount
deemed by such Bank or (as the case may be) the Administrative Agent to be
material, then such Bank or the Administrative Agent may notify the Borrower of
such fact. To the extent that the amount of such reduction in the return on
capital is not reflected in the Base Rate, the Borrower agrees to pay such Bank
or (as the case may be) the Administrative Agent for the amount of such
reduction in the return on capital as and when such reduction is determined upon
presentation by such Bank or (as the case may be) the Administrative Agent of a
certificate in accordance with ss.8.7 hereof. Each Bank shall allocate such cost
increases among its customers in good faith and on an equitable basis.
8.7. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.ss.8.5 or 8.6 and a brief explanation of such amounts
which are due, submitted by any Bank or the Administrative Agent to the
Borrower, shall be conclusive, absent manifest error, that such amounts are due
and owing.
8.8. Indemnity. The Borrower agrees to indemnify each Bank and to hold
each Bank harmless from and against any loss, cost or expense (including loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (i)
default by the Borrower in payment of the principal amount of or any interest on
any Eurodollar Rate Loans as and when due and payable, including any such loss
or expense arising from interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain its Eurodollar Rate Loans, (ii)
default by the Borrower in making a borrowing or conversion after the Borrower
has given (or is deemed to have given) a Loan Request, notice (in the case of
all or any portion of the Term Loan pursuant to ss.4.5) or a Conversion Request
relating thereto in accordance with ss.2.6 or ss.2.7 or ss.4.5 or (iii) the
making of any payment of a Eurodollar Rate Loan or the making of any conversion
of any such Loan to a Base Rate Loan on a day that is not the last day of the
applicable Interest Period with respect thereto, including interest or fees
payable by such Bank to lenders of funds obtained by it in order to maintain any
such Loans.
8.9. Interest After Default.
8.9.1. Overdue Amounts. Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest compounded monthly and payable on demand
at a rate per annum equal to two percent (2%) above the Base Rate plus
the Applicable Margin until such amount shall be paid in full (after as
well as before judgment).
8.9.2. Amounts Not Overdue. During the continuance of a
Default or an Event of Default the principal of the Revolving Credit
Loans and the Term Loan not overdue shall, until such Default or Event
of Default has been cured or remedied or such Default or Event of
Default has been waived by the Required Banks pursuant to
ss.29, bear interest at a rate per annum equal to the greater of (i)
two percent (2%) above the rate of interest otherwise applicable to
such Loans pursuant to ss.2.5 or ss.4.5, as the case may be, and (ii)
the rate of interest applicable to overdue principal pursuant to
ss.8.9.1.
8.10. Replacement of Banks. If any Bank (an "Affected Bank") (i) makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to ss.ss.8.5 or 8.6, (ii) is unable to make or maintain
Eurodollar Rate Loans as a result of a condition described in ss.8.4 or (iii)
defaults in its obligation to make Loans in accordance with the terms of this
Agreement (such Bank being referred to as a "Defaulting Bank"), the Borrower
may, within ninety (90) days of receipt of such demand, notice (or the
occurrence of such other event causing the Borrower to be required to pay such
compensation or causing ss.8.4 to be applicable), or default, as the case may
be, by notice (a "Replacement Notice") in writing to the Agents and such
Affected Bank (A) request the Affected Bank to cooperate with the Borrower in
obtaining a replacement bank satisfactory to the Agents and the Borrower (the
"Replacement Bank"); (B) request the non-Affected Banks to acquire and assume
all of the Affected Bank's Loans, Revolving Credit Commitment and Term Loan
Commitment as provided herein, but none of such Banks shall be under an
obligation to do so; or (C) designate a Replacement Bank reasonably satisfactory
to the Agents. If any satisfactory Replacement Bank shall be obtained, and/or if
any one or more of the non-Affected Banks shall agree to acquire and assume all
of the Affected Bank's Loans and Commitments, then such Affected Bank shall
assign, in accordance with ss.22, all of its Commitments, Loans, Notes and other
rights and obligations under this Agreement and all other Loan Documents to such
Replacement Bank or non-Affected Banks, as the case may be, in exchange for
payment of the principal amount so assigned and all interest and fees accrued on
the amount so assigned, plus all other Obligations then due and payable to the
Affected Bank; provided, however, that (i) such assignment shall be without
recourse, representation or warranty and shall be on terms and conditions
reasonably satisfactory to such Affected Bank and such Replacement Bank and/or
non-Affected Banks, as the case may be, (ii) prior to any such assignment, the
Borrower shall have paid to such Affected Bank all amounts properly demanded and
unreimbursed under ss.ss.8.5, 8.6 and 8.7, and (iii) no such assignment shall be
effective (A) while any Default or Event of Default shall have occurred and be
continuing or (B) until the Borrower shall have paid the Administrative Agent an
administration fee of $3,000 if such Replacement Bank is not already a Bank
under this Credit Agreement. Upon the effective date of such assignment, the
Borrower shall issue replacement Notes to such Replacement Bank and/or
non-Affected Banks, as the case may be, and such institution shall become a
"Bank" for all purposes under this Agreement and the other Loan Documents.
9. COLLATERAL SECURITY AND GUARANTIES.
(a) The Obligations shall be guaranteed pursuant to the terms of the
Guaranty. The Borrower shall notify the Agents of the acquisition or formation
of any new Subsidiary not less than five (5) Business Days prior to such
acquisition or formation. The Borrower shall, at the request of either Agent,
promptly, and in any event within ten (10) Business Days of such request, cause
each of its Subsidiaries which is not a Guarantor (a "Non-Guarantor Subsidiary")
to (i) execute and deliver to each of the Banks and the Agents a guaranty which
is substantially in the form of the Guaranty and which is satisfactory to the
Banks and the Agents in all respects and (ii) execute and deliver to each of the
Banks and the Agents all other documents and instruments, including, without
limitation, corporate authority documents and legal opinions, as the Agents may
reasonably request in connection with the delivery of such guaranty; provided,
that the provisions of this ss.9 shall not apply to (i) Seabulk Chemical
Carriers, Inc., so long as it shall be contractually prohibited from delivering
a guaranty of the Obligations or (ii) Seabulk Offshore Chartering, Inc..
(b) The Obligations shall, to the extent required by ss.13.4 hereof, be
secured by a first priority perfected preferred mortgage and security interest
in favor of the Documentation Agent, for the benefit of the Banks and the
Agents, (i) in each of the Vessels listed on Schedule 10.19 and on additional
Vessels as may be required by ss.13.4, (ii) in certain other assets of the
Borrower and its Subsidiaries relating to such Vessels, including, without
limitation, accounts, chattel paper, contract rights, insurance proceeds,
inventory, equipment, general intangibles and goods, whether now owned or
hereafter acquired, and (iii) a first priority perfected pledge, in favor of the
Documentation Agent, for the benefit of the Banks and the Agent, of the capital
stock or other equity interests of each Subsidiary which owns a Vessel which is
subject to a Vessel Mortgage.
10. REPRESENTATIONS AND WARRANTIES.
The Borrower and each Guarantor represents and warrants to the Banks
and the Agents as follows:
10.1. Corporate Authority.
10.1.1. Incorporation; Good Standing. Each of the Borrower and
its Subsidiaries (i) is a corporation or limited partnership, as the
case may be, duly organized, validly existing and in good standing
under the laws of its state of incorporation or organization, (ii) has
all requisite corporate or limited partnership power to own its
property and conduct its business as now conducted and as presently
contemplated, and (iii) is in good standing as a foreign corporation or
a foreign limited partnership, as the case may be, and is duly
authorized to do business in each jurisdiction where such qualification
is necessary except where a failure to be so qualified would not have a
materially adverse effect on the business, assets or financial
condition of the Borrower or such Subsidiary.
10.1.2. Authorization. The execution, delivery and performance
of this Credit Agreement and the other Loan Documents to which the
Borrower or any of its Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby (i) are within the
corporate or limited partnership, as the case may be, authority of such
Person, (ii) have been duly authorized by all necessary corporate or
limited partnership, as the case may be, proceedings, (iii) do not
conflict with or result in any breach or contravention of any provision
of law, statute, rule or regulation to which the Borrower or any of its
Subsidiaries is subject or any judgment, order, writ, injunction,
license or permit applicable to the Borrower or any of its Subsidiaries
and
(iv) do not conflict with any provision of the corporate charter,
bylaws, or partnership agreement of, or any agreement or other
instrument binding upon, the Borrower or any of its Subsidiaries.
10.1.3. Enforceability. The execution and delivery of this
Credit Agreement and the other Loan Documents to which the Borrower or
any of its Subsidiaries is or is to become a party will result in valid
and legally binding obligations of such Person enforceable against it
in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent
that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
10.2. Governmental Approvals. The execution, delivery and performance
by the Borrower and any of its Subsidiaries of this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Subsidiaries is or is
to become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those already obtained.
10.3. Title to Properties; Leases. Except as indicated on Schedule 10.3
hereto, the Borrower and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
10.4. Fiscal Year; Financial Statements; Projections.
10.4.1. Fiscal Year, Fiscal Quarters. The Borrower and each of
its Subsidiaries has a fiscal year which is the twelve months ending on
December 31 of each calendar year and fiscal quarters ending on March
31, June 30, September 30, and December 31 of each calendar year.
10.4.2. Financial Statements. There has been furnished to each
of the Banks a consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, and a consolidated statement
of income of the Borrower and its Subsidiaries for the fiscal year then
ended, certified by Ernst & Young LLP. Such balance sheet and statement
of income have been prepared in accordance with generally accepted
accounting principles and fairly present the financial condition of the
Borrower as at the close of business on the date thereof and the
results of operations for the fiscal year then ended. There are no
contingent liabilities of the Borrower or any of its Subsidiaries as of
such date involving material amounts, known to the officers of the
Borrower, which were not disclosed in such balance sheet and the notes
related thereto.
10.4.3. Projections. There has been furnished to each of the
Banks the financial forecasts for the Borrower and its Subsidiaries for
the fiscal years 1998 through 2002, dated February 2, 1998 (the
"Projections"). The Projections represent the good faith estimates of
the officers of the Borrower for the periods covered thereby and the
officers of the Borrower know of no material misstatements in or
omissions from such Projections.
10.5. No Material Changes, etc.; Solvency.
(a) Since the Balance Sheet Date there has occurred no materially
adverse change in the condition (financial or otherwise), operations,
performance, properties, or prospects of the Borrower and its Subsidiaries as
shown on or reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, or the consolidated statement of
income for the fiscal year then ended, other than changes in the ordinary course
of business that have not had any materially adverse effect either individually
or in the aggregate on the business or financial condition of the Borrower or
any of its Subsidiaries. Since the Balance Sheet Date, the Borrower has not made
any Distribution, except as permitted under ss.12.4.
(b) The Borrower and each of the Guarantors (before and after giving
effect to the transactions contemplated by this Agreement and the other Loan
Documents) (i) is solvent, (ii) has assets having a fair value in excess of its
liabilities, (iii) has assets having a fair value in excess of the amount
required to pay its liabilities on existing debts as such debts become absolute
and matured, and (iv) has, and expects to continue to have, access to adequate
capital for the conduct of its business and the ability to pay its debts from
time to time incurred in connection with the operation of its business as such
debts mature.
10.6. Franchises, Patents, Copyrights, etc. Each of the Borrower and
its Subsidiaries possesses all franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect of the foregoing,
adequate for the conduct of its business substantially as now conducted without
known conflict with any rights of others.
10.7. Litigation. Except as set forth in Schedule 10.7 hereto, there
are no actions, suits, proceedings or investigations of any kind pending or
threatened against the Borrower or any of its Subsidiaries before any court,
tribunal or administrative agency or board that, if adversely determined, might,
either in any case or in the aggregate, materially adversely affect the
properties, assets, financial condition or business of the Borrower and its
Subsidiaries or materially impair the right of the Borrower and its
Subsidiaries, considered as a whole, to carry on business substantially as now
conducted by them, or result in any substantial liability not adequately covered
by insurance, or for which adequate reserves are not maintained on the
consolidated balance sheet of the Borrower and its Subsidiaries, or which
question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
10.8. No Materially Adverse Contracts, etc. Except as disclosed on
Schedule 10.8, neither the Borrower nor any of its Subsidiaries is subject to
any charter, corporate or other
legal restriction, or any judgment, decree, order, rule or regulation that has
or is expected in the future to have a materially adverse effect on the
business, assets or financial condition of the Borrower or any of its
Subsidiaries. Neither the Borrower nor any of its Subsidiaries is a party to any
contract or agreement that has or is expected, in the judgment of the Borrower's
officers, to have any materially adverse effect on the business of the Borrower
or any of its Subsidiaries.
10.9. Compliance with Other Instruments, Laws, etc. Neither the
Borrower nor any of its Subsidiaries is in violation of any provision of its
charter documents, bylaws, or any agreement or instrument to which it may be
subject or by which it or any of its properties may be bound or any decree,
order, judgment, statute, license, rule or regulation, in any of the foregoing
cases in a manner that could result in the imposition of substantial penalties
or materially and adversely affect the financial condition, properties or
business of the Borrower or any of its Subsidiaries.
10.10. Tax Status. The Borrower and its Subsidiaries (i) have made or
filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which any of them is subject, (ii)
have paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (iii) have set
aside on their books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers of the
Borrower know of no basis for any such claim.
10.11. No Event of Default. No Default or Event of Default has occurred
and is continuing.
10.12. Holding Company and Investment Company Acts. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935; nor is
it an "investment company", or an "affiliated company" or a "principal
underwriter" of an "investment company", as such terms are defined in the
Investment Company Act of 1940.
10.13. Absence of Financing Statements, etc. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage, vessel mortgage or other document filed or
recorded with any filing records, registry or other public office, that purports
to cover, affect or give notice of any present or possible future lien on, or
security interest in, any assets or property of the Borrower or any of its
Subsidiaries or any rights relating thereto.
10.14. Certain Transactions. Except for arm's length transactions
pursuant to which the Borrower or any of its Subsidiaries makes payments in the
ordinary course of business upon terms no less favorable than the Borrower or
such Subsidiary could obtain from third parties, none of the officers,
directors, or employees of the Borrower or any of its Subsidiaries
is presently a party to any transaction with the Borrower or any of its
Subsidiaries (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
10.15. Employee Benefit Plans.
10.15.1. In General. Each Employee Benefit Plan and each
Guaranteed Pension Plan has been maintained and operated in compliance
in all material respects with the provisions of ERISA and, to the
extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions and the
bonding of fiduciaries and other persons handling plan funds as
required by ss.412 of ERISA. The Borrower has heretofore delivered to
the Administrative Agent the most recently completed annual report,
Form 5500, with all required attachments, and actuarial statement
required to be submitted under ss.103(d) of ERISA, with respect to each
Guaranteed Pension Plan.
10.15.2. Terminability of Welfare Plans. No Employee Benefit
Plan, which is an employee welfare benefit plan within the meaning of
ss.3(1) or ss.3(2)(B) of ERISA, provides benefit coverage subsequent to
termination of employment, except as required by Title I, Part 6 of
ERISA or the applicable state insurance laws. The Borrower may
terminate each such Plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) in the discretion of
the Borrower without liability to any Person other than for claims
arising prior to termination.
10.15.3. Guaranteed Pension Plans. Each contribution required
to be made to a Guaranteed Pension Plan, whether required to be made to
avoid the incurrence of an accumulated funding deficiency, the notice
or lien provisions of ss.302(f) of ERISA, or otherwise, has been timely
made. No waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any Guaranteed
Pension Plan, and neither the Borrower nor any ERISA Affiliate is
obligated to or has posted security in connection with an amendment to
a Guaranteed Pension Plan pursuant to ss.307 of ERISA or ss.401(a)(29)
of the Code. No liability to the PBGC (other than required insurance
premiums, all of which have been paid) has been incurred by the
Borrower or any ERISA Affiliate with respect to any Guaranteed Pension
Plan and there has not been any ERISA Reportable Event (other than an
ERISA Reportable Event as to which the requirement of 30 days notice
has been waived), or any other event or condition which presents a
material risk of termination of any Guaranteed Pension Plan by the
PBGC. Based on the latest valuation of each Guaranteed Pension Plan
(which in each case occurred within twelve months of the date of this
representation), and on the actuarial methods and assumptions employed
for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of ss.4001 of ERISA did not
exceed the aggregate value of the
assets of all such Guaranteed Pension Plans, disregarding for this
purpose the benefit liabilities and assets of any Guaranteed Pension
Plan with assets in excess of benefit liabilities.
10.15.4. Multiemployer Plans. Neither the Borrower nor any
ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under
ss.4201 of ERISA or as a result of a sale of assets described in
ss.4204 of ERISA. Neither the Borrower nor any ERISA Affiliate has been
notified that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of ss.4241 or ss.4245 of ERISA or is at
risk of entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under
ss.4041A of ERISA.
10.16. Use of Proceeds.
10.16.1. General. The proceeds of the Loans shall be used to
refinance existing Indebtedness of the Borrower, for working capital and general
corporate purposes and to finance Permitted Acquisitions.
10.16.2. Regulations U and X. No portion of any Loan is to be
used for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221
and 224.
10.16.3. Ineligible Securities. No portion of the proceeds of
any Loan is to be used for the purpose of (a) knowingly purchasing, or
providing credit support for the purchase of, Ineligible Securities
from a Section 20 Subsidiary during any period in which such Section 20
Subsidiary makes a market in such Ineligible Securities, (b) knowingly
purchasing, or providing credit support for the purchase of, during the
underwriting or placement period and for thirty (30) days thereafter,
any Ineligible Securities being underwritten or privately placed by a
Section 20 Subsidiary, or (c) making, or providing credit support for
the making of, payments of principal or interest on Ineligible
Securities underwritten or privately placed by a Section 20 Subsidiary
and issued by or for the benefit of the Borrower or any Subsidiary or
other Affiliate of the Borrower.
10.17. Environmental Compliance. Except as set forth on Schedule 10.17
hereto, none of the Borrower, its Subsidiaries or any operator of the Real
Estate or any operations thereon is in violation, or alleged violation, of any
judgment, decree, order, law, license, rule or regulation pertaining to
environmental matters, including without limitation, those arising under the
Resource Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended, the Superfund
Amendments and Reauthorization Act of 1986, the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state or local
statute, regulation, ordinance, order or decree relating to health, safety or
the environment (hereinafter "Environmental Laws"), which
violation would have a material adverse effect on the environment or the
business, assets or financial condition of the Borrower or any of its
Subsidiaries.
10.18. Subsidiaries, etc. All Subsidiaries, direct and indirect, of the
Borrower are listed on Schedule 10.18 hereto. Except as set forth on Schedule
10.18 hereto, neither the Borrower nor any Subsidiary of the Borrower is engaged
in any joint venture or partnership with any other Person.
10.19. Concerning the Vessels. The name, official number, registered
owner, and jurisdiction of registration of each Vessel is set forth on Schedule
10.19 hereto. Each Vessel is operated in accordance with all applicable maritime
rules and regulations, including, without limitation, with respect to each
Vessel operated in the coastwise trade of the United States of America, the
Shipping Act of 1916, as amended and in effect, and the regulations promulgated
thereunder. Each Vessel is maintained and operated in compliance with all
applicable Environmental Laws.
10.20. Disclosure. None of this Credit Agreement or any of the other
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact (known to the Borrower or any of its Subsidiaries in the
case of any document or information not furnished by it or any of its
Subsidiaries) necessary in order to make the statements herein or therein not
misleading. There is no fact known to the Borrower or any of its Subsidiaries
which materially adversely affects, or which is reasonably likely in the future
to materially adversely affect, the business, assets, financial condition or
prospects of the Borrower or any of its Subsidiaries, exclusive of effects
resulting from changes in general economic conditions, legal standards or
regulatory conditions.
10.21. Perfection of Security Interest. All filings, assignments,
pledges and deposits of documents or instruments have been made and all other
actions have been taken that are necessary or advisable, under applicable law,
to establish and perfect the Documentation Agent's security interest in the
Collateral. The Collateral and the Documentation Agent's rights with respect to
the Collateral are not subject to any setoff, claims, withholdings, or other
defenses. The Borrower or a Guarantor party to one of the Security Documents is
the owner of the Collateral, free from any lien, security interest, encumbrance,
or any other claim or demand, except for Permitted Liens.
11. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS.
The Borrower and each of the Guarantors covenants and agrees that, so
long as any Loan, Reimbursement Obligation, Letter of Credit or Note is
outstanding or any Bank has any obligation to make any Loans and the Issuing
Bank has any obligation to issue, extend or renew any Letter of Credit:
11.1. Punctual Payment. The Borrower will duly and punctually pay or
cause to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Fronting Fees, the commitment fees,
the fees pursuant to ss.7 hereof and all other amounts provided for in this
Credit Agreement and the other Loan Documents to which
the Borrower or any of its Subsidiaries is a party, all in accordance with the
terms of this Credit Agreement and such other Loan Documents.
11.2. Maintenance of Office. The Borrower will, and will cause each of
its Subsidiaries to, maintain its chief executive office in Fort Lauderdale,
Florida, or at such other place in the United States of America as the Borrower
or such Subsidiary shall designate upon written notice to the Administrative
Agent, where notices, presentations and demands to or upon the Borrower or such
Subsidiary in respect of the Loan Documents to which the Borrower or such
Subsidiary is a party may be given or made. The Borrower will give the Agents
thirty days prior written notice of any change in the location of its, or any of
its Subsidiaries', chief executive office.
11.3. Records and Accounts. The Borrower will (i) keep, and cause each
of its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with generally
accepted accounting principles, (ii) maintain adequate accounts and reserves for
all taxes (including income taxes), depreciation, depletion, obsolescence and
amortization of its properties and the properties of its Subsidiaries,
contingencies, and other reserves, and (iii) at all times engage Ernst & Young
LLP or other independent certified public accountants satisfactory to the Agents
as the independent certified public accountants of the Borrower and its
Subsidiaries and will not permit more than thirty (30) days to elapse between
the cessation of such firm's (or any successor firm's) engagement as the
independent certified public accountants of the Borrower and its Subsidiaries
and the appointment in such capacity of a successor firm as shall be
satisfactory to the Agents.
11.4. Financial Statements, Certificates and Information. The
Borrower will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than
one hundred twenty (120) days after the end of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries and the consolidating balance sheet of the Borrower and
its Subsidiaries, each as at the end of such year, and the related
consolidated statement of income and consolidated statement of cash
flow and consolidating statement of income and consolidating statement
of cash flow for such year, each setting forth in comparative form the
figures for the previous fiscal year and all such statements to be in
reasonable detail, prepared in accordance with generally accepted
accounting principles, and all such consolidated statements to be
certified without qualification by Ernst & Young LLP or by other
independent certified public accountants satisfactory to the
Administrative Agent;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of
the Borrower, copies of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries and the unaudited consolidating balance
sheet of the Borrower and its Subsidiaries, each as at the end of such
quarter, and the related consolidated statement of income and
consolidated statement of cash flow and consolidating statement of
income and consolidating
statement of cash flow for the portion of the Borrower's fiscal year
then elapsed, all in reasonable detail and prepared in accordance with
generally accepted accounting principles, together with a certification
by the principal financial or accounting officer of the Borrower that
the information contained in such financial statements fairly presents
the financial position of the Borrower and its Subsidiaries on the date
thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event within thirty
(30) days after the end of each month in each fiscal year of the
Borrower, unaudited monthly consolidated financial statements of the
Borrower and its Subsidiaries for such month and unaudited monthly
consolidating financial statements of the Borrower and its Subsidiaries
for such month, each prepared in accordance with generally accepted
accounting principles;
(d) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement
certified by the principal financial or accounting officer of the
Borrower in substantially the form of Exhibit C hereto (the "Compliance
Certificate") and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in ss.13 and (if
applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date;
(e) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the Securities
and Exchange Commission or sent to the equity holders or debt holders
of the Borrower;
(f) as soon as the same become available and in any event not
later than January 31 of each year, an annual business plan of the
Borrower and its Subsidiaries on a consolidated basis for such fiscal
year and financial projections for the Borrower and its Subsidiaries on
a consolidated basis for the next succeeding three (3) fiscal years,
including statements of income and cash flow and balance sheets and the
assumptions underlying such plan, all such statements to be in
reasonable detail and certified by the chief financial officer of the
Borrower as a reasonable forecast of the anticipated financial
condition of the Borrower and its Subsidiaries on a consolidated basis
and business segment basis in respect of such fiscal years;
(g) not less frequently than once each calendar year, or more
frequently as determined by either Agent, appraisal reports in form and
substance and from independent appraisers satisfactory to the Agents,
stating the then current fair market value of each of the Vessels
subject to a Vessel Mortgage; all such appraisals to be conducted and
made at the expense of the Borrower; and
(h) from time to time such other financial data and
information (including accountants', management letters) as either
Agent or any Bank may reasonably request.
11.5. Notices.
11.5.1. Defaults. The Borrower will promptly notify the
Administrative Agent and each of the Banks in writing of the occurrence
of any Default or Event of Default. If any Person shall give any notice
or take any other action in respect of a claimed default (whether or
not constituting an Event of Default) under this Credit Agreement or
any other note, evidence of Indebtedness, indenture or other obligation
to which or with respect to which the Borrower or any of its
Subsidiaries is a party or obligor, whether as principal, guarantor,
surety or otherwise, the Borrower shall forthwith give written notice
thereof to the Administrative Agent and each of the Banks, describing
the notice or action and the nature of the claimed default.
11.5.2. Environmental Events. The Borrower will promptly give
notice to the Administrative Agent and each of the Banks (i) of any
material violation of any Environmental Law that the Borrower or any of
its Subsidiaries reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any oral
report is made) to any federal, state or local environmental agency
that has the potential to materially adversely affect the assets,
liabilities, financial conditions or operations of the Borrower or any
of its Subsidiaries or the Documentation Agent's security interests
pursuant to the Security Documents and (ii) upon becoming aware
thereof, of any inquiry, proceeding, investigation, or other action,
including a notice from any agency of potential environmental
liability, of any federal, state or local environmental agency or
board, that has the potential to materially adversely affect the
assets, liabilities, financial conditions or operations of the Borrower
or any of its Subsidiaries or the Documentation Agent's security
interests pursuant to the Security Documents.
11.5.3. Notice of Litigation and Judgments. The Borrower will,
and will cause each of its Subsidiaries to, give notice to the
Administrative Agent and each of the Banks in writing within fifteen
(15) days of becoming aware of any litigation or proceedings threatened
in writing or any pending litigation and proceedings affecting the
Borrower or any of its Subsidiaries or to which the Borrower or any of
its Subsidiaries is or becomes a party involving an uninsured claim
against the Borrower or any of its Subsidiaries that could reasonably
be expected to have a materially adverse effect on the Borrower or any
of its Subsidiaries and stating the nature and status of such
litigation or proceedings. The Borrower will, and will cause each of
its Subsidiaries to, give notice to the Administrative Agent and each
of the Banks, in writing, in form and detail satisfactory to the
Administrative Agent, within ten (10) days of any judgment not covered
by insurance, final or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $1,000,000.
11.5.4. Notification of Claim Against Collateral. The Borrower
will, immediately upon becoming aware thereof, notify the Agents and
each of the Banks in writing of any setoff, claims, withholdings or
other defenses to which any of the Collateral, or the Documentation
Agent's rights with respect to the Collateral, are subject.
11.6. Corporate Existence; Maintenance of Properties; Etc.
(a) The Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate or limited partnership,
as the case may be, existence, rights and franchises and those of its
Subsidiaries.
(b) The Borrower (i) will cause all of its properties and those of its
Subsidiaries used or useful in the conduct of its business or the business of
its Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, and (iii) will, and will cause each of its Subsidiaries to,
continue to engage primarily in the businesses now conducted by them and in
related businesses; provided that nothing in this ss.11.6 shall prevent the
Borrower from discontinuing the operation and maintenance of any of its
properties or any of those of its Subsidiaries if such discontinuance is, in the
judgment of the Borrower, desirable in the conduct of its or their business and
that do not in the aggregate materially adversely affect the business of the
Borrower and its Subsidiaries on a consolidated basis.
11.7. Insurance. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such casualties
and contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent and reasonably satisfactory to the Administrative Agent.
The Borrower will, and will cause each of its Subsidiaries to, maintain
insurance on each Vessel subject to a Vessel Mortgage, in accordance with the
terms of such Vessel Mortgage.
11.8. Taxes. The Borrower will, and will cause each of its Subsidiaries
to, duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
imposed upon it and its real properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies that if unpaid might by law become a lien or
charge upon any of its property; provided that any such tax, assessment, charge,
levy or claim need not be paid if the validity or amount thereof shall currently
be contested in good faith by appropriate proceedings and if the Borrower or
such Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and provided further that the Borrower and each Subsidiary of the
Borrower will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien that may
have attached as security therefor.
11.9. Inspection of Properties and Books. The Borrower shall permit the
Banks, through the Administrative Agent or any of the Banks' other designated
representatives, to visit and inspect any of the properties of the Borrower or
any of its Subsidiaries, to examine the books of account of the Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom), and to discuss
the affairs, finances and accounts of the Borrower and its Subsidiaries with,
and to be advised as to the same by, its and their officers, all at such
reasonable times and intervals as the Administrative Agent or any Bank may
reasonably request.
11.10. Compliance with Laws, Contracts, Licenses, and Permits. The
Borrower will, and will cause each of its Subsidiaries to, comply with (i) in
all material respects, the applicable laws and regulations wherever its business
is conducted, including all Environmental Laws, (ii) the provisions of its
charter documents and by-laws, (iii) all agreements and instruments by which it
or any of its properties may be bound and (iv) all applicable decrees, orders,
and judgments. If any authorization, consent, approval, permit or license from
any officer, agency or instrumentality of any government shall become necessary
or required in order that the Borrower or any of its Subsidiaries may fulfill
any of its obligations hereunder or any of the other Loan Documents to which the
Borrower or such Subsidiary is a party, the Borrower will, or (as the case may
be) will cause such Subsidiary to, immediately take or cause to be taken all
reasonable steps within the power of the Borrower or such Subsidiary to obtain
such authorization, consent, approval, permit or license and furnish the
Administrative Agent and the Banks with evidence thereof.
11.11. Employee Benefit Plans. The Borrower will (i) promptly upon
filing the same with the Department of Labor or Internal Revenue Service upon
request of the Administrative Agent, furnish to the Administrative Agent a copy
of the most recent actuarial statement required to be submitted under ss.103(d)
of ERISA and Annual Report, Form 5500, with all required attachments, in respect
of each Guaranteed Pension Plan and (ii) promptly upon receipt or dispatch,
furnish to the Administrative Agent any notice, report or demand sent or
received in respect of a Guaranteed Pension Plan under ss.ss.302, 4041, 4042,
4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan,
under ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA.
11.12. Use of Proceeds. The Borrower will use the proceeds of the Loans
solely to convert existing Indebtedness of the Borrower to Loans hereunder, for
working capital and general corporate purposes and to finance Permitted
Acquisitions.
11.13. Concerning the Vessels; Citizenship. The Borrower will, and will
cause each of its Subsidiaries to operate each Vessel in compliance with all
applicable governmental rules, regulations and requirements, including, without
limitation, with respect to each Vessel operated in the coastwise trade of the
United States of America, the Shipping Act, 1916, as amended and in effect, and
all Environmental Laws. The Borrower shall, and shall cause each Subsidiary
owning a Vessel engaging in the coastwise trade of the United States of America
to, remain a "citizen of the United States" within the meaning of Section 2 of
the Shipping Act, 1916, as amended, for purposes of engaging in the coastwise
trade of the United States of America.
11.14. Further Assurances. The Borrower will, and will cause each of
its Subsidiaries to, cooperate with the Banks and the Administrative Agent and
execute such further instruments and documents as the Banks or the
Administrative Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
11.15. Collateral Valuation. The Borrower shall, on or before March 15,
1998, cause to be delivered to the Agents appraisals from an appraiser and in
form and substance satisfactory to the Agents, with respect to each Vessel
subject to a Vessel Mortgage. The Agents shall be satisfied, based on such
appraisals, that the aggregate fair market value of the Vessels subject to the
Vessel Mortgages on such date is not less than $400,000,000.
12. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE
GUARANTORS.
The Borrower and each Guarantor covenants and agrees that, so long as
any Loan, Reimbursement Obligation, Letter of Credit or Note is outstanding or
any Bank has any obligation to make any Loans or the Issuing Bank has any
obligation to issue, extend or renew any Letter of Credit:
12.1. Restrictions on Indebtedness. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Banks and the Agents arising under
any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business;
(c) Indebtedness incurred in connection with the acquisition
after the date hereof of any real or personal property by the Borrower
or such Subsidiary or under any Capitalized Lease, provided that (i)
the aggregate amount of such Indebtedness does not exceed seventy
percent (70%) of the fair market value (determined in good faith by the
Borrower) of the property so acquired (except that, with respect to not
more than $15,000,000 of Indebtedness permitted pursuant to this clause
(c), such Indebtedness may be in an amount up to one hundred percent
(100%) of the fair market value (determined in good faith by the
Borrower) of the property so acquired), (ii) the aggregate principal
amount of such Indebtedness of the Borrower and its Subsidiaries shall
not exceed the aggregate amount of $100,000,000 at any one time, and
(iii) immediately after the incurrence of such Indebtedness, and after
giving effect thereto, no Default or Event of Default shall have
occurred and be continuing;
(d) Indebtedness existing on the date hereof and listed and
described on Schedule 12.1 hereto;
(e) Indebtedness of a Subsidiary of the Borrower owing to the
Borrower or a Guarantor;
(f) Indebtedness in respect of the Senior Notes in an
aggregate principal amount not to exceed $350,000,000; and
(g) additional unsecured Indebtedness of the Borrower incurred
after the Closing Date so long as no Default or Event of Default shall
have occurred and be continuing or would result therefrom.
12.2. Restrictions on Liens. The Borrower will not, and will not permit
any of its Subsidiaries to, (i) create or incur or suffer to be created or
incurred or to exist any lien, encumbrance, mortgage, pledge, charge,
restriction or other security interest of any kind upon any of its property or
assets of any character whether now owned or hereafter acquired, or upon the
income or profits therefrom; (ii) transfer any of such property or assets or the
income or profits therefrom for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of its general creditors; (iii) acquire, or agree or have an option to
acquire, any property or assets upon conditional sale or other title retention
or purchase money security agreement, device or arrangement; or (iv) suffer to
exist for a period of more than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it that if unpaid might by
law or upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; provided that the Borrower or any of its
Subsidiaries may create or incur or suffer to be created or incurred or to
exist:
(a) liens in favor of the Borrower on all or part of the
assets of Subsidiaries of the Borrower securing Indebtedness owing by
Subsidiaries of the Borrower to the Borrower;
(b) liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or liens to secure claims
for labor, material or supplies in respect of obligations not overdue;
(c) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(d) liens in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long
as execution is not levied thereunder or in respect of which the
Borrower or such Subsidiary shall at the time in good faith be
prosecuting an appeal or proceedings for review and in respect of which
a stay of execution shall have been obtained pending such appeal or
review;
(e) liens or claims of carriers, warehousemen, mechanics, ship
repairers and materialmen, and other like liens, in existence less than
120 days from the date of creation thereof in respect of obligations
which are either (i) not overdue or (ii) being contested in good faith
by the Borrower;
(f) encumbrances on Real Estate consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the Borrower or a
Subsidiary of the Borrower is a party, and other minor liens or
encumbrances none of
which in the opinion of the Borrower interferes materially with the use
of the property affected in the ordinary conduct of the business of the
Borrower and its Subsidiaries, which defects do not individually or in
the aggregate have a materially adverse effect on the business of the
Borrower individually or of the Borrower and its Subsidiaries on a
consolidated basis;
(g) liens existing on the date hereof and listed on Schedule
12.2 hereto;
(h) purchase money security interests in or purchase money
mortgages on real or personal property not constituting Collateral
acquired after the date hereof to secure purchase money Indebtedness of
the type and amount permitted by ss.12.1(c), incurred in connection
with the acquisition of such property, which security interests or
mortgages cover only the real or personal property so acquired and
secure only the debt incurred to acquire such property as permitted
under ss.12.1(c) and liens on the assets subject to Capitalized Leases
permitted under ss.12.1(c); provided that no Default or Event of
Default shall have occurred and be continuing or would result from the
grant of such security interest or mortgage;
(i) liens in favor of the Documentation Agent for the benefit
of the Banks and the Agents under the Loan Documents; and
(j) liens permitted pursuant to the Vessel Mortgages.
12.3. Restrictions on Investments. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of
purchase by the Borrower;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of any Bank or any United States banks
having total assets in excess of $1,000,000,000;
(c) securities commonly known as "commercial paper" issued by
a corporation organized and existing under the laws of the United
States of America or any state thereof that at the time of purchase
have been rated and the ratings for which are not less than "P 1" if
rated by Xxxxx'x Investors Service, Inc. ("Moody's") and not less than
"A 1" if rated by Standard and Poor's Rating Group ("S&P"); provided
that such Investment in such commercial paper otherwise permitted
hereunder shall be permitted if such commercial paper is rated either
(i) not less than "P 2" by Moody's and "A 1" by S&P or (ii) not less
than "A 2" by S&P and "P 1" by Moody's;
(d) Investments existing on the date hereof and listed on
Schedule 12.3 hereto;
(e) Investments with respect to Indebtedness permitted by
ss.12.1(e) so long as
such entities remain Subsidiaries of the Borrower and Guarantors
hereunder;
(f) Investments consisting of the Guaranty and Investments by
the Borrower in the Guarantors;
(g) Investments consisting of promissory notes received as
proceeds of asset dispositions permitted by ss.12.5.2;
(h) Investments in Permitted Acquisitions; and
(i) Investments consisting of loans and advances to employees
for moving, entertainment, travel and other similar expenses in the
ordinary course of business not to exceed $500,000 in the aggregate at
any time outstanding.
12.4. Distributions.
(a) The Borrower will not make any Distributions; provided
that so long as no Default or Event of Default shall have occurred and
be continuing or would result from the making of such Distribution, the
Borrower may make Distributions consisting of dividends on its Class A
Common Stock and Class B Common Stock in an aggregate amount in any
fiscal year not to exceed fifty percent (50%) of Consolidated Net
Income for such fiscal year.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to, create or permit to exist any restriction on the
ability of any Subsidiary of the Borrower to pay dividends to the
Borrower.
12.5. Merger, Consolidation and Disposition of Assets.
12.5.1. Mergers and Acquisitions. The Borrower will not, and
will not permit any of its Subsidiaries to, become a party to any
merger or consolidation except the merger or consolidation of one or
more of the Subsidiaries of the Borrower with and into the Borrower or
a Guarantor, with the Borrower or such Guarantor being the surviving
corporation of such merger or consolidation, or the merger or
consolidation of two or more Non-Guarantor Subsidiaries; provided that,
in each case, no Default or Event of Default shall have occurred and be
continuing, or would result from such merger or consolidation. The
Borrower will not, and will not permit any of its Subsidiaries to,
effect any asset acquisition or stock acquisition, other than (i)
Permitted Acquisitions and (ii) the acquisition of assets in the
ordinary course of business consistent with past practices.
12.5.2. Disposition of Assets. The Borrower will not, and will
not permit any of its Subsidiaries to, become a party to or agree to or
effect any disposition of assets, other than (a) the sale of inventory
and the disposition of assets no longer used or useful in the business
or operations of the Borrower, in each case in the ordinary course of
business consistent with past practices; (b) the transfer of assets
from any
Subsidiary of the Borrower to the Borrower or a Guarantor or from any
Non-Guarantor Subsidiary to the Borrower or another Subsidiary of the
Borrower; and (c) other dispositions of assets not otherwise permitted
pursuant to the foregoing clauses of this ss.12.5.2, provided that the
aggregate fair market value of the assets so disposed of in any period
of twelve (12) consecutive months shall not exceed $10,000,000.
12.6. Sale and Leaseback. The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby the Borrower or any Subsidiary of the Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that the Borrower or any Subsidiary of the Borrower intends
to use for substantially the same purpose as the property being sold or
transferred.
12.7. Compliance with Environmental Laws. The Borrower will not, and
will not permit any of its Subsidiaries to, (i) except in compliance with all
applicable laws, use any of the Real Estate or any portion thereof for the
handling, processing, storage or disposal of hazardous substances, (ii) cause or
permit to be located on any of the Real Estate any underground tank or other
underground storage receptacle for hazardous substances, (iii) except in
compliance with all applicable laws, generate any hazardous substances on any of
the Real Estate, (iv) conduct any activity at any Real Estate, on any Vessel, or
use any Real Estate or any Vessel in any manner so as to cause a release (i.e.
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping) or threatened release of
hazardous substances on, upon or into the Real Estate or from any Vessel, if
such activity or release could reasonably be expected to have a material adverse
effect on the environment or the business, assets or financial condition of the
Borrower or any of its Subsidiaries or (v) otherwise conduct any activity at any
Real Estate or use any Real Estate or operate any Vessel in any manner that
would violate any Environmental Law or bring such Real Estate or such Vessel in
violation of any Environmental Law.
12.8. Trust Securities; Senior Notes.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, amend, supplement or otherwise modify the terms of any
of the Trust Securities or prepay, redeem or repurchase any of the
Trust Securities; provided, that the Borrower and any of its
Subsidiaries may redeem the Trust Securities so long as (i) immediately
after, and after giving effect to such redemption, no Default or Event
of Default shall have occurred and be continuing and (ii) on the date
of such redemption the average sale price of the Borrower's Class A
Common Stock on The Nasdaq National Market is at least $2.00 above the
"conversion price" relating to the conversion of the Trust Securities
into the Class A Common Stock of the Borrower, as such conversion price
is adjusted pursuant to the terms of the Trust Securities.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, amend, supplement or otherwise modify any of the terms
of the Senior Notes or the Senior Note Indenture, or prepay, redeem,
repurchase or defease any of the Senior
Notes.
12.9. Employee Benefit Plans. Neither the Borrower nor any ERISA
Affiliate will
(a) engage in any "prohibited transaction" within the meaning
of ss.406 of ERISA or ss.4975 of the Code which could result in a
material liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in ss.302 of
ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of the Borrower or any of its Subsidiaries pursuant to ss.302(f)
or ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances
requiring the posting of security pursuant to ss.307 of ERISA or ss.
401(a)(29) of the Code; or
(e) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of ss.4001 of ERISA) of
all Guaranteed Pension Plans exceeding the value of the aggregate
assets of such Plans, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess of
benefit liabilities.
12.10. Business Activities. The Borrower will not, and will not permit
any of its Subsidiaries to, engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the businesses
conducted by them on the Closing Date and in related businesses.
12.11. Fiscal Year; Fiscal Quarters. The Borrower will not, and will
not permit any of it Subsidiaries to, change the date of the end of its fiscal
year or any of its fiscal quarters from that set forth in ss.10.4.1.
12.12. Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, engage in any transaction with any
Affiliate (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any such
Affiliate or, to the knowledge of the Borrower, any corporation, partnership,
trust or other entity in which any such Affiliate has a substantial interest or
is an officer, director, trustee or partner, on terms more favorable to such
Person than would have been obtainable on an arm's-length basis in the ordinary
course of business.
13. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan,
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Issuing Bank has any Obligation to
issue, extend or renew any Letter of Credit:
13.1. Leverage Ratio. The Borrower will not permit the Leverage Ratio,
determined on a Pro Forma Basis at the end of each fiscal quarter of the
Borrower ending during a period set forth in the table below to exceed the ratio
set forth opposite such period in such table:
Period Maximum Ratio
Closing Date through June 29, 1999 4.00:1.00
June 30, 1999 and thereafter 3.50:1.00
13.2. Debt Service Coverage Ratio. The Borrower will not permit the
Debt Service Coverage Ratio, determined on a Pro Forma Basis at the end of each
fiscal quarter of the Borrower, to be less than 3.0:1.0.
13.3. Indebtedness to Net Worth Ratio. The Borrower will not permit the
ratio of (a) Consolidated Total Indebtedness to (b) Consolidated Net Worth, at
any time during a period set forth in the table below to exceed the ratio set
forth opposite such period in such table:
Period Maximum Ratio
Closing Date through December 30, 1998 2.25:1.00
December 31, 1998 through June 29, 1999 1.75:1.00
June 30, 1999 and thereafter 1.50:1.00
13.4. Collateral Coverage Ratio. The Borrower will not, at any time,
permit the ratio of (a) the aggregate fair market value of each of the Vessels
subject to a first priority perfected mortgage in favor of the Documentation
Agent pursuant to the Security Documents, as determined pursuant to independent
appraisals as shall be in form and substance satisfactory to the Agents to (b)
the sum of the aggregate outstanding principal amount of Revolving Credit Loans
and the Term Loan, and all accrued and unpaid interest thereon, plus the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations, to be less than
1.25:1.00.
14. CLOSING CONDITIONS.
The obligations of the Banks to amend and restate the Existing
Revolving Credit Loans and the Existing Term Loan and to make the initial
Revolving Credit Loans and of the Issuing Bank to issue any initial Letter of
Credit on the Closing Date shall be subject to the satisfaction of the following
conditions precedent on or prior to February 20, 1998:
14.1. Loan Documents. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document.
14.2. Certified Copies of Charter Documents. Each of the Banks shall
have received from the Borrower and each of its Subsidiaries a copy, certified
by a duly authorized officer of such Person to be true and complete on the
Closing Date, of each of (i) its charter or other incorporation documents as in
effect on such date of certification, and (ii) its by-laws as in effect on such
date.
14.3. Corporate, Action. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and each of its Subsidiaries
of this Credit Agreement and the other Loan Documents to which it is or is to
become a party shall have been duly and effectively taken, and evidence thereof
satisfactory to the Banks shall have been provided to each of the Banks.
14.4. Incumbency Certificate. The Administrative Agent shall have
received from the Borrower and each of its Subsidiaries an incumbency
certificate, dated as of the Closing Date, signed by a duly authorized officer
of the Borrower or such Subsidiary, and giving the name
and bearing a specimen signature of each individual who shall be authorized: (i)
to sign, in the name and on behalf of each of the Borrower or such Subsidiary,
each of the Loan Documents to which the Borrower or such Subsidiary is or is to
become a party; (ii) in the case of the Borrower, to make Loan Requests and
Conversion Requests and to apply for Letters of Credit; and (iii) to give
notices and to take other action on its behalf under the Loan Documents.
14.5. Certificates of Insurance. The Agents shall have received (i) a
certificate of insurance from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance, insurance limits, and
policy terms, and otherwise describing the insurance obtained in accordance with
the provisions hereof and the Security Documents and (ii) certified copies of
all policies evidencing such insurance (or certificates therefor signed by the
insurer or an agent authorized to bind the insurer).
14.6. Opinions of Counsel. Each of the Banks and the Agents shall have
received a favorable legal opinion addressed to the Banks and the Agents, dated
as of the Closing Date, in form and substance satisfactory to the Banks and the
Agents, from (a) Xxxx Xxxxxxx, Esq., counsel to the Borrower and its
Subsidiaries, (b) Xxxx, Xxxxx & Xxxxxx, special counsel to the Borrower and its
Subsidiaries, and (c) Xxxxxxx Xxxx LLP, special counsel to the Agents.
14.7. Payment of Fees. The Borrower shall have paid to the
Administrative Agent, for the account of the Banks, the Agents or the Arrangers,
as appropriate, the fees to be paid on the Closing Date.
14.8. Perfection Certificates and Search Results. The Agents shall have
received from the Borrower and each of its Subsidiaries owning Vessels which are
subject to a Vessel Mortgage a Perfection Certificate (as defined in the
Security Agreements) and the results of UCC and maritime registry searches with
respect to the Collateral and the other assets of the Borrower and its
Subsidiaries, indicating no liens other than Permitted Liens and otherwise in
form and substance satisfactory to the Agents.
14.9. Validity of Liens. The Security Documents shall be effective to
create in favor of the Documentation Agent, for the benefit of the Banks and the
Agents, a legal valid and enforceable first priority (except for Permitted Liens
entitled to priority under applicable law) security interest in and lien upon
the Collateral, including, without limitation, a first preferred mortgage on
each of the Vessels constituting Collateral. All filings, recordings, deliveries
of instruments and other actions necessary or desirable in the opinion of the
Documentation Agent to protect and preserve such security interests shall have
been duly effected. The Documentation Agent shall have received evidence thereof
in form and substance satisfactory to the Documentation Agent.
14.10. Capital Structure, Etc. The Agents shall be satisfied with the
capital and corporate structure of the Borrower and its Subsidiaries. The
Borrower shall have received the proceeds from the issuance of at least
$300,000,000 of the Senior Notes and the Agents shall have received evidence
thereof in form and substance satisfactory to them. The Agents shall have
received a copy, certified by an officer of the Borrower to be true and correct,
of
the Senior Note Indenture and all other material documentation relating to the
Senior Notes, and all of such documentation shall be in form and substance
satisfactory to the Agents.
14.11. Vessel Appraisals. The Agents shall have received appraisals
from an appraiser and in form and substance satisfactory to the Agents, with
respect to certain Vessels subject to a Vessel Mortgage on the Closing Date. The
Agents shall be satisfied, based on such appraisals, that the Borrower will be
in compliance with ss.13.4 hereof on the Closing Date, after giving effect to
all Loans to be made or, as the case may be, amended and restated, and Letters
of Credit to be issued on such date.
15. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to amend and restate the Existing
Revolving Credit Loans and the Existing Term Loan and to make any Loan and of
the Issuing Bank to issue, extend or renew any Letter of Credit, in each case
whether on or after the Closing Date, shall also be subject to the satisfaction
of the following conditions precedent:
15.1. Representations True; No Event of Default. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Loan, with the same effect as if
made at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit Agreement and the other
Loan Documents and to the extent that such representations and warranties relate
expressly to an earlier date) and no Default or Event of Default shall have
occurred and be continuing or would result from the making of such Loan.
15.2. No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Issuing Bank would make it illegal for the Issuing
Bank to issue, extend or renew such Letter of Credit.
15.3. Governmental Regulation. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
15.4. Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agents and the Agents' Special Counsel, and the
Banks, the Agents and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agents may reasonably request.
15.5. Vessel Appraisals. The Agents shall have received appraisals from
an appraiser and in form and substance satisfactory to the Agents, with respect
to certain Vessels subject to a Vessel Mortgage on the Drawdown Date of such
Loan. The Agents shall be satisfied, based on such appraisals, that the Borrower
will be in compliance with ss.13.4 hereof on such Drawdown Date, after giving
effect to all Loans to be made and Letters of Credit to be issued on such date.
16. EVENTS OF DEFAULT; ACCELERATION; ETC.
16.1. Events of Default and Acceleration. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "Defaults") shall
occur:
(a) the Borrower shall fail to pay any principal of the Loans
or any Reimbursement Obligation when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(b) the Borrower or any of its Subsidiaries shall fail to pay
any interest on the Loans, the commitment fee, any Letter of Credit
Fee, any Fronting Fee, the Agency fee, or other sums due hereunder or
under any of the other Loan Documents, within three (3) Business Days
of when the same shall become due and payable, whether at the stated
date of maturity or any accelerated date of maturity or at any other
date fixed for payment;
(c) the Borrower or any of its Subsidiaries shall fail to
comply with any of their covenants contained in ss.ss.11.5, 11.6(a),
11.7, 11.12, 11.13, 12 or 13;
(d) the Borrower or any of its Subsidiaries shall fail to
perform any term, covenant or agreement contained herein or in any of
the other Loan Documents (other than those specified elsewhere in this
ss.16.1) for thirty (30) days after written notice of such failure has
been given to the Borrower by an Agent;
(e) any representation or warranty of the Borrower or any of
its Subsidiaries in this Credit Agreement or any of the other Loan
Documents or in any other document or instrument delivered pursuant to
or in connection with this Credit Agreement shall prove to have been
false in any material respect upon the date when made or deemed to have
been made or repeated;
(f) the Borrower or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any
Indebtedness in excess of $1,000,000, or any event specified in any
note, agreement, indenture or other document evidencing or securing any
such Indebtedness shall occur if the effect of such event is to cause,
or (with the giving of notice or the lapse of time or both) to permit
the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause such Indebtedness to become
due, or to be prepaid in full prior to its stated
maturity; or the Borrower or any of its Subsidiaries shall default in
the payment when due of any amount in excess of $1,000,000 under any
Derivative Transaction; or any event specified in any Derivative
Transaction to which the Borrower or any Subsidiary is a party shall
occur if the effect of such event is to cause, or (with the giving of
notice or the lapse of time or both) to permit, termination or
liquidation payments in respect of such Derivative Transaction in
excess of $1,000,000 to become due;
(g) the Borrower or any of its Subsidiaries shall make an
assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee
or other custodian, liquidator or receiver of the Borrower or any of
its Subsidiaries or of any substantial part of the assets of the
Borrower or any of its Subsidiaries or shall commence any case or other
proceeding relating to the Borrower or any of its Subsidiaries under
any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution or liquidation or similar law of any jurisdiction,
now or hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall
be commenced against the Borrower or any of its Subsidiaries and the
Borrower or any of its Subsidiaries shall indicate its approval
thereof, consent thereto or acquiescence therein or such petition or
application shall not have been dismissed within forty-five (45) days
following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any
of its Subsidiaries bankrupt or insolvent, or approving a petition in
any such case or other proceeding, or a decree or order for relief is
entered in respect of the Borrower or any Subsidiary of the Borrower in
an involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any
final judgment against the Borrower or any of its Subsidiaries that,
with other outstanding final judgments, undischarged, against the
Borrower or any of its Subsidiaries exceeds in the aggregate
$1,000,000;
(j) the holders of all or any part of the Trust Securities
shall accelerate the maturity of all or any part of the Trust
Securities or the Trust Securities shall be prepaid, redeemed or
repurchased in whole or in part or any default or event of default
under the Trust Securities shall occur;
(k) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded or the Documentation Agent's security
interests in any of the Collateral shall cease to be perfected or have
the priority contemplated by the Security Documents, except in
compliance with the provisions hereof, including, without limitation,
ss.13.4 hereof, or with the express prior written agreement, consent or
approval of the Banks or any action at law, suit or in equity or other
legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf of
the Borrower or any of its Subsidiaries party thereto or any of their
respective stockholders, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid
or unenforceable in accordance with the terms thereof;
(l) the Borrower or any ERISA Affiliate incurs any liability
to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA
in an aggregate amount exceeding $1,000,000 or the Borrower or any
ERISA Affiliate is assessed withdrawal liability pursuant to Title IV
of ERISA by a Multiemployer Plan requiring aggregate annual payments
exceeding $1,000,000, or any of the following occurs with respect to a
Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to
make a required installment or other payment (within the meaning of
ss.302(f)(1) of ERISA), provided that the Administrative Agent
determines in its reasonable discretion that such event (A) could be
expected to result in liability of the Borrower or any of its
Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $1,000,000 and (B) could constitute grounds
for the termination of such Guaranteed Pension Plan by the PBGC, for
the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan or for the
imposition of a lien in favor of such Guaranteed Pension Plan; or (ii)
the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by
the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(m) a Change of Control shall have occurred; or
(n) there shall occur any material damage to, or loss, theft
or destruction of any Collateral which is not insured or which is
insured but as to which loss, theft or destruction, the insurance
proceeds relating thereto have not been paid to the Documentation
Agent, for the benefit of the Banks and the Agents, in accordance with
the terms of the Security Documents;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Banks shall, by
notice in writing to the Borrower declare all amounts owing with respect to this
Credit Agreement, the Notes and the other Loan Documents and all Reimbursement
Obligations to be, and they shall thereupon forthwith become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrower; provided that in the
event of any Event of Default specified in ss.ss.16.1(g) or 16.1(h), all such
amounts shall become immediately due and payable automatically and without any
requirement of notice from the Administrative Agent or any Bank.
16.2. Termination of Commitments. If any one or more of the Events of
Default specified in ss.16.1(g) or ss.16.1(h) shall occur, any unused portion of
the credit hereunder shall forthwith terminate and each of the Banks shall be
relieved of all further obligations to make
Loans to the Borrower and the Issuing Bank shall be relieved of all further
obligations to issue, extend or renew Letters of Credit. If any other Event of
Default shall have occurred and be continuing, the Administrative Agent may and,
upon the request of the Required Banks, shall, by notice to the Borrower,
terminate the unused portion of the credit hereunder, and upon such notice being
given such unused portion of the credit hereunder shall terminate immediately
and each of the Banks shall be relieved of all further obligations to make Loans
and the Issuing Bank shall be relieved of all further obligations to issue,
extend or renew Letters of Credit. No termination of the credit hereunder shall
relieve the Borrower or any of its Subsidiaries of any of the Obligations.
16.3. Remedies. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to ss.16.1, each Bank, if owed
any amount with respect to the Loans, Reimbursement Obligations or other
Obligations, may, and the Documentation Agent may, if requested by the Required
Banks and in its sole discretion, on behalf of the Banks, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Administrative Agent or the holder of any Note or the purchaser of any
Letter of Credit Participation is intended to be exclusive of any other remedy
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or any other provision of law.
16.4. Distribution of Collateral Proceeds. In the event that, following
the occurrence or during the continuance of any Default or Event of Default,
either Agent or any Bank, as the case may be, receives any monies in connection
with the enforcement of any the Security Documents, or otherwise with respect to
the realization upon any of the Collateral, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agents for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agents in connection with the collection of such
monies by the Agents, for the exercise, protection or enforcement by
the Agents of all or any of the rights, remedies, powers and privileges
of the Agents under this Credit Agreement or any of the other Loan
Documents or in respect of the Collateral or in support of any
provision of adequate indemnity to the Agents against any taxes or
liens which by law shall have, or may have, priority over the rights of
the Agents to such monies;
(b) Second, to all other Obligations in such order or
preference as the Required Banks may determine; provided, however, that
(i) distributions shall be made (A) pari passu among Obligations with
respect to the Agents' fee payable pursuant to
ss.7.1 and all other Obligations and (B) with respect to each type of
Obligation owing to the Banks, such as interest, principal, fees and
expenses, among the Banks pro rata, and (ii) the Agents may in their
discretion make proper allowance on a pro rata basis among the Banks to
take into account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Banks and the Agents
of all of the Obligations, to the payment of any obligations required
to be paid pursuant to ss.9-504(1)(c) of the Uniform Commercial Code;
and
(d) Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
17. AGREEMENT OF THE BANKS.
Each of the Banks agrees with each other Bank that if such Bank shall
receive from the Borrower or any Guarantor, whether by voluntary payment,
counterclaim, cross action, enforcement of the claim evidenced by the Notes held
by or constituting Reimbursement Obligations owed to such Bank, by proceedings
against the Borrower or any Guarantor at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply to the payment of the Note or Notes held
by or Reimbursement Obligations owing to such Bank, any amount in excess of its
ratable portion of the payments received by all of the Banks with respect to the
Notes held by and Reimbursement Obligations owing to all of the Banks, such Bank
will make such disposition and arrangements with the other Banks with respect to
such excess, either by way of distribution, pro tanto assignment of claims,
subrogation or otherwise as shall result in each Bank receiving in respect of
the Notes held by, or Reimbursement Obligations owing to it, its proportionate
payment as contemplated by this Credit Agreement; provided that if all or any
part of such excess payment is thereafter recovered from such Bank, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
18. THE AGENTS; ETC.
18.1. Authorization.
(a) Each Agent is authorized to take such action on behalf of
each of the Banks and to exercise all such powers as are hereunder and
under any of the other Loan Documents and any related documents
delegated to such Agent, together with such powers as are reasonably
incident thereto, provided that no duties or responsibilities not
expressly assumed herein or therein shall be implied to have been
assumed by either Agent.
(b) The relationship between each Agent and each of the Banks
is that of an independent contractor. The use of the terms "Agent",
"Agents", "Administrative Agent", "Documentation Agent" and
"Syndication Agent" is for convenience only and
such terms are used to describe, as a form of convention, the
independent contractual relationship between the Agents and each of the
Banks. Nothing contained in this Credit Agreement nor the other Loan
Documents shall be construed to create an agency, trust or other
fiduciary relationship between the Agents and any of the Banks.
(c) As an independent contractor empowered by the Banks to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, each Agent is
nevertheless a "representative" of the Banks, as that term is defined
in Article 1 of the Uniform Commercial Code, for purposes of actions
for the benefit of the Banks and the Agents with respect to all
collateral security and guaranties contemplated by the Loan Documents.
Such actions include the designation of an Agent as "secured party",
"mortgagee" or the like on all financing statements and other documents
and instruments, whether recorded or otherwise, relating to the
attachment, perfection, priority or enforcement of any security
interests, mortgages or deeds of trust in collateral security intended
to secure the payment or performance of any of the Obligations, all for
the benefit of the Banks and the Agents.
18.2. Employees and Agents. Each Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Credit Agreement and the other Loan Documents. Each
Agent may utilize the services of such Persons as such Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrower.
18.3. No Liability. Neither Agent nor any of their respective
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that each Agent or such
other Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
18.4. No Representations.
18.4.1. General. Neither Agent shall be responsible for the
execution or validity or enforceability of this Credit Agreement, the
Notes, the Letters of Credit any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute,
collateral security for the Obligations, or for the value of any such
collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes or
the Letters of Credit, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in
any certificate or instrument hereafter furnished to it by or on behalf
of the Borrower or any of its Subsidiaries, or be bound to ascertain or
inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any instrument at any
time constituting, or intended to constitute, collateral security for
the
Obligations or to inspect any of the properties, books or records of
the Borrower or any of its Subsidiaries. Neither Agent shall be bound
to ascertain whether any notice, consent, waiver or request delivered
to it by the Borrower or any holder of any of the Notes shall have been
duly authorized or is true, accurate and complete. Neither Agent has
made nor does it now make any representations or warranties, express or
implied, nor does it assume any liability to the Banks, with respect to
the credit worthiness or financial condition of the Borrower or any of
its Subsidiaries. Each Bank acknowledges that it has, independently and
without reliance upon either Agent or any other Bank, and based upon
such information and documents as it has deemed appropriate, made its
own credit analysis and decision to enter into this Credit Agreement.
18.4.2. Closing Documentation, etc. For purposes of
determining compliance with the conditions set forth in ss.14, each
Bank that has executed this Credit Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each
document and matter either sent, or made available, by an Agent to such
Bank for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or
satisfactory to such Bank, unless an officer of such Agent active upon
the Borrower's account shall have received notice from such Bank prior
to the Closing Date specifying such Bank's objection thereto and such
objection shall not have been withdrawn by notice to such Agent to such
effect on or prior to the Closing Date.
18.5. Payments.
18.5.1. Payments to Administrative Agent. A payment by the
Borrower to the Administrative Agent hereunder or any of the other Loan
Documents for the account of any Bank shall constitute a payment to
such Bank. The Administrative Agent agrees promptly to distribute to
each Bank such Bank's pro rata share of payments received by the
Administrative Agent for the account of the Banks except as otherwise
expressly provided herein or in any of the other Loan Documents.
18.5.2. Distribution by Agents. If in the opinion of an Agent
the distribution of any amount received by it in such capacity
hereunder, under the Notes or under any of the other Loan Documents
might involve it in liability, it may refrain from making distribution
until its right to make distribution shall have been adjudicated by a
court of competent jurisdiction. If a court of competent jurisdiction
shall adjudge that any amount received and distributed by an Agent is
to be repaid, each Person to whom any such distribution shall have been
made shall either repay to such Agent its proportionate share of the
amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.
18.5.3. Delinquent Banks. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Bank that fails (i) to make available to the
Administrative Agent its pro rata share of any
Loan or to purchase any Letter of Credit Participation or (ii) to
comply with the provisions of ss.17 with respect to making dispositions
and arrangements with the other Banks, where such Bank's share of any
payment received, whether by setoff or otherwise, is in excess of its
pro rata share of such payments due and payable to all of the Banks, in
each case as, when and to the full extent required by the provisions of
this Credit Agreement, shall be deemed delinquent (a "Delinquent Bank")
and shall be deemed a Delinquent Bank until such time as such
delinquency is satisfied. A Delinquent Bank shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on
account of outstanding Loans, Unpaid Reimbursement Obligations,
interest, fees or otherwise, to the remaining nondelinquent Banks for
application to, and reduction of, their respective pro rata shares of
all outstanding Loans and Unpaid Reimbursement Obligations. The
Delinquent Bank hereby authorizes the Administrative Agent to
distribute such payments to the nondelinquent Banks in proportion to
their respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a result of application
of the assigned payments to all outstanding Loans and Unpaid
Reimbursement Obligations of the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment
causing such delinquency.
18.6. Holders of Notes. Each Agent may deem and treat the payee of any
Note or the purchaser of any Letter of Credit Participation as the absolute
owner or purchaser thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
18.7. Indemnity. The Banks ratably agree hereby to indemnify and hold
harmless each Agent and its affiliates and the Issuing Bank from and against any
and all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which such Agent, the
Issuing Bank or such affiliate has not been reimbursed by the Borrower as
required by ss.19), and liabilities of every nature and character arising out of
or related to this Credit Agreement, the Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby, or
such Agent's or the Issuing Bank's actions taken hereunder or thereunder, except
to the extent that any of the same shall be directly caused by such Agent's or
the Issuing Bank's willful misconduct or gross negligence.
18.8. Agents as Banks. In its individual capacity, each of Citibank,
N.A. and BankBoston, N.A. shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the Loans made by it, and
as the holder of any of the Notes and the purchaser of any Letter of Credit
Participation, as it would have were it not also an Agent.
18.9. Resignation. Either Agent or the Issuing Bank may resign at any time
by giving sixty (60) days prior written notice thereof to the Banks and the
Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent or Issuing Bank. Unless a Default or Event of Default shall have occurred
and be continuing, such successor Agent or Issuing Bank shall be reasonably
acceptable to the Borrower. If no successor Agent or Issuing Bank shall have
been so appointed by the Required Banks and shall have accepted such appointment
within thirty (30) days after the retiring Agent's or Issuing Bank's giving of
notice of resignation, then the retiring Agent or Issuing Bank may, on behalf of
the Banks, appoint a successor Agent or Issuing Bank, which shall be a financial
institution having a rating of not less than A or its equivalent by Standard &
Poor's Corporation. Upon the acceptance of any appointment as Agent or Issuing
Bank hereunder by a successor Agent or Issuing Bank, such successor Agent or
Issuing Bank shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent or Issuing Bank, and the
retiring Agent or Issuing Bank shall be discharged from its duties and
obligations hereunder. After any retiring Agent's or Issuing Bank's resignation,
the provisions of this Credit Agreement and the other Loan Documents shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Agent or Issuing Bank.
18.10. Notification of Defaults and Events of Default. Each Bank hereby
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Agents thereof. Each Agent hereby agrees that upon
receipt of any notice under this ss.18.10 it shall promptly notify the other
Banks of the existence of such Default or Event of Default.
18.11. Duties in the Case of Enforcement. In case one or more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Documentation Agent shall, if (i) so
requested by the Required Banks and (ii) the Banks have provided to the
Documentation Agent such additional indemnities and assurances against expenses
and liabilities as the Documentation Agent may reasonably request, proceed to
enforce the provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any such
other legal and equitable and other rights or remedies as it may have in respect
of such Collateral. The Required Banks may direct the Documentation Agent in
writing as to the method and the extent of any such sale or other disposition,
the Banks hereby agreeing to indemnify and hold the Documentation Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Documentation
Agent need not comply with any such direction to the extent that the
Documentation Agent reasonably believes the Documentation Agent's compliance
with such direction to be unlawful or commercially unreasonable in any
applicable jurisdiction.
19. EXPENSES AND INDEMNIFICATION.
19.1. Expenses. The Borrower agrees to pay (i) the reasonable costs of
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (ii) any taxes (including
any interest and penalties in respect thereto) payable by the Agents or any of
the Banks (other than taxes based upon any Agent's or any Bank's net income) on
or with respect to the transactions contemplated by this Credit Agreement (the
Borrower hereby agreeing to indemnify each Agent and each Bank with
respect thereto), (iii) the reasonable fees, expenses and disbursements of the
Agents' Special Counsel and any local counsel to the Agents incurred in
connection with the preparation, execution, delivery, syndication,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, any amendments, modifications,
approvals, consents or waivers hereto or hereunder, or the cancellation of any
Loan Document upon payment in full in cash of all of the Obligations and the
termination of the Commitments or pursuant to any terms of such Loan Document
providing for such cancellation, (iv) the fees, expenses and disbursements of
each of the Agents and the Arrangers or any of their affiliates incurred by such
Agent, Arranger or such affiliate in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other
instruments mentioned herein, including fees, expenses and disbursements
associated with collateral examination and appraisals and environmental surveys,
(v) all reasonable out-of-pocket expenses (including without limitation
reasonable attorneys' fees and costs, which attorneys may be employees of any
Bank or Agent, and reasonable consulting, accounting, appraisal, investment
banking and similar professional fees and charges) incurred by any Bank or Agent
in connection with (A) the enforcement of or preservation of rights under any of
the Loan Documents against the Borrower or any of its Subsidiaries or the
administration thereof after the occurrence of a Default or Event of Default and
(B) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or Agent's relationship with the
Borrower or any of its Subsidiaries and (vi) all reasonable fees, expenses and
disbursements of any Bank or Agent and their counsel incurred in connection with
the filing and recordation of the Documentation Agent's liens and security
interests pursuant to the Security Documents and with UCC searches and maritime
registry searches and obtaining vessel abstracts and similar documentation from
the Coast Guard National Vessel Documentation Center and any other maritime
authority.
19.2. Indemnification. The Borrower agrees to indemnify and hold
harmless the Agents, their affiliates and the Banks and their respective
directors, officers, employees and representatives from and against any and all
claims, actions and suits whether groundless or otherwise, and from and against
any and all liabilities, losses, damages and expenses of every nature and
character arising out of this Credit Agreement or any of the other Loan
Documents or the transactions contemplated hereby including, without limitation,
(i) any actual or proposed use by the Borrower or any of its Subsidiaries of the
proceeds of any of the Loans or Letters of Credit, (ii) the Borrower or any of
its Subsidiaries entering into or performing this Credit Agreement or any of the
other Loan Documents or (iii) with respect to the Borrower and its Subsidiaries
and their respective properties and assets, the violation of any Environmental
Law, the presence, disposal, escape, seepage, leakage, spillage, discharge,
emission, release or threatened release of any hazardous substances or any
action, suit, proceeding or investigation brought or threatened with respect to
any hazardous substances (including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding. In litigation, or the preparation
therefor, the Banks and the Agents and their affiliates shall be entitled to
select their own counsel and, in addition to the foregoing indemnity, the
Borrower agrees to pay promptly the reasonable fees and expenses of such
counsel. If, and to the extent that the obligations of the
Borrower under this ss.19.2 are unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable law.
19.3. Survival. The covenants contained in this ss.19 shall survive
payment or satisfaction in full of all other Obligations and the termination of
the Commitments.
20. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
20.1. Sharing of Information with Section 20 Subsidiary. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries, in connection with this Credit Agreement or otherwise, by a
Section 20 Subsidiary. The Borrower, for itself and each of its Subsidiaries,
hereby authorizes (a) such Section 20 Subsidiary to share with each Agent and
each Bank any information delivered to such Section 20 Subsidiary by the
Borrower or any of its Subsidiaries, and (b) each Agent and each Bank to share
with such Section 20 Subsidiary any information delivered to such Agent or such
Bank by the Borrower or any of its Subsidiaries pursuant to this Credit
Agreement, or in connection with the decision of such Bank to enter into this
Credit Agreement; it being understood, in each case, that any such Section 20
Subsidiary receiving such information shall be bound by the confidentiality
provisions of this Credit Agreement. Such authorization shall survive the
payment and satisfaction in full of all of Obligations.
20.2. Confidentiality. Each of the Banks and the Agents agrees, on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower or any of its Subsidiaries
pursuant to this Credit Agreement that is identified by such Person as being
confidential at the time the same is delivered to the Banks or the Agents,
provided that nothing herein shall limit the disclosure of any such information
(a) after such information shall have become public other than through a
violation of this ss.20, (b) to the extent required by statute, rule, regulation
or judicial process, (c) to counsel for any of the Banks or the Agents, (d) to
bank examiners or any other regulatory authority having jurisdiction over any
Bank or the Agents, or to auditors or accountants, (e) to an Agent, any Bank or
any Section 20 Subsidiary, (f) in connection with any litigation to which any
one or more of the Banks, the Agents or any Section 20 Subsidiary is a party, or
in connection with the enforcement of rights or remedies hereunder or under any
other Loan Document, (g) to a Subsidiary or affiliate of such Bank as provided
in ss.20.1 or (h) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant agrees to be bound by the
provisions of ss.22.6.
20.3. Prior Notification. Unless specifically prohibited by applicable
law or court order, each of the Banks and the Agents shall, prior to disclosure
thereof, notify the Borrower of any request for disclosure of any such
non-public information by any governmental agency or representative thereof
(other than any such request in connection with an examination of the financial
condition of such Bank by such governmental agency) or pursuant to legal
process.
20.4. Other. In no event shall any Bank or Agent be obligated or
required to return any materials furnished to it or any Section 20 Subsidiary by
the Borrower or any of its Subsidiaries. The obligations of each Bank and each
Agent under this ss.20 shall supersede and replace the obligations of such Bank
and each Agent under any confidentiality letter in respect of this financing
signed and delivered by such Bank or such Agent to the Borrower prior to the
date hereof and shall be binding upon any assignee of, or purchaser of any
participation or interest in any of the Loans or Reimbursement Obligations.
21. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Banks and the
Agents, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Banks of any of the Loans and the
issuance, extension or renewal of any Letters of Credit and shall continue in
full force and effect so long as any amount due under this Credit Agreement or
the Notes or any of the other Loan Documents remains outstanding or any Bank has
any obligation to make any Loans or the Issuing Bank has any obligation to
issue, extend or renew any Letter of Credit, and for such further time as may be
otherwise expressly specified in this Credit Agreement. All statements contained
in any certificate or other paper delivered to any Bank or Agent at any time by
or on behalf of the Borrower or any of its Subsidiaries pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower or such Subsidiary hereunder.
22. ASSIGNMENT AND PARTICIPATION.
22.1. Conditions to Assignment by Banks. Except as provided herein,
each Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Revolving Credit Commitment Percentage and Revolving Credit
Commitment and the same portion of the Revolving Credit Loans at the time owing
to it and the Revolving Credit Notes held by it and its participating interest
in the risk related to any Letters of Credit and the same portion of its Term
Loan Commitment Percentage and Term Loan Commitment and the same portion of the
Term Loan owing to it and the Term Note held by it); provided that (i) either
(a) such assignment is to another Bank or an affiliate of the assigning Bank or
(b) an Agent and, unless a Default or Event of Default shall have occurred and
be continuing, the Borrower shall have given its prior written consent to such
assignment, which consent will not be unreasonably withheld, (ii) each such
assignment shall be of a constant, and not a varying, percentage of all the
assigning Bank's rights and obligations under this Credit Agreement, (iii) each
assignment shall be in a minimum amount of $5,000,000 or a larger integral
multiple of $1,000,000 in excess thereof (or if less, the entire Revolving
Credit Commitment and Term Loan Commitment of the assigning Bank) and (iv) the
parties to such assignment shall execute and deliver to the Administrative
Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of Exhibit D hereto (an
"Assignment and Acceptance"), together with any Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, (i) the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of a
Bank hereunder, and (ii) the assigning Bank shall, to the extent provided in
such assignment and upon payment to the Administrative Agent of the registration
fee referred to in ss.22.3, be released from its obligations under this Credit
Agreement.
22.2. Certain Representations and Warranties; Limitations; Covenants.
By executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, and that it has made arrangements with
the assignee Bank satisfactory to such assignor with respect to its pro
rata share of Letter of Credit Fees with respect to outstanding Letters
of Credit, the assigning Bank makes no representation or warranty,
express or implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with
this Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or the attachment, perfection or priority of
any security interest or mortgage;
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrower and its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or
any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in ss.10.4 and ss.11.4 and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance
upon the assigning Bank, the Agents or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Credit Agreement;
(e) such assignee represents and warrants that it is an
Eligible Assignee;
(f) such assignee appoints and authorizes the Agents to take
such action as agent on its behalf and to exercise such powers under
this Credit Agreement and the other Loan Documents as are delegated to
the Agents by the terms hereof or thereof, together with such powers as
are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Credit Agreement are required to be performed by it as a Bank; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
22.3. Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Banks and the
Revolving Credit Commitment Percentage and Term Loan Commitment Percentage of,
and principal amount of the Revolving Credit Loans and the Term Loan owing to,
and Letter of Credit Participations purchased by, the Banks from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Agents and the Banks may treat each Person whose
name is recorded in the Register as a Bank hereunder for all purposes of this
Credit Agreement. The Register shall be available for inspection by the Borrower
and the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Administrative Agent a registration fee in the sum of $3,500.
22.4. New Notes. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Administrative Agent shall (i) record the information
contained therein in the Register, and (ii) give prompt notice thereof to the
Borrower and the Banks (other than the assigning Bank). Within five (5) Business
Days after receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent, in exchange for each
surrendered Note, a new Note to the order of such Eligible Assignee in an amount
equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Bank has retained some portion
of its obligations hereunder, a new Note to the order of the assigning Bank in
an amount equal to the amount retained by it hereunder. Such new Notes shall
provide that they are replacements for the surrendered Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the assigned
Notes. Within five (5) days of issuance of any new Notes pursuant to this
ss.22.4, the Borrower shall deliver an opinion of counsel, addressed to the
Banks and the Agents, relating to the due authorization, execution and delivery
of such new Notes and the legality, validity and binding effect thereof, in form
and substance satisfactory to the Banks. The surrendered Notes shall be
cancelled and returned to the Borrower.
22.5. Participations. Each Bank may sell participations to one or
more banks or other
entities in all or a portion of such Bank's rights and obligations under this
Credit Agreement and the other Loan Documents; provided that (i) each such
participation shall be in an amount of not less than $5,000,000, (ii) any such
sale or participation shall not affect the rights and duties of the selling Bank
hereunder to the Borrower and (iii) the only rights granted to the participant
pursuant to such participation arrangements with respect to waivers, amendments
or modifications of the Loan Documents shall be the rights to approve waivers,
amendments or modifications that would reduce the principal of or the interest
rate on any Loans, extend the term or increase the amount of the Commitments of
such Bank as it relates to such participant, reduce the amount of any commitment
fees or Letter of Credit Fees to which such participant is entitled or extend
any regularly scheduled payment date for principal or interest.
22.6. Disclosure. The Borrower agrees that in addition to disclosures
made in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation.
22.7. Assignee or Participant Affiliated with the Borrower. If any
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank shall
have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Administrative Agent pursuant to ss.16.1
or ss.16.2, and the determination of the Required Banks shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard to
such assignee Bank's interest in any of the Loans or Reimbursement Obligations.
If any Bank sells a participating interest in any of the Loans to a participant,
and such participant is the Borrower or an Affiliate of the Borrower, then such
transferor Bank shall promptly notify the Administrative Agent of the sale of
such participation. A transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the
Administrative Agent pursuant to ss.16.1 or ss.16.2 to the extent that such
participation is beneficially owned by the Borrower or any Affiliate of the
Borrower, and the determination of the Required Banks shall for all purposes of
this Credit Agreement and the other Loan Documents be made without regard to the
interest of such transferor Bank in the Loans or Reimbursement Obligations to
the extent of such participation.
22.8. Miscellaneous Assignment Provisions. Any assigning Bank shall
retain its rights to be indemnified pursuant to ss.19 with respect to any claims
or actions arising prior to the date of such assignment. If any assignee Bank is
not incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its account,
deliver to the Borrower and the Administrative Agent certification as to its
exemption from deduction or withholding of any United States federal income
taxes. If any Reference Bank transfers all of its interest, rights and
obligations under this Credit Agreement, the Administrative Agent shall, in
consultation with the Borrower and with the consent of the Borrower and the
Required Banks, appoint another Bank to act as a Reference Bank hereunder.
Anything contained in this ss.22 to the contrary notwithstanding, any Bank may
at any time pledge all or any portion of its interest and rights under this
Credit Agreement (including all or any portion of its Notes) to any of the
twelve Federal Reserve Banks organized under ss.4 of the Federal Reserve Act, 12
U.S.C. ss.341. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
22.9. Assignment by Borrower. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
23. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by facsimile or and confirmed by delivery via courier or postal service,
addressed as follows:
(a) if to the Borrower, at 2200 Xxxxx Drive, Building 27, X.X. Xxx 00000,
Xxxx Xxxxxxxxxx, XX 00000, Attention: Xxxx Xxxxxxx, Vice President - Legal &
General Counsel, Telecopier No. 000-000-0000, or at such other address for
notice as the Borrower shall last have furnished in writing to the Person giving
the notice;
(b) if to the Administrative Agent, at 000 Xxxx Xxxxxx, Xxxxxx Xxxxxxxx
Division, 0xx Xxxxx, Xxx Xxxx, XX 00000, Telecopier No. 000-000-0000, or such
other address for notice as the Administrative Agent shall last have furnished
in writing to the Person giving the notice;
(c) if to the Documentation Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxx, Vice President, Telecopier No.
000- 000-0000, or such other address for notice as the Syndication Agent shall
last have furnished in writing to the Person giving the notice; and
(d) if to any Bank, at such Bank's address set forth on Schedule 1 hereto,
or such other address for notice as such Bank shall have last furnished in
writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible
officer of the party to which it is directed, at the time of the receipt thereof
by such officer or the sending of such facsimile and (ii) if sent by registered
or certified first-class mail, postage prepaid, on the third Business Day
following the mailing thereof.
24. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). EACH OF THE BORROWER AND EACH GUARANTOR AGREES THAT
ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER OR
SUCH GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN ss.23. EACH OF THE BORROWER
AND EACH GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN
AN INCONVENIENT COURT.
25. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
26. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
27. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in ss.29.
28. WAIVER OF JURY TRIAL.
Each party hereto hereby waives its right to a jury trial with respect
to any action or
claim arising out of any dispute in connection with this Credit Agreement, the
Notes or any of the other Loan Documents, any rights or obligations hereunder or
thereunder or the performance of which rights and obligations. Except as
prohibited by law, the Borrower hereby waives any right it may have to claim or
recover in any litigation referred to in the preceding sentence any special,
exemplary, punitive or consequential damages or any damages other than, or in
addition to, actual damages. The Borrower (i) certifies that no representative,
agent or attorney of any Bank or the Agents has represented, expressly or
otherwise, that such Bank or the Agents would not, in the event of litigation,
seek to enforce the foregoing waivers and (ii) acknowledges that the Agents and
the Banks have been induced to enter into this Credit Agreement, the other Loan
Documents to which it is a party by, among other things, the waivers and
certifications contained herein.
29. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement
to be given by the Banks may be given, and any term of this Credit Agreement,
the other Loan Documents or any other instrument related hereto or mentioned
herein may be amended, and the performance or observance by the Borrower or any
of its Subsidiaries of any terms of this Credit Agreement, the other Loan
Documents or such other instrument or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Borrower and the written consent of the Required Banks. Notwithstanding the
foregoing, the rate of interest on the Notes (other than interest accruing
pursuant to ss.8.9.2 following the effective date of any waiver by the Required
Banks of the Default or Event of Default relating thereto), the amount of the
Commitments of the Banks, and the amount of commitment fee or Letter of Credit
Fees hereunder may not be changed without the written consent of the Borrower
and the written consent of each Bank affected thereby; the Revolving Credit Loan
Maturity Date and the Term Loan Maturity Date and the date of any payment of any
principal, interest or fees hereunder may not be postponed without the written
consent of each Bank affected thereby; all or substantially all of the
Guarantors may not be released from their Obligations under the Guaranty,
Collateral may not be released if after giving effect to such release, and any
additional Collateral substituted in lieu thereof, the Borrower would not be in
compliance with ss.13.4, this ss.29, each other provision hereof specifying that
the Banks are to receive payments "pro rata" or that payments are to be made
"for the respective accounts of the Banks" or in accordance with each Bank's
Revolving Credit Commitment Percentage or Term Loan Commitment Percentage, or
words of similar import, or which specifies the number or percentage of Banks
required to make any determinations, consent to any matter, or waive any rights
hereunder or to modify any provision hereof, and the definition of Required
Banks may not be amended without the written consent of all of the Banks; the
amount of, or timing or order of payment of, the Agency fee, and ss.18 may not
be amended without the written consent of each of the Agents; and the amount of,
or timing or order of payment of, any Fronting Fee and ss.5 may not be amended
without the consent of the Issuing Bank. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agents or any Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.
30. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
31. TRANSITIONAL ARRANGEMENTS.
On the Closing Date, (i) the Existing Revolving Credit Agreement and
the Existing Term Loan Agreement shall be amended and restated as set forth in
this Credit Agreement and the rights and obligations of the parties evidenced by
the Existing Revolving Agreement and the Existing Term Loan Agreement shall be
evidenced by this Credit Agreement and the other Loan Documents and (ii) the
Existing Revolving Credit Loans shall be converted to Revolving Credit Loans
hereunder and the Existing Term Loan shall be converted to the Term Loan
hereunder, without constituting a novation or discharge thereof. All interest,
fees and expenses, if any, owing or accrued under or in respect of the Existing
Revolving Credit Agreement and/or the Existing Term Loan Agreement through the
Closing Date shall be calculated as of the Closing Date (pro rated in the case
of any fractional periods) and shall be paid on the Closing Date. On and as of
the Closing Date, the "Commitments" under, and as defined in each of the
Existing Revolving Credit Agreement and the Existing Term Loan Agreement, shall
be irrevocably cancelled and terminated and the Commitments as defined herein
shall be in effect as set forth herein.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as of the date first set forth above.
HVIDE MARINE INCORPORATED
By:
Title:
SEABULK TRANSMARINE
PARTNERSHIP, LTD., as
Guarantor By its general
partner Seabulk Tankers,
Ltd.
By its general partner Hvide
Marine
Transport, Incorporated
By:
Title:
SEABULK OFFSHORE LTD., as
Guarantor By its general
partner Seabulk Tankers
Ltd.
By its general partner Hvide
Marine Transport, Incorporated
By:
Title:
HVIDE MARINE TRANSPORT,
INCORPORATED, as Guarantor
By:
Title:
SEABULK TANKERS, LTD.,
as Guarantor
By its general partner Hvide Marine
Transport, Incorporated
By:
Title:
SEABULK OFFSHORE HOLDINGS,
INC., as Guarantor
By:
Title:
SEABULK OFFSHORE
INTERNATIONAL, INC., as
Guarantor
By:
Title:
SEABULK OCEAN SYSTEMS
CORPORATION, as Guarantor
By:
Title:
SUN STATE MARINE SERVICES,
INC., as Guarantor
By:
Title:
CITIBANK, N.A., individually and as
Administrative Agent
By:
Title:
BANKBOSTON, N.A., individually
and as Documentation Agent
By:
Title:
BNY FINANCIAL CORPORATION
By:
Title:
HIBERNIA NATIONAL BANK
By:
Title:
AMSOUTH BANK
By:
Title:
FIRST NATIONAL BANK OF
COMMERCE
By:
Title:
THE SUMITOMO BANK, LIMITED
By:
Title:
By:
Title:
CORESTATES BANK, N.A.
By:
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By:
Title:
ABN AMRO BANK, N.V.
By:
Title:
Title:
SUNTRUST BANK,
SOUTH FLORIDA, N.A
By:
Title:
ARAB BANKING CORPORATION (B.S.C.)
By:
Title:
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH
By:
Title:
UNION PLANTERS BANK OF FLORIDA
By:
Title:
SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Title:
SEABULK OFFSHORE OPERATORS,
INC., as Guarantor
By:
Title:
SEABULK OFFSHORE GLOBAL HOLDINGS,
INC., as Guarantor
By:
Title:
TAMPA BAY TOWING, INC., as
By:
Title:
