EXHIBIT 10.2
SECOND AMENDED AND RESTATED
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REVOLVING CREDIT AGREEMENT
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This SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT, amended and
restated as of March 13, 1998 is by and among (a) TRICO MARINE OPERATORS, INC.
("Marine Operators"), a Louisiana corporation having its principal place of
business and chief executive office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, TRICO MARINE ASSETS, INC. ("Marine Assets"), a Delaware
corporation having its principal place of business and chief executive office at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (each of Marine Operators and
Marine Assets, a "Borrower", and, collectively, the "Borrowers"), (b) TRICO
MARINE SERVICES, INC. (the "Parent"), a Delaware corporation having its
principal place of business and chief executive office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (c) the financial institutions listed on Schedule
1.1 hereto and such other financial institutions as may become parties to this
Agreement from time to time in accordance with the terms hereof, and (d)
BANKBOSTON, N.A. as agent for itself and such financial institutions (the
"Agent").
WHEREAS, pursuant to an Amended and Restated Revolving Credit and Term Loan
Agreement, dated as of December 1, 1997 (the "Existing Credit Agreement") among
Marine Operators, Marine Assets, the Parent, Saevik Shipping AS, a Norwegian
limited liability company having its registered office at Fosnavag, Norway
("Saevik Shipping"), Trico Marine International Holdings B.V., a private company
with limited liability under the laws of the Netherlands having its registered
office at Rotterdam, the Netherlands ("Trico B.V."), the banks party thereto
(the "Existing Banks") and the Agent, the Existing Banks and the Agent have made
loans to, and otherwise extended credit to Marine Operators, Marine Assets and
Trico B.V.;
WHEREAS, Saevik Shipping is not a party to the Existing Credit Agreement
although it was intended that Saevik Shipping would become a party thereto and
would be extended Loans thereunder;
WHEREAS, Trico B.V. has no Outstanding Loans under the Existing Credit
Agreement;
WHEREAS, Marine Operators, Marine Assets, the Parent, Trico B.V., the
Existing Banks and the Agent have agreed that Saevik Shipping and Trico B.V.
will no longer be parties to the Second Amended and Restated Revolving Credit
Agreement;
WHEREAS, Marine Operators, Marine Assets and the Parent have requested that
the Existing Banks and the Agent amend and restate the Existing Credit Agreement
as set forth herein; and
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WHEREAS, the Existing Banks and the Agent have agreed, subject to the terms
and conditions set forth herein, to amend and restate the Existing Credit
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree that, on and as of the Closing
Date, the Existing Credit Agreement shall be amended and restated in its
entirety as set forth herein and shall remain in full force and effect only as
provided herein:
(S)1. DEFINITIONS AND RULES OF INTERPRETATION.
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(S)1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this (S)1 or elsewhere in the provisions of this Agreement referred to
below:
Adjusted Outstandings. With respect to any fiscal period, an amount equal
to ten percent (10%) of the average daily amount of Loans Outstanding on each
day during such period.
Adjustment Date. The first day of the month immediately following the
month in which a Compliance Certificate is delivered by the Borrowers pursuant
to (S)8.4(c) hereof.
Affiliate. Any Person that directly or indirectly controls, is controlled
by or under common control with another Person. A Person shall be deemed to
control another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock, by
contract or otherwise.
Agent. As defined in the introductory paragraph hereof.
Agreement. This Second Amended and Restated Revolving Credit Agreement,
including the Schedules and Exhibits hereto.
Applicable Margin. (a) With respect to any Base Rate Loan or
Eurocurrency Rate Loan and 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 margin per
annum set forth below corresponding to the Leverage Ratio calculated on a Pro
Forma Basis, if applicable, as of the last day of the fiscal quarter to which
the Compliance Certificate corresponding to such Adjustment Date relates:
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Base Rate Eurocurrency Rate
Level Leverage Ratio Loans Loans
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I greater than or equal to 3.0:1.0 0.25% 1.75%
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II greater than or equal to 2.5:1.0 and less than
3.0:1.0 0% 1.50%
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III greater than or equal to 2.0:1.0 and less than 2.5:1.0 0% 1.25%
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IV less than 2.0:1.0 0% 1.00%
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In the event that the Parent's long term senior unsecured debt rating (i) as
assigned by Standard & Poor's Ratings Group is "B" or lower or (ii) as assigned
by ▇▇▇▇▇'▇ Corporation is "B2" or lower, or in the event that no such senior
secured debt or corporate credit rating has been assigned, then the Applicable
Margin for all Base Rate Loans and Eurocurrency Rate Loans for all Levels set
forth in the table above shall increase by 0.25% with effect from the date such
rating is assigned and at all times thereafter until the Parent's long term
senior unsecured debt rating (i) as assigned by Standard & Poor's Ratings Group
is "B+" or higher and (ii) as assigned by ▇▇▇▇▇'▇ Corporation is "B1" or higher.
(b) Notwithstanding the foregoing, the Applicable Margin for each Loan
shall be the Applicable Margin for Level II set forth in the table above until
the Adjustment Date next following the delivery to the Banks of the financial
statements of the Parent and its Subsidiaries (and the corresponding Compliance
Certificate relating thereto) for the fiscal quarter of the Parent ending on
June 30, 1998.
(c) If the Borrowers shall fail to deliver any Compliance Certificate
pursuant to (S)8.4(c) hereof, then, for the period commencing on the date such
Compliance Certificate was due pursuant to (S)8.4(c) through the Adjustment Date
immediately following the date on which such Compliance Certificate is
delivered, the Applicable Margin for each Base Rate Loan or Eurocurrency Rate
Loan shall be that corresponding to Level I in the table above.
Assignment and Acceptance. See (S)19.1 hereof.
Balance Sheet Date. December 31, 1996.
BankBoston. BankBoston, N.A. in its individual capacity.
Banks. BankBoston, N.A. and the other lending institutions listed on
Schedule 1.1 hereto and any other Person who becomes an assignee of any rights
and obligations of a Bank pursuant to (S)19 hereof.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by BankBoston at its head office in Boston, Massachusetts, as its
"base rate" for borrowings in Dollars and (b) 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 in
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Dollars 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 Agent from
three funds brokers of recognized standing selected by the Agent.
Base Rate Loan. Any Loan or portion thereof bearing interest calculated by
reference to the Base Rate.
Borrowers. As defined in the preamble hereto.
Business Day. Any day on which banking institutions in Boston,
Massachusetts, and New Orleans, Louisiana are open for the transaction of
banking business and, with respect to a Eurocurrency Rate Loan, also a day which
is a Eurocurrency Business Day.
Capital Assets. Fixed assets, both tangible (such as vessels, land,
buildings, fixtures, machinery and equipment) and intangible (such as patents,
copyrights, trademarks, franchises and good will); provided that Capital Assets
shall not include any item customarily charged directly to expense or
depreciated over a useful life of twelve (12) months or less in accordance with
generally accepted accounting principles.
Capital Expenditures. Amounts paid or indebtedness incurred by a Person in
connection with the purchase or lease by such Person of Capital Assets that
would be required to be capitalized and shown on the balance sheet of such
Person in accordance with generally accepted accounting principles.
Capitalized Leases. Leases under which a Person is the lessee or obligor,
the discounted future rental payment obligations under which are required to be
capitalized on the balance sheet of the lessee or obligor in accordance with
generally accepted accounting principles.
CERCLA. See (S)7.18 hereof.
Closing Date. The first date on which the conditions set forth in (S)11
have been satisfied, which in no event shall be later than March 20, 1998.
Code. The Internal Revenue Code of 1986, as amended.
Collateral. Those Vessels and other property, rights and interests of the
Borrowers that are or are intended to be subject to the security interests and
mortgages created by the Security Documents.
Commitment. With respect to each Bank, the amount set forth on Schedule
1.1 attached hereto as the amount of such Bank's commitment to make Loans to,
and to participate in the issuance, extension and renewal of Letters of Credit
for the account of the Borrowers, as the
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same may be reduced from time to time; or if such commitment is terminated
pursuant to the provisions hereof, zero.
Commitment Fee. See (S)2.2.
Commitment Fee Rate. (a) For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Commitment Fee Rate shall be the rate per annum set
forth below corresponding to the Leverage Ratio calculated on a Pro Forma Basis,
if applicable, as of the last day of the fiscal quarter to which the Compliance
Certificate corresponding to such Adjustment Date relates:
Commitment Fee
Level Leverage Ratio Rate
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I greater than or equal to 3.0:1.0 0.500%
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II greater than or equal to 2.5:1.0 and less than 3.0:1.0 0.375%
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III greater than or equal to 2.0:1.0 and less than 2.5:1.0 0.375%
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IV less than 2.0:1.0 0.250%
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(b) Notwithstanding the foregoing, the Commitment Fee Rate shall be the
Commitment Fee Rate for Level II set forth in the table above until the
Adjustment Date next following the delivery to the Banks of the financial
statements of the Parent and its Subsidiaries (and the corresponding Compliance
Certificate relating thereto) for the fiscal quarter of the Parent ending on
June 30, 1998.
(c) If the Borrowers shall fail to deliver any Compliance Certificate
pursuant to (S)8.4(c) hereof, then, for the period commencing on the date such
Compliance Certificate was due pursuant to (S)8.4(c) through the Adjustment Date
immediately following the date on which such Compliance Certificate is
delivered, the Commitment Fee Rate shall be that corresponding to Level I in the
table above.
Commitment Percentage. With respect to each Bank, the amount set forth on
Schedule 1.1 attached hereto as such Bank's percentage of the Total Commitment.
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Parent and its
Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
Consolidated EBITDA. For any period, the consolidated Net Income of the
Parent and its Subsidiaries for such period, after all expenses and other proper
charges, but before payment or provision for any income taxes, interest expense,
depreciation or amortization for such period, determined on a consolidated basis
for such Persons in accordance with generally accepted accounting principles.
Consolidated Net Tangible Assets. With respect to the Parent and its
Restricted Subsidiaries and as at any date, the sum of the amounts that would
appear on a consolidated
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balance sheet of the Parent and its Restricted Subsidiaries as the total assets
of the Parent and its Restricted Subsidiaries, determined on a consolidated
basis for such Persons in accordance with generally accepted accounting
principles and after deducting therefrom, (a) to the extent otherwise included,
unamortized debt discount and expenses and other unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, copyrights, licenses,
organization or development expenses and other intangible items and (b) the
aggregate amount of liabilities of the Parent and its Restricted Subsidiaries
which may properly be classified as current liabilities (including tax accrued
as estimated), determined on a consolidated basis for such Persons in accordance
with generally accepted accounting principles.
Consolidated Total Interest Expense. For any period, the aggregate amount
of interest required to be paid or accrued by the Parent and its Subsidiaries
during such period on all Indebtedness of the Parent and its Subsidiaries
outstanding during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized, including
payments consisting of interest in respect of any Capitalized Lease, and
including commitment fees, agency fees, facility fees, balance deficiency fees
and similar fees or expenses in connection with the borrowing of money.
Conversion Request. A notice given by the Borrowers to the Agent of such
Borrower's election to convert a Loan to a Loan of another Type or to continue a
Loan as a Loan of a certain Type, in each case in accordance with (S)2.8.
Debt Service Coverage Ratio. As at the end of any fiscal quarter, the
ratio of (a) the consolidated Operating Cash Flow of the Parent and its
Subsidiaries for the period of the four (4) consecutive fiscal quarters of the
Parent ending on such date to (b) consolidated Total Debt Service of the Parent
and its Subsidiaries for the period of four (4) consecutive fiscal quarters of
the Parent ending on such date; provided, that for purposes of calculating the
Debt Service Coverage Ratio for the fiscal quarter of the Borrower ending on (i)
March 31, 1998, consolidated Operating Cash Flow and Total Debt Service shall be
the consolidated Operating Cash Flow and Total Debt Service for the fiscal
quarter then ending, (ii) June 30, 1998, consolidated Operating Cash Flow and
Total Debt Service shall be the consolidated Operating Cash Flow and Total Debt
Service for the period of the two fiscal quarters then ending, and (iii)
September 30, 1998, consolidated Operating Cash Flow and Total Debt Service
shall be the consolidated Operating Cash Flow and Total Debt Service for the
period of the three fiscal quarters then ending.
Default. See (S)13 hereof.
Delinquent Bank. See (S)15.5.3 hereof.
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of capital stock of any Person, other than dividends
payable solely in shares of common stock of such Person; the purchase,
redemption, or other retirement of any shares of any class of capital stock of
any Person, directly or indirectly through a Subsidiary of such Person or
otherwise; the return of capital by any Person to its shareholders as such; or
any other distribution on or in respect of any shares of any class of capital
stock of such Person.
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Dollars or $. Dollars in lawful currency of the United States of America.
Drawdown Date. The date on which any Loan is made or is to be made, and
the date on which all or any portion of any Loan is converted or continued in
accordance with (S)2.8.
Eligible Assignee. Any of (a) a commercial bank or finance company
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; (b) 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; (c) 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; (d) the central
bank of any country which is a member of the OECD; and (e) if, but only if, an
Event of Default has occurred and is continuing, any other bank, insurance
company, commercial finance company or other financial institution approved by
the Agent, such approval not to be unreasonably withheld, provided, in each
case, that such entity is a citizen of the United States within the meaning of
Section 2 of the Shipping Act of 1916, as amended.
Employee Benefit Plan. Any employee benefit plan within the meaning of
(S)3(2) of ERISA maintained or contributed to by a Borrower or the Parent or any
ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See (S)7.18(a) hereof.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with a
Borrower or the Parent under (S)414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of (S)4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency 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 Agent in its
sole discretion acting in good faith.
Eurocurrency Lending Office. Initially, the Agent's head office;
thereafter, such other office of the Agent, if any, that shall be making or
maintaining Eurocurrency Rate Loans.
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Eurocurrency Rate. For any Interest Period with respect to a
Eurocurrency Rate Loan, the rate of interest equal to (a) the rate per annum
(rounded upwards to the nearest 1/16 of one percent) at which the Agent's
Eurocurrency Lending Office is offered Dollar deposits two (2) Eurocurrency
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 Eurocurrency Lending Office are customarily conducted at or
about 10:00 a.m., Boston time, 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 Eurocurrency Rate Loan to which such Interest Period applies,
divided by (b) a number equal to 1.00 minus the Eurocurrency Reserve Rate, if
applicable.
Eurocurrency Rate Loans. Loans or any portion thereof bearing interest
calculated by reference to the Eurocurrency Rate.
Eurocurrency Reserve Rate. For any day with respect to any Eurocurrency
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.
Event of Default. See (S)13 hereof.
Existing Banks. As defined in the preamble hereto.
Existing Credit Agreement. As defined in the preamble hereto.
Fee Letter. That certain letter agreement, dated as of November 26, 1997,
between the Parent and the Agent, as the same may be amended, supplemented,
modified or restated and in effect from time to time.
Funded Debt. Without duplication and with respect to any Person and as at
any date of determination, the aggregate principal amount of Indebtedness of
such Person for borrowed money (other than short-term trade credit incurred in
the ordinary course of business), the deferred purchase price of assets (other
than short-term trade credit incurred in the ordinary course of business),
Reimbursement Obligations (contingent or otherwise) in respect of Letters of
Credit, and Capitalized Leases.
Generally accepted accounting principles. (a) When used in (S)10, whether
directly or indirectly through reference to a capitalized term used therein,
means principles that are consistent with the principles promulgated or adopted
by the Financial Accounting Standards Board and its predecessors in effect on
the Balance Sheet Date and (b) when used in general, other than as provided
above, means such principles as in effect from time to time.
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Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of (S)3(2) of ERISA maintained or contributed to by a Borrower or the
Parent 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.
Guaranties. Collectively, the Parent Guaranty and any other guaranty of
any of the Obligations hereunder from the Parent or any of its Subsidiaries to
the Agent for the benefit of the Banks.
Guarantors. Collectively, the Parent and each other Subsidiary (direct and
indirect) of the Parent which shall deliver a guaranty of the Obligations
pursuant to (S)8.14 hereof.
Indebtedness. As to any Person, without duplication, all obligations,
contingent and otherwise, that in accordance with generally accepted accounting
principles should be classified upon the obligor's balance sheet as liabilities,
or to which reference should be made by footnotes thereto, including in any
event and whether or not so classified: (a) all debt and similar monetary
obligations, whether direct or indirect; (b) all liabilities secured by any
mortgage, pledge, security interest, lien, charge, or other encumbrance existing
on property owned or acquired subject thereto, whether or not the liability
secured thereby shall have been assumed; and (c) all guarantees, endorsements
and other contingent obligations whether direct or indirect in respect of
indebtedness of others, including any obligation to supply funds to or in any
manner to invest in, directly or indirectly, the debtor, to purchase
indebtedness, or to assure the owner of indebtedness against loss, through an
agreement to purchase goods, supplies, or services for the purpose of enabling
the debtor to make payment of the indebtedness held by such owner or otherwise,
and the obligations, contingent and otherwise, to reimburse the issuer in
respect of any letters of credit.
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. (S)24, Seventh), as amended.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of the
calendar quarter commencing with the calendar quarter that includes the Drawdown
Date thereof; and (b) as to any Eurocurrency Rate Loan in respect of which the
Interest Period is (i) three (3) months or less, the last day of such Interest
Period and (ii) more than three (3) months, the date that is three (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 Loan, (a) 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 Borrowers in a Loan Request
(i) for any Base Rate Loan, the last day of the calendar quarter; and (ii) for
any Eurocurrency Rate Loan, 1, 2, 3, or 6 months; and (b) thereafter, each
period commencing on the last day of the next preceding Interest Period
applicable to such Loan and ending on the last day of one of the periods set
forth above, as
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selected by the Borrowers 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 Eurocurrency Rate Loan
would otherwise end on a day that is not a Eurocurrency Business Day, that
Interest Period shall be extended to the next succeeding Eurocurrency
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 Eurocurrency 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 Borrowers shall fail to give notice as provided in (S)2.8,
the Borrowers shall be deemed to have requested a conversion of the
affected Eurocurrency Rate Loan to a Base Rate Loan, and the continuance of
all Base Rate Loans as Base Rate Loans, as the case may be, on the last day
of the then current Interest Period with respect thereto;
(d) any Interest Period that begins on the last Eurocurrency 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 Eurocurrency Business Day of a calendar month; and
(e) any Interest Period relating to any Eurocurrency Rate Loan that
would otherwise extend beyond the Maturity Date shall end on the 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: (a) 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; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) 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); and (d) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.
Letter of Credit. See (S)3.1.1.
Letter of Credit Application. See (S)3.1.1.
Letter of Credit Fee(s). See (S)3.6.
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Letter of Credit Participation. See (S)3.1.4.
Letter of Credit Rate. At any time of determination, the Applicable Margin
on Eurocurrency Rate Loans in effect at such time.
Leverage Ratio. As at the end of any fiscal quarter, the ratio, determined
for each fiscal quarter ending through September 30, 1998, on a pro forma basis
after giving effect to the Takeover as if it had occurred on the first day of
the four quarter period ending on such date, of (a) the consolidated Funded Debt
of the Parent and its Subsidiaries at the end of the fiscal quarter of the
Parent ending on such date to (b) Consolidated EBITDA of the Parent and its
Subsidiaries for the period of four (4) consecutive fiscal quarters of the
Parent ending on such date; provided, that for purposes of calculating the
Leverage Ratio on (i) March 31, 1998, Consolidated EBITDA shall be Consolidated
EBITDA of the Parent and its Subsidiaries on a pro forma basis for the period
of two fiscal quarters ending March 31, 1998, multiplied by 2, and (ii) June 30,
1998, Consolidated EBITDA shall be Consolidated EBITDA of the Parent and its
Subsidiaries on a pro forma basis for the period of three fiscal quarters then
ending multiplied by 4/3; provided, however, when calculating the Leverage Ratio
for any Test Period in which a Triggering Acquisition occurred, the calculation
of the Leverage Ratio shall be made on a Pro Forma Basis.
Loan Documents. Collectively, this Agreement, the Notes, the Letter of
Credit Applications, the Letters of Credit, the Security Documents, and the Fee
Letter.
Loan Request. See (S)2.6 hereof.
Loans. Loans made or to be made by the Banks to the Borrowers pursuant to
(S)2 hereof.
Majority Banks. As of any date, the Banks holding at least fifty-one
percent (51%) of the outstanding principal amount of the Notes on such Date; and
if no such principal is outstanding, the Banks whose aggregate Commitment
Percentages on such date together constitute at least fifty-one percent (51%) of
the Total Commitment.
Marine Assets. As defined in the preamble.
Marine Operators. As defined in the preamble.
Maturity Date. December 1, 2002.
Maximum Drawing Amount. The sum of the maximum aggregate amount from time
to time that the beneficiaries may 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 (S)3(37)
of ERISA maintained or contributed to by a Borrower, the Parent or any ERISA
Affiliate.
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Net Income. The consolidated net income (or deficit) of the Parent and its
Subsidiaries, after deduction of all expenses, taxes and other proper charges,
determined in accordance with generally accepted accounting principles, after
eliminating therefrom all extraordinary nonrecurring items of income or loss.
Net Worth. With respect to any Person, the excess of Total Assets over
Total Liabilities, less to the extent otherwise includable in the computation of
Net Worth, any subscriptions receivable.
Notes. See (S)2.4.
Obligations. All indebtedness, obligations and liabilities of any of the
Parent, the Borrowers or the Guarantors to any of the Banks and the Agent,
individually or collectively, existing on the date of this 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
Agreement or the other Loan Documents or in respect of any of the Loans made or
Reimbursement Obligations incurred or any other instruments at any time
evidencing any thereof.
OECD. See the definition of "Eligible Assignee".
Operating Cash Flow. With respect to any Person and any particular fiscal
period, an amount equal to (a) such Person's Net Income for such period, plus
(b) all interest expense for such period, plus (c) all income tax expense for
such period, plus (d) all depreciation and amortization charges for such period,
less (e) without duplication, the aggregate amount of cash taxes paid by such
Person with respect to such period, less (f) that portion of Capital
Expenditures made by such Person during such period for the maintenance, repair,
or dry-docking of, and inspection costs relating to, Capital Assets.
Outstanding. With respect to any Loan, the aggregate unpaid principal
thereof as of any date of determination.
Parent Guaranty. The guaranty agreement dated as of the Closing Date, from
the Parent to the Agent and each of the Banks, as amended, supplemented,
modified or restated with the consent of the Banks and in effect from time to
time.
PBGC. The Pension Benefit Guaranty Corporation created by (S)4002 of ERISA
and any successor entity or entities having similar responsibilities.
Perfection Certificates. The Perfection Certificates as defined in the
Security Agreement.
Permitted Liens. Liens, security interests and other encumbrances
permitted by (S)9.2 hereof.
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Person. Any individual, corporation, partnership, limited partnership,
limited liability company, limited liability partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Pro Forma Basis. Following a Triggering Acquisition, the calculation of
the Funded Debt and EBITDA components of the Leverage Ratio for the fiscal
quarter in which such Triggering Acquisition occurred and each of the three
fiscal quarters immediately following such Triggering Acquisition with reference
to the audited historical financial results of the Person, business, division or
group of assets acquired in such Triggering Acquisition (or if such audited
historical financial results are not available, such management prepared
financial statements as are reasonably acceptable to the Agent) and the Parent
and its Subsidiaries for the applicable Test Period after giving effect on a pro
forma basis to such Triggering Acquisition and assuming that such Triggering
Acquisition had been consummated at the beginning of such Test Period. 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 Triggering Acquisition as may be approved by the
Agent in writing (which approval shall not be unreasonably withheld) shall also
be deemed to have been realized on the first day of the Test Period.
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.
Reimbursement Obligation. The Borrowers' obligation to reimburse the Agent
and the Banks on account of any drawing under any Letter of Credit as provided
in (S)3.2.
Restricted Subsidiary. A Subsidiary of the Parent designated as a
"Restricted Subsidiary" under the Indentures relating to the Senior Notes.
Saevik Supply. Saevik Supply ASA, a Norwegian public joint stock company
(registration number 976853938) and a Subsidiary of the Parent.
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 Agreement. The Second Amended and Restated Security Agreement
dated as of the Closing Date among the Borrowers and the Agent, as the same may
be amended, supplemented, modified or restated and in effect from time to time.
Security Documents. The Security Agreement, the Vessel Mortgages, the
Guaranties, all guaranties delivered to the Agent and the Banks pursuant to
(S)8.14 hereof, and all instruments and documents required to be delivered
pursuant thereto, in each case, as the same may be amended and in effect from
time to time.
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Senior Notes. The 8 1/2% Senior Notes due 2005 of the Parent, in an
aggregate principal amount not to exceed $280,000,000, guaranteed by the
Borrowers and issued pursuant to such documentation as shall have been
previously delivered to, and approved by, the Agent.
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 or other voting equity interests.
SWATH Subsidiary. Trico Marine International, Inc., the special purpose
Subsidiary of the Parent which was formed for the purpose of the ownership and
operation of the SWATH Vessel.
SWATH Vessel. The small waterline area twin hull crew boat to be built for
the SWATH Subsidiary.
Takeover. The purchase by Trico Marine International Holdings B.V., a
Subsidiary of the Parent, of all of the share capital of Saevik Supply.
Test Period. The period of four (4) fiscal quarters included in any
calculation of the Leverage Ratio.
Total Assets. All assets of a Person determined in accordance with
generally accepted accounting principles.
Total Commitment. The sum of the Commitments of the Banks as in effect
from time to time.
Total Debt Service. For any fiscal period of any Person, an amount equal
to (a) the Total Financial Obligations of such Person for such period plus (b)
the Total Interest Expense of such Person for such period, plus (c) Adjusted
Outstandings of such Person for the fiscal quarter of the Borrowers most
recently ended, in each case determined in accordance with generally accepted
accounting principles consistently applied.
Total Financial Obligations. With respect to any fiscal period and any
Person, an amount equal to the sum of all principal payments (including the
principal portion of Capitalized Lease payments) on Funded Debt that become due
and payable or that are to become due and payable during such fiscal period
pursuant to any agreement or instrument to which such Person is a party. Demand
obligations shall be deemed to be due and payable during any fiscal period
during which such obligations are outstanding.
Total Interest Expense. For any period and with respect to any Person, the
aggregate amount of interest required to be paid in cash by such Person during
such period on all Indebtedness of such Person outstanding during all or any
part of such period, whether such interest was or is required to be reflected as
an item of expense or capitalized, including
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payments consisting of interest in respect of Capitalized Leases and including
commitment fees, agency fees, facility fees and similar fees or expenses in
connection with the borrowing of money, but, with respect to the Borrowers,
excluding the Closing Fee.
Total Liabilities. All liabilities of any Person determined in accordance
with generally accepted accounting principles.
Triggering Acquisition. The acquisition by the Parent, the Borrower or any
of its Subsidiaries of any Person, business, division or specified group of
assets after the Closing Date involving consideration paid or to be paid by the
Parent, the Borrower and its Subsidiaries (including assumption of liabilities)
in one or a series of transactions in excess of $10,000,000.
Type. As to any Loan, its nature as a Base Rate Loan or a Eurocurrency
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 thereof adopted by the
Agent 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 Borrowers do not reimburse the Agent and the Banks on the date specified in,
and in accordance with, (S)3.2.
US Flag Vessels. See (S)7.24(a).
US Vessel Mortgage. The Second Amended and Restated First Preferred Fleet
Mortgage with respect to certain of the US Flag Vessels, dated as of the Closing
Date, as may be further amended, supplemented, modified or restated and in
effect from time to time.
Vessel Mortgages. Collectively, the US Vessel Mortgage and any other
vessel mortgage from either of the Borrowers or any other Subsidiary of the
Parent to the Agent for the benefit of any of the Banks.
Vessel(s). Collectively, all vessels owned by either of the Borrowers,
from time to time, including, without limitation those vessels listed on
Schedules 7.24(a), and individually, any of such vessels.
(S)1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this 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
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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
Massachusetts, have the meanings assigned to them therein, (h) reference to a
particular "(S)" refers to that section of this Agreement unless otherwise
indicated, (i) the words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement, and (j) the phrase "jointly and
severally" as used herein shall mean, for purposes of Louisiana law, "jointly
and severally and solidarily".
(S)2. THE REVOLVING CREDIT FACILITY.
(S)2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Agreement, each of the Banks severally agrees to lend to the Borrowers
and the Borrowers may borrow, repay, and reborrow from time to time between the
Closing Date and the Maturity Date upon notice by the Borrowers to the Agent
given in accordance with (S)2.6, such sums as are requested by the Borrowers up
to a maximum aggregate principal amount outstanding (after giving effect to all
amounts requested) at any one time equal to such Bank's Commitment, minus such
Bank's Commitment Percentage of the sum of the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations; provided that after giving effect to all
amounts requested (i) the sum of the outstanding amount of the Loans plus the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall not at any
time exceed the lesser of (a) the Total Commitment and (b) the amount to which
the Borrowers' secured Obligations are limited as set forth in the proviso
contained in (S)6 hereof; and (ii) the Borrowers are in compliance with the
covenant contained in (S)10.4 hereof. The Loans shall be made pro rata in
accordance with each Bank's Commitment Percentage. Each request for a Loan
hereunder shall constitute a representation and warranty by the Borrowers that
the conditions set forth in (S)11 and (S)12 hereof, in the case of the initial
Loans to be made on the Closing Date, and (S)12 hereof, in the case of all other
Loans, have been satisfied on the date of such request. The parties hereto
hereby agree that, on and as of the Closing Date, the loans outstanding under
the Existing Credit Agreement shall become Loans hereunder.
(S)2.2. COMMITMENT FEE. The Borrowers hereby jointly and severally agree
to pay to the Agent for the accounts of the Banks in accordance with their
respective Commitment Percentages a commitment fee (the "Commitment Fee") at the
applicable Commitment Fee Rate per annum on the average daily amount during each
calendar quarter or portion thereof from Closing Date to the Maturity Date by
which the Total Commitment exceeds the sum of the outstanding principal amount
of Loans, plus the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations. The Commitment Fee shall be payable quarterly in arrears on the
last day of each calendar quarter for the immediately preceding calendar quarter
commencing on the first such date following the Closing Date, with a final
payment on the Maturity Date or any earlier date on which the Commitments shall
terminate.
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(S)2.3. REDUCTION OF COMMITMENTS.
(a) The Borrowers shall have the right at any time and from time to time on
or before the Maturity Date upon five (5) Business Days' prior written notice to
the Agent to reduce by $10,000,000 or a larger integral multiple of $5,000,000
or terminate entirely the unborrowed portion of the Total Commitment, whereupon
the Commitments of the Banks shall be reduced pro rata in accordance with their
respective Commitment Percentages of the amount specified in such notice or, as
the case may be, terminated. Promptly after receiving any notice of the
Borrowers delivered pursuant to this (S)2.3(a), the Agent will notify the Banks
of the substance thereof. Upon the effective date of any such reduction or
termination, the Borrowers shall pay to the Agent for the respective accounts of
the Banks the full amount of any Commitment Fee then accrued on the amount of
the reduction, provided that so long as the Total Commitment is not terminated
entirely, the Borrowers may pay any such accrued Commitment Fee on the last
Business Day of the then-current fiscal quarter.
(b) No reduction or termination of the Total Commitment once made may be
revoked; the portion of the Total Commitment reduced or terminated may not be
reinstated; and amounts in respect of such reduced or terminated portion may not
be reborrowed.
(c) Promptly after the effectiveness of any partial reduction in the Total
Commitment pursuant to this (S)2.3, the Agent shall distribute to each Bank an
updated Schedule 1.1 reflecting such reduction.
(S)2.4. THE NOTES.
The Loans shall be evidenced by separate amended and restated promissory
notes of the Borrowers in substantially the form of Exhibit A hereto (each a
"Note"), dated as of the Closing Date and completed with appropriate insertions.
One Note shall be payable to the order of each Bank in a principal amount equal
to such Bank's Commitment or, if less, the outstanding amount of all Loans made
by such Bank, plus interest accrued thereon, as set forth below. The Borrowers
irrevocably authorize each Bank to make or cause to be made, at or about the
time of the Drawdown Date of any Loan or at the time of receipt of any payment
of principal on such Bank's Note, an appropriate notation on such Bank's Record
with respect to such Note reflecting the making of such Loan or (as the case may
be) the receipt of such payment. The outstanding amount of the Loans set forth
on such Bank's Record with respect to such Note 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 Record
shall not limit or otherwise affect the joint and several obligations of the
Borrowers hereunder or under any Note to make payments of principal of or
interest on any Note when due.
(S)2.5. INTEREST ON LOANS. Except as otherwise provided in (S)5.8 hereof,
(a) Each Loan shall bear interest at the rate per annum equal to (i) the
Base Rate plus the Applicable Margin then applicable to Base Rate Loans, in the
case of Loans that are Base Rate
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Loans, and (ii) the Eurocurrency Rate plus the Applicable Margin then applicable
to Eurocurrency Rate Loans, in the case of Loans that are Eurocurrency Rate
Loans.
(b) The Borrowers jointly and severally promise to pay interest on the
outstanding amount of the Loans on each Interest Payment Date with respect
thereto.
(c) Any change in the interest rate resulting from a change in the Base
Rate is to be effective at the beginning of the day of such change in the Base
Rate. The Agent will give the Banks and the Borrowers prompt notice in writing
of any change in the Base Rate.
(S)2.6. REQUESTS FOR LOANS. The Borrowers shall give to the 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 Loan requested hereunder (a
"Loan Request") no less than (a) one (1) Business Day prior to any Drawdown Date
of any Loan that is a Base Rate Loan or (b) three (3) Eurocurrency Business Days
prior to any Drawdown Date of any Loan that is a Eurocurrency Rate Loan. Each
such notice shall specify (i) the principal amount of the Loan requested, (ii)
the proposed Drawdown Date of such Loan, (iii) the Interest Period for such
Loan, and (iv) the Type of such Loan. Promptly upon receipt of any such notice,
the Agent shall notify each of the Banks thereof. Each such notice shall be
irrevocable and binding on the Borrowers and shall obligate the Borrowers to
accept the Loan requested from the Banks on the proposed Drawdown Date thereof.
Each Loan Request shall be in a minimum aggregate amount of $2,000,000 or a
larger integral multiple of $250,000.
(S)2.7. LOANS TO COVER REIMBURSEMENT OBLIGATIONS. Notwithstanding the
notice and minimum amount requirements set forth in (S)2.6, the Agent shall,
unless otherwise instructed by the Majority Banks and subject to the
satisfaction of the conditions set forth herein, make Loans to the Borrowers on
the date that any draft presented under any Letter of Credit is honored by the
Agent, or any date on which the Agent otherwise makes a payment with respect
thereto in an amount sufficient to pay in full the obligations of the Borrowers
under (S)3.2 in respect of the honor of such draft or the making of such
payment. The Borrowers hereby request and authorize the Agent to make from time
to time such Loans by means of appropriate entries in the books and records of
the Agent and to notify the Banks of the date and amount of any such Loans. The
Borrowers acknowledge and agree that the making of such Loans shall, in each
case, be subject in all respects to the provisions of this Agreement as if they
were Loans requested pursuant to a Loan Request, including the limitations set
forth in (S)2.1 and the requirement that the applicable provisions of (S)12 be
satisfied. Absent manifest error on the part of the Agent, all actions taken by
the Agent pursuant to the provisions of this (S)2.7 shall be conclusive and
binding on the Borrowers. Loans made pursuant to this (S)2.7 shall be Base Rate
Loans (subject to conversion pursuant to (S)2.8 hereof) and shall bear interest
at the rate provided for Loans in (S)2.5(a) hereof. Each of the Banks hereby
acknowledges and agrees that a Loan made by the Agent pursuant to this (S)2.7
shall (i) be subject in all respects to the provisions of this Agreement
(including, without limitation, (S)2.9 hereof) and (ii) obligate each Bank to
advance to the Agent the amount of such Bank's Commitment Percentage of such
Loan.
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(S)2.8. ELECTION OF EUROCURRENCY RATE; NOTICE OF ELECTION; INTEREST
PERIODS; MINIMUM AMOUNTS.
(a) At the Borrowers' option, so long as no Event of Default has occurred
and is then continuing, the Borrowers may (i) elect to convert any Base Rate
Loan or a portion thereof to a Eurocurrency Rate Loan, (ii) at the time of any
Loan Request specify that such requested Loan shall be a Eurocurrency Rate Loan,
or (iii) upon expiration of the applicable Interest Period, elect to maintain an
existing Eurocurrency Rate Loan as such, provided in each case that the
Borrowers shall give notice thereof to the Agent pursuant to (S)2.8(b). Upon
determining any Eurocurrency Rate, the Agent shall forthwith provide notice
thereof to the Borrowers and the Banks, and each such notice to the Borrowers
shall be considered prima facie correct and binding, absent manifest error.
(b) Three (3) Eurocurrency Business Days prior to the making of any
Eurocurrency Rate Loan or the conversion of any Base Rate Loan to a Eurocurrency
Rate Loan, or, in the case of an outstanding Eurocurrency Rate Loan, the
expiration date of the applicable Interest Period, the Borrowers shall give
written notice to the Agent, not later that 12:00 noon (Boston time) of their
election pursuant to (S)2.8(a). Each such notice delivered to the Agent shall
specify the aggregate principal amount of applicable Loans to be borrowed or
maintained as or converted to Eurocurrency Rate Loans and the requested duration
of the Interest Period that will be applicable to such Eurocurrency Rate Loan,
and shall be irrevocable and binding upon the Borrowers. If the Borrowers shall
fail to give the Agent notice of their election hereunder, together with all of
the other information required by this (S)2.8(b), with respect to any Loan,
whether at the end of an Interest Period or otherwise, such Loan shall be deemed
a Base Rate Loan. The Agent shall promptly notify the Banks in writing (or by
telephone confirmed in writing or by facsimile) of any such election.
(c) Notwithstanding anything herein to the contrary, the Borrowers may not
specify an Interest Period with respect to all or any portion of any Loan that
would extend beyond the Maturity Date.
(d) No conversion of Loans pursuant to this (S)2.8 may result in a
Eurocurrency Rate Loan with a principal amount less than $2,000,000.
(S)2.9. FUNDS FOR LOANS.
(S)2.9.1. FUNDING PROCEDURES. Not later than 11 o'clock a.m. (Boston
time) on (i) the proposed Drawdown Date of any Loans, or (ii) the date that
any draft presented under any Letter of Credit is honored by the Agent, or
on any date on which the Agent otherwise makes payment with respect
thereto, and in connection therewith the Agent makes Loans on behalf of the
Banks to the Borrowers pursuant to (S)2.7 hereof, each of the Banks will
make available to the Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, in immediately available funds, the amount of such Bank's Commitment
Percentage of such Loans made or to be made on such date. Upon receipt from
each Bank of such amount, and upon receipt of the documents required by
(S)(S)11 and 12 hereof
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and the satisfaction of the other conditions set forth therein, to the
extent applicable, the Agent will make available to the Borrowers the
aggregate amount of such Loans made available to the Agent by the Banks.
The failure or refusal of any Bank to make available to the Agent at the
aforesaid time and place on any Drawdown Date the amount of its Commitment
Percentage of the requested Loans shall not relieve any other Bank from its
several obligation hereunder to make available to the Agent the amount of
such other Bank's Commitment Percentage of any requested Loans.
(S)2.9.2. ADVANCES BY AGENT. The Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date of a Loan, assume that such
Bank has made available to the Agent on such Drawdown Date the amount of
such Bank's Commitment Percentage of the Loans to be made on such Drawdown
Date, and the Agent may (but it shall not be required to), in reliance upon
such assumption, make available to the Borrowers a corresponding amount. If
any Bank makes available to the Agent such amount on a date after such
Drawdown Date, such Bank shall pay to the Agent on demand an amount equal
to the product of (a) the average computed for the period referred to in
clause (c) below, of the weighted average interest rate paid by the Agent
for federal funds acquired by the Agent during each day included in such
period, times (b) the amount of such Bank's Commitment Percentage of such
Loans, times (c) a fraction, the numerator of which is the number of days
that shall have elapsed from and including such Drawdown Date to the date
on which the amount of such Bank's Commitment Percentage of such Loans
shall become immediately available to the Agent, and the denominator of
which is 365. A statement of the 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 Agent by such Bank. If the amount of such
Bank's Commitment Percentage of such Loans is not made available to the
Agent by such Bank within three (3) Business Days following such Drawdown
Date, the Agent shall be entitled to recover such amount from the Borrowers
on demand, with interest thereon at the rate per annum applicable to the
Loans made on such Drawdown Date.
(S)2.10. INTENTIONALLY OMITTED.
(S)2.11. INTENTIONALLY OMITTED.
(S)2.12. MATURITY OF THE LOANS. The Loans shall be due and payable on the
Maturity Date. The Borrowers hereby jointly and severally promise to pay to the
Agent for the pro rata accounts of the Banks, and there shall become absolutely
due and payable on the Maturity Date, all of the Loans outstanding on the
Maturity Date.
(S)2.13. MANDATORY REPAYMENTS OF LOANS. If at any time (i) the sum of the
outstanding principal amount of the Loans, the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations exceeds the lesser of (a) the Total Commitment
and (b) the amount to which the Borrowers' secured Obligations are limited as
set forth in the proviso contained in (S)6 hereof; or (ii) the Borrowers are not
in compliance with the covenant contained in (S)10.4 hereof; then the Borrowers
shall immediately pay the amount of such excess or the amount which would cause
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the Borrowers to be in compliance with such covenant to the Agent for the
respective accounts of the Banks for application: first, to any Unpaid
Reimbursement Obligations; second, to the Loans; and third, to provide to the
Agent cash collateral for Reimbursement Obligations as contemplated by (S)3.2(b)
and (c). Each payment of any Unpaid Reimbursement Obligations or prepayment of
Loans shall be allocated among the Banks, in proportion, as nearly as
practicable, to each Reimbursement Obligation owing to each such Bank or (as the
case may be) the respective unpaid principal amount of the Loans owing to such
Bank, with adjustments to the extent practicable to equalize any prior payments
or repayments not exactly in proportion.
(S)2.14 OPTIONAL REPAYMENTS OF LOANS. The Borrowers shall have the right,
at their election, to repay the outstanding amount of the Loans, as a whole or
in part, at any time without penalty or premium, provided that the full or
partial prepayment of the Outstanding amount of any Loan that is a Eurocurrency
Rate Loan pursuant to this (S)2.14 may be made only on the last day of the
Interest Period relating thereto. The Borrowers shall give the Agent, no later
than 10:00 a.m., Boston time, at least two (2) Business Days' prior written
notice of any proposed repayment of a Loan that is a Base Rate Loan pursuant to
this (S)2.14, and three (3) Eurocurrency Business Days' prior written notice of
any proposed repayment of a Loan that is a Eurocurrency Rate Loan pursuant to
this (S)2.14, in each case specifying the proposed date of payment of such Loans
and the principal amount to be paid. Each such partial prepayment of the Loans
shall be accompanied by the payment of accrued interest on the principal repaid
to the date of payment and shall be in the minimum principal amount of
$2,000,000 or a larger integral multiple of $250,000. Each partial prepayment
shall be allocated among the Banks, in proportion, as nearly as practicable, to
the respective unpaid principal amount of each Bank's Note, with adjustments to
the extent practicable to equalize any prior repayments not exactly in
proportion.
(S)3. LETTERS OF CREDIT.
(S)3.1. LETTER OF CREDIT COMMITMENT.
(S)3.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the
terms and conditions hereof and the execution and delivery by the Borrowers
of a letter of credit application on the Agent's customary form (a "Letter
of Credit Application") the Agent on behalf of the Banks and in reliance
upon the agreement of the Banks set forth in (S)3.1.4 and upon the
representations and warranties of the Borrowers contained herein, agrees,
in its individual capacity, to issue, extend and renew for the account of
the Borrowers from time to time from the Closing Date to the date which is
fourteen (14) Business Days prior to the Maturity Date one or more standby
letters of credit (each, individually, a "Letter of Credit"), in such form
as may be requested from time to time by the Borrowers and agreed to by the
Agent; 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 Twenty Million Dollars
($20,000,000) at any one time, (b) the sum of (i) the Maximum Drawing
Amount, (ii) all Unpaid Reimbursement Obligations, and (iii) the amount of
all Loans Outstanding shall not exceed the Total Commitment or, if less the
amount to which the Borrowers' secured Obligations are limited as set forth
in the proviso contained in (S)6 hereof and (c) the Borrowers are in
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compliance with the covenant contained in (S)10.4 hereof. The parties
hereto hereby agree that, on and as of the Closing Date, the letters of
credit issued under the Existing Credit Agreement shall be deemed to be
Letters of Credit hereunder.
(S)3.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Agent. In the
event that any provision of any Letter of Credit Application shall be
inconsistent with any provision of this Agreement, then the provisions of
this Agreement shall, to the extent of any such inconsistency, govern.
(S)3.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (a) 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, (b) have an original expiry date no later than the date
which is three hundred sixty-five (365) days from the date of issuance and
(c) have a final expiry date no later than the date which is fourteen (14)
Business Days prior to the Maturity Date. Each Letter of Credit so issued,
extended or renewed shall be subject to the Uniform Customs.
(S)3.1.4. 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 Commitment Percentage, to
reimburse the Agent on demand for the amount of each draft paid by the
Agent under each Letter of Credit to the extent that such amount is not
reimbursed by the Borrowers pursuant to (S)3.2 (such agreement for a Bank
being called herein the "Letter of Credit Participation" of such Bank).
(S)3.1.5. PARTICIPATIONS OF BANKS. Each such payment made by a Bank
in respect of a Letter of Credit Participation shall be treated as the
purchase by such Bank of a participating interest in the Borrower's
Reimbursement Obligation under (S)3.2 in an amount equal to such payment.
Each Bank shall share in accordance with its participating interest in any
interest which accrues pursuant to (S)3.2.
(S)3.2. REIMBURSEMENT OBLIGATION OF THE BORROWERS. In order to induce the
Agent to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrowers hereby agree to reimburse or pay to the
Agent, for the account of the Agent or (as the case may be) the Banks, with
respect to each Letter of Credit issued, extended or renewed by the Agent
hereunder,
(a) on each date that any draft presented under such Letter of Credit
is honored by the Agent or the Agent otherwise makes a payment under or
pursuant to such Letter of Credit, (i) the amount paid by the Agent under
or pursuant to such Letter of Credit (it being understood that such payment
to the Agent may, subject to the satisfaction of the conditions set forth
therein, be made from the proceeds of a Loan made to the Borrowers pursuant
to (S)2.7), and (ii) the amount of any customary taxes, fees,
-22-
charges or other reasonable costs and expenses whatsoever incurred by the
Agent or any Bank in connection with any payment made by the Agent or any
Bank under, or pursuant to, such Letter of Credit (to the extent the
reimbursement and payment of such taxes, fees, charges, costs, or expenses
are not otherwise provided for elsewhere in this Agreement and excluding
therefrom any amount payable to the Agent by a Bank pursuant to (S)3.3);
(b) upon the reduction (but not termination) of the Total Commitment
to an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Agent for the benefit of the
Banks and the Agent as cash collateral for the Reimbursement Obligations;
and
(c) upon the termination of the Total Commitment or the acceleration
of the Reimbursement Obligations with respect to all Letters of Credit in
accordance with (S)13, an amount equal to the then Maximum Drawing Amount,
which amount shall be held by the Agent for the benefit of the Banks and
the Agent as cash collateral for the Reimbursement Obligations.
Each such payment shall be made to the Agent at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in immediately available funds or (in the case of clause
(a)) from the direct application of the proceeds of a Loan made pursuant to
(S)2.7 hereof. Interest on any and all amounts remaining unpaid by the
Borrowers under this (S)3.2 at any time from the date such amounts become due
and payable (whether as stated in this (S)3.2, by acceleration or otherwise)
until payment in full (whether before or after judgment) shall be payable to the
Agent on demand at the rate specified in (S)5.8 for overdue principal of the
Loans.
(S)3.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the Agent
shall notify the Borrowers 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 Borrowers fail to reimburse the Agent as
provided in (S)3.2 on or before the date that such draft is paid or other
payment is made by the Agent, the Agent may at any time thereafter notify the
Banks of the amount of any such Unpaid Reimbursement Obligation. No later than
3:00 p.m. (Boston time) on the Business Day next following the receipt of such
notice, each Bank shall make available to the Agent at the Agent's Head Office,
in immediately available funds, such Bank's Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to the product of (a)
the average, computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Agent for federal funds acquired by
the Agent during each day included in such period, times (b) the amount equal to
such Bank's Commitment Percentage of such Unpaid Reimbursement Obligation, times
(c) a fraction, the numerator of which is the number of days that shall have
elapsed from and including the date the Agent paid the draft presented for honor
or otherwise made payment to the date on which such Bank's Commitment Percentage
of such Unpaid Reimbursement Obligation shall become immediately available to
the Agent, and the denominator of which is 360. The responsibility of the Agent
to the Borrowers and the Banks shall be only to determine that the documents
(including each draft) delivered under each Letter
-23-
of Credit in connection with such presentment shall be in conformity in all
material respects with such Letter of Credit.
(S)3.4. OBLIGATIONS ABSOLUTE. The Borrowers' obligations under this (S)3
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 Borrowers may have or have had against the Agent, any Bank or any
beneficiary of a Letter of Credit. The Borrowers further agree with the Agent
and the Banks that the Agent and the Banks shall not be responsible for, and the
Borrowers' Reimbursement Obligations under (S)3.2 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 Borrowers, 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 Borrowers against the beneficiary of
any Letter of Credit or any such transferee. The Agent and the 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 Borrowers agree that any action taken
or omitted by the Agent or any 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 Borrowers and shall not result in any liability on the part of
the Agent or any Bank to the Borrowers; provided that the Agent or such Bank
shall not be grossly negligent in taking or omitting to take any such action.
(S)3.5. RELIANCE BY ISSUER. To the extent not inconsistent with (S)3.4,
the Agent 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 Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first have received such advice or concurrence of the Majority 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
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Majority 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 Notes or of a Letter of
Credit Participation.
(S)3.6. FEES. The Borrowers shall pay to the Agent and the Banks in
respect of each Letter of Credit the following fees (collectively, the "Letter
of Credit Fees"): (a) on the date of issuance and on each anniversary of
issuance of each Letter of Credit, a fee payable to the Agent, for the accounts
of the Banks in accordance with their respective Commitment Percentages,
annually in advance, equal to the Letter of Credit Rate then in effect per annum
on the face amount of such Letter of Credit provided that, if such Letter of
Credit has an expiry date that is less than one year from the date of the
issuance of such Letter of Credit, such fee shall be multiplied by a fraction,
-24-
the numerator of which is the number of days from the date of issuance to the
expiry date of such Letter of Credit and the denominator of which is 365 and (b)
on the date of issuance, and at the time of each extension or renewal of each
Letter of Credit, a fee payable to the Agent for its own account, equal to one-
eighth percent (1/8%) of the face amount of such Letter of Credit plus the
Agent's customary issuance fee, renewal fee or extension fee, as the case may
be.
(S)4. INTENTIONALLY OMITTED.
(S)5. CERTAIN GENERAL PROVISIONS.
(S)5.1. FEES. The Borrowers jointly and severally agree to pay to the
Agent for its own account on the dates as set forth in the Fee Letter, the fees
to be paid on such dates in the amounts set forth in the Fee Letter.
(S)5.2. INTENTIONALLY OMITTED.
(S)5.3. FUNDS FOR PAYMENTS.
(S)5.3.1. PAYMENTS TO AGENT. All payments of principal, interest,
the Reimbursement Obligations, the Letter of Credit Fees, the Commitment
Fee, and any other amounts due hereunder or under any of the other Loan
Documents shall be made to the Agent, for the respective accounts of the
Banks and the Agent, at the Agent's head office or at such other location
that the Agent may from time to time designate, in each case in immediately
available funds.
-25-
(S)5.3.2. NO OFFSET, ETC.
(a) All payments by the Borrowers 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 Borrowers are compelled by law to make such
deduction or withholding. If any such obligation is imposed upon the
Borrowers with respect to any amount payable by it hereunder or under any
of the other Loan Documents, the Borrowers will pay to the Agent, for the
account of the applicable Banks or (as the case may be) the Agent, 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 applicable Banks or the Agent to receive the same net amount
which the applicable Banks or the Agent would have received on such due
date had no such obligation been imposed upon the Borrowers. The Borrowers
will deliver promptly to the Agent certificates or other valid vouchers for
all taxes or other charges deducted from or paid with respect to payments
made by the Borrowers hereunder or under such other Loan Document.
(b) On or before the date it becomes a party to this Agreement and
from time to time thereafter upon any change in status rendering any
certificate or document previously delivered pursuant to this (S)5.3.2
invalid or inaccurate, each Bank that is organized under the laws of a
jurisdiction outside the United States shall (if legally able to do so)
deliver to the Borrowers such certificates, documents or other evidence, as
required by the Code or Treasury Regulations issued pursuant thereto,
including Internal Revenue Service Form 1001 or Form 4224 and any other
certificate or statement of exemption required by Treasury Regulation
Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version thereof
or subsequent version thereto, properly completed and duly executed by such
Bank establishing that such payment is (a) not subject to United States
Federal withholding tax under the Code because such payment is effectively
connected with conduct by such Bank of a trade or business in the United
States or (b) totally exempt from United States Federal withholding tax or,
if due to a change in law occurring after the date such Bank became a party
hereto, subject to a reduced rate of such tax under a provision of an
applicable tax treaty. The Borrower shall not be required to pay any
additional amounts to any Bank pursuant to this (S)5.3.2 to the extent that
the obligation to pay such additional amounts would not have arisen but for
a failure by such Bank to comply with the provisions of the preceding
sentence.
(S)5.4. COMPUTATIONS. All computations of interest on Base Rate Loans,
Letter of Credit Fees, or Commitment Fees shall be based on a 365-day year and
paid for the actual number of days elapsed. All computations of interest on
Eurocurrency 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 Eurocurrency Rate Loans, whenever a
payment hereunder or under any of the other Loan Documents becomes due on a day
that is not a
-26-
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 Records from time to time
shall be considered correct and binding on the Borrowers unless within fifteen
(15) Business Days after receipt of any notice by the Agent or any of the Banks
of such outstanding amount, the Agent or such Bank shall notify the Borrowers to
the contrary.
(S)5.5. 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 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 Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Agreement, the other Loan Documents, the Letters of Credit, such Bank's
Commitment, or the Loans (other than taxes based upon or measured by the
income or profits of such Bank or the 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
Agent under this Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this 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 Agent any other conditions or
requirements with respect to this Agreement, the other Loan Documents, any
Letters of Credit, 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, any Letters of
Credit, or such Bank's Commitment, or
(ii) to reduce the amount of principal, interest or other amount
payable to such Bank or the Agent hereunder on account of such Bank's
Commitment, any Letter of Credit, or any of the Loans, or
-27-
(iii) to require such Bank or the Agent to make any payment or
to forego any interest or Reimbursement Obligation or other sum
payable hereunder, the amount of which payment or foregone interest or
Reimbursement Obligation or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Bank
or the Agent from any of the Borrowers hereunder,
then, and in each such case, the Borrowers will, upon demand made by such Bank
or (as the case may be) the Agent at any time and from time to time and as often
as the occasion therefor may arise, pay to such Bank or the Agent such
additional amounts as will be sufficient to compensate such Bank or the Agent
for such additional cost, reduction, payment or foregone interest or
Reimbursement Obligations or other sum.
(S)5.6. CAPITAL ADEQUACY. If after the date hereof any Bank or the Agent
determines that (a) 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 (b) compliance by such Bank or the
Agent or any corporation controlling such Bank or the 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 Agent's commitment with
respect to any Loans to a level below that which such Bank or the Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or the 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 Agent to be material,
then such Bank or the Agent may notify the Borrowers 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 Borrowers jointly and severally agree to
pay such Bank or (as the case may be) the 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 Agent of a certificate in
accordance with (S)5.7 hereof. Each Bank shall allocate such cost increases
among its customers in good faith and on an equitable basis.
(S)5.7. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to (S)(S)5.5 or 5.6 and a brief explanation of such amounts
which are due, submitted by any Bank or the Agent to the Borrowers, shall be
conclusive, absent manifest error, that such amounts are due and owing.
(S)5.8. INTEREST AFTER DEFAULT. During the continuance of an Event of
Default, the principal of the Loans not overdue shall, until such Event of
Default has been cured or remedied or waived in accordance with (S)26, bear
interest at a rate per annum equal to two percent (2%) above the rate of
interest otherwise applicable to such Loans pursuant to this Agreement. All
overdue amounts hereunder, including, without limitation, the principal of and
interest on (to the extent permitted by applicable law) the Loans, Unpaid
Reimbursement Obligations,
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Commitment Fees and Letter of Credit Fees shall bear interest at the rate per
annum equal to two percent (2%) above the rate of interest applicable to Base
Rate Loans.
(S)5.9. CONCERNING JOINT AND SEVERAL LIABILITY OF THE BORROWERS.
(a) Each of the Borrowers is accepting joint and several liability
hereunder in consideration of the financial accommodation to be provided by
the Banks under this Agreement, for the mutual benefit, directly and
indirectly, of each of the Borrowers and in consideration of the
undertakings of each of the Borrowers to accept joint and several liability
for the obligations of each of them.
(b) Each of the Borrowers jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a co-debtor,
joint and several liability with the other Borrower with respect to the
payment and performance of all of the Obligations arising under this
Agreement, it being the intention of the parties hereto that all the
Obligations shall be the joint and several obligations of both of the
Borrowers without preferences or distinction among them.
(c) If and to the extent that either of the Borrowers shall fail to
make any payment with respect to any of the obligations hereunder as and
when due or to perform any of such obligations in accordance with the terms
thereof, then in each such event, the other Borrower will make such payment
with respect to, or perform, such obligation.
(d) The obligations of each Borrower under the provisions of this
(S)5.9 constitute full recourse obligations of such Borrower, enforceable
against it to the full extent of its properties and assets, irrespective of
the validity, regularity or enforceability of this Agreement or any other
circumstances whatsoever.
(e) Except as otherwise expressly provided herein, each Borrower
hereby waives notice of acceptance of its joint and several liability,
notice of any and all Loans made under this Agreement, notice of occurrence
of any Event of Default, or of any demand for any payment under this
Agreement, notice of any action at any time taken or omitted by the Banks
under or in respect of any of the Obligations hereunder, any requirement of
diligence and, generally, all demands, notices and other formalities of
every kind in connection with this Agreement. Each Borrower hereby assents
to, and waives notice of, any extension or postponement of the time for the
payment of any of the Obligations hereunder, the acceptance of any partial
payment thereon, any waiver, consent or other action or acquiescence by the
Banks at any time or times in respect of any default any Borrower in the
performance or satisfaction of any term, covenant, condition or provision
of this Agreement, any and all other indulgences whatsoever by the Banks in
respect of any of the Obligations hereunder, and the taking, addition,
substitution or release, in whole or in part, at any time or times, of any
security for any of such Obligations or the addition, substitution or
release, in whole or in part, of any Borrower. Without limiting the
generality of the foregoing, each Borrower assents to any other action or
delay in acting or failure to act on the part of the Banks, including,
without
-29-
limitation, any failure strictly or diligently to assert any right
or to pursue any remedy or to comply fully with applicable laws or
regulations thereunder which might, but for the provisions of this (S)5.9,
afford grounds for terminating, discharging or relieving such Borrower, in
whole or in part, from any of its obligations under this (S)5.9, it being
the intention of each Borrower that, so long as any of the Obligations
hereunder remain unsatisfied, the obligations of such Borrower under this
(S)5.9 shall not be discharged except by performance and then only to the
extent of such performance. The obligations of each Borrower under this
(S)5.9 shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar
proceeding with respect to any reconstruction or similar proceeding with
respect to any Borrower or any Bank. The joint and several liability of
the Borrowers hereunder shall continue in full force and effect
notwithstanding any absorption, merger, amalgamation or any other change
whatsoever in the name, membership, constitution or place of formation of
any Borrower or any Bank.
(f) The provisions of this (S)5.9 are made for the benefit of the
Banks and their successors and assigns, and may be enforced by them from
time to time against either of the Borrowers as often as occasion therefor
may arise and without requirement on the part of the Banks first to
▇▇▇▇▇▇▇▇ any of their claims or to exercise any of their rights against the
other Borrower or to exhaust any remedies available to them against the
other Borrower or to resort to any other source or means of obtaining
payment of any of the Obligations hereunder or to elect any other remedy.
The provisions of this (S)5.9 shall remain in effect until all the
Obligations hereunder shall have been paid in full or otherwise fully
satisfied. If at any time, any payment, or any part thereof, made in
respect of any of the Obligations, is rescinded or must otherwise be
restored or returned by any of the Banks upon the insolvency, bankruptcy or
reorganization of the Borrowers, or otherwise, the provisions of this
(S)5.9 will forthwith be reinstated in effect, as though such payment had
not been made.
(S)5.10. INABILITY TO DETERMINE EUROCURRENCY RATE. In the event that,
prior to the commencement of any Interest Period relating to any Eurocurrency
Rate Loan, the Agent shall determine or be notified by the Majority Banks that
adequate and reasonable methods do not exist for ascertaining the Eurocurrency
Rate that would otherwise determine the rate of interest to be applicable to any
Eurocurrency Rate Loan during any Interest Period, the Agent shall forthwith
give notice of such determination (which shall be conclusive and binding on the
Borrowers and the Banks) to the Borrowers. In such event (a) each Loan Request
or Conversion Request with respect to each Eurocurrency Rate Loan shall be
automatically withdrawn and shall be deemed a request for a Base Rate Loan, (b)
each Eurocurrency Rate Loan will automatically, on the last day of the then
current Interest Period thereof, become a Base Rate Loan, and (c) the
obligations of the Banks to make Eurocurrency Rate Loans shall be suspended
until the Agent or the Majority Banks determine that the circumstances giving
rise to such suspension no longer exist, whereupon the Agent shall so notify the
Borrowers.
(S)5.11. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or the interpretation or
application thereof shall make it
-30-
unlawful for the Banks to make or maintain Eurocurrency Rate Loans, the Agent
shall forthwith give notice of such circumstances to the Borrowers and thereupon
(a) the commitment of the Banks to make Eurocurrency Rate Loans or convert Loans
of another Type to Eurocurrency Rate Loans shall forthwith be suspended and (b)
the Loans then outstanding as Eurocurrency Rate Loans, if any, shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such Eurocurrency Rate Loans or within such earlier period
as may be required by law. The Borrowers hereby jointly and severally agree
promptly to pay the Agent, for the pro rata accounts of the Banks, upon demand,
any additional amounts necessary to compensate the Banks for any costs incurred
by the Banks in making any conversion in accordance with this (S)5.11, including
any interest or fees payable by the Banks to lenders of funds obtained by it in
order to make or maintain its Eurocurrency Rate Loans hereunder.
(S)5.12. INDEMNITY. Except to the extent of breakage costs arising from a
prepayment of a Eurocurrency Rate Loan as a result of an event set forth in
(S)5.10, each of the Borrowers agrees to indemnify the Banks and to hold the
Banks harmless from and against any loss, cost or expense (including loss of
anticipated profits) that the Banks may sustain or incur as a consequence of (a)
default by such Borrower in payment of the principal amount of or any interest
on any Eurocurrency Rate Loans as and when due and payable, including any such
loss or expense arising from interest or fees payable by the Banks to lenders of
funds obtained by it in order to maintain its Eurocurrency Rate Loans, (b)
default by such Borrower in making a borrowing after such Borrower has given (or
is deemed to have given) a Loan Request or a Conversion Request relating thereto
in accordance with (S)2.6, (S)2.7 or (S)2.8 or (c) the making of any payment on
a Eurocurrency 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 any Bank to
lenders of funds obtained by it in order to maintain any such Loans.
(S)5.13. REPLACEMENT OF BANKS. If any Bank (an "Affected Bank") (i) makes
demand upon a Borrower for (or if a Borrower is otherwise required to pay)
amounts pursuant to (S)(S)5.3.2, 5.5 or 5.6, (ii) is unable to make or maintain
Eurocurrency Rate Loans as a result of a condition described in (S)5.10 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 Borrowers
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 (S)5.10 to be applicable), or default, as the case may be, by notice (a
"Replacement Notice") in writing to the Agent and such Affected Bank (A) request
the Affected Bank to cooperate with the Borrowers in obtaining a replacement
bank satisfactory to the Agent and the Borrower (the "Replacement Bank"); (B)
request the non-Affected Banks to acquire and assume all of the Affected Bank's
Loans and Commitments, as provided herein, but none of such Banks shall be under
an obligation to do so; or (C) designate a Replacement Bank approved by the
Agent, such approval not to be unreasonably withheld or delayed. 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 Commitment, then such Affected Bank shall assign, in accordance
with (S)19, all of its Commitment, Loans, Letter of Credit Participations, Notes
and other rights and obligations under this Agreement and all other Loan
Documents to such
Replacement Bank
-31-
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, and (ii) prior to any such assignment, the Borrowers
shall have paid to such Affected Bank all amounts properly demanded and
unreimbursed under (S)(S)5.3.2, 5.5 or 5.6. Upon the effective date of such
assignment, the Borrowers 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.
(S)6. COLLATERAL SECURITY AND GUARANTIES. The Obligations of the
Borrowers shall be guaranteed equally and ratably by the Parent and each other
Subsidiary (direct and indirect) of the Parent, to the extent that such other
Subsidiary of the Parent is required to guaranty the obligations of the Parent
under the terms of the Indentures relating to the Senior Notes. The Obligations
of the Borrowers shall be secured by a perfected first priority security
interest (subject only to Permitted Liens entitled to priority under applicable
law) in (i) certain US Flag Vessels to the extent contemplated by the US Vessel
Mortgage, and (ii) certain other assets of the Borrowers to the extent
contemplated by the Security Documents; provided that, notwithstanding anything
to the contrary contained in the Security Documents, the aggregate amount of
Obligations of the Parent and the Borrowers which is secured pursuant to the
Security Documents shall not, at any time, exceed the sum of (i) $65,000,000
plus (ii) fifteen percent (15%) of Consolidated Net Tangible Assets.
(S)7. REPRESENTATIONS AND WARRANTIES. The Parent and each of the
Borrowers jointly and severally represent and warrant to the Banks and the Agent
on the Closing Date, on each Drawdown Date and on the date of any issuance,
extension or renewal of a Letter of Credit as follows:
(S)7.1. CORPORATE AUTHORITY.
(S)7.1.1. INCORPORATION; GOOD STANDING. Each of the Parent, the
Borrowers, and the Parent's other Subsidiaries, (a) is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, (b) has all requisite corporate power to own
its property and conduct its business as now conducted, and (c) is in good
standing as a foreign corporation 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 material adverse effect on the
business, assets or financial condition of Borrowers or the Parent, the
Borrowers, and the Parent's other Subsidiaries, taken as a whole.
(S)7.1.2. AUTHORIZATION. The execution, delivery and performance of
this Agreement and the other Loan Documents to which the Parent and its
Subsidiaries is or is to become a party and the transactions contemplated
hereby and thereby (a) are within the corporate authority of each of such
Persons, (b) have been duly authorized by all
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necessary corporate proceedings by each of such Persons, (c) do not
conflict with or result in any breach or contravention of any provision of
law, statute, rule or regulation to which any of such Persons is subject or
any judgment, order, writ, injunction, license, exemption or permit
applicable to any of such Persons or make any such Person ineligible for
any beneficial tax treatment or other regulatory or contractual treatment
or status which is of material importance to its business or financial
status, (d) do not require any waivers, consents or approvals by any of
such Person's creditors which have not been obtained, (e) do not require
any consents or approvals by any of such Person's shareholders (except such
as will be duly obtained on or prior to the Closing Date and will be in
full force and effect on and as of such date), and (f) do not conflict with
any provision of the corporate charter or bylaws of, or any agreement or
other instrument binding upon any of such Persons.
(S)7.1.3. ENFORCEABILITY. The execution and delivery of this
Agreement and each of the other Loan Documents to which the Parent and its
Subsidiaries is or is to become a party will result in valid and legally
binding obligations of each of such Persons 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.
(S)7.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance
of this Agreement and the other Loan Documents to which the Parent and its
Subsidiaries is or is to become a party and the transactions contemplated hereby
and thereby do not and will not require any approval, consent, order,
authorization or license by, filing with, or notice to, any governmental or
regulatory agency or authority other than those already obtained or given.
(S)7.3. TITLE TO PROPERTIES; LEASES. Except as indicated on Schedule 7.3
attached hereto, the Parent and its Subsidiaries own all of the assets reflected
in the consolidated balance sheet of the Parent and its Subsidiaries as at the
Balance Sheet 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, charters, conditional sales agreements,
title retention agreements, liens or other encumbrances except Permitted Liens.
(S)7.4. FINANCIAL STATEMENTS
(a) There have been furnished to each of the Banks a consolidated
balance sheet of the Parent and its Subsidiaries as at the Balance Sheet
Date, and consolidated statements of income and cash flows for the fiscal
year then ended, certified by Coopers & ▇▇▇▇▇▇▇ LLP. Such balance sheet
and statements of income and cash flows were prepared in accordance with
generally accepted accounting principles and fairly present the financial
condition of the Parent and its Subsidiaries as of the close of business on
the Balance Sheet Date and the results of operations for the fiscal year
then ended. There are
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no liabilities, contingent or otherwise, of the Parent or any of its
Subsidiaries, as of the Balance Sheet Date, that would in accordance with
generally accepted accounting principles be required to be disclosed on a
balance sheet or footnotes thereto, which were not disclosed in such
balance sheet and the notes related thereto.
(b) There have also been furnished to each of the Banks the unaudited
consolidated balance sheet of the Parent and its Subsidiaries as at
December 31, 1997, and consolidated statements of income and cash flows for
the portion of the fiscal year then ended. Such balance sheet and
statements of income and cash flows were prepared in accordance with
generally accepted accounting principles and fairly present the financial
condition of the Parent and its Subsidiaries as of the close of business on
such date and the results of operations for the portion of the fiscal year
then ended. There are no liabilities, contingent or otherwise, of the
Parent or any of its Subsidiaries, as of such date, that would in
accordance with generally accepted accounting principles be required to be
disclosed on a balance sheet or footnotes thereto, which were not disclosed
in such balance sheet and the notes related thereto.
(S)7.5. NO MATERIAL CHANGES; SOLVENCY.
(a) Since the Balance Sheet Date there have been no changes in the
business or financial condition or results of operations of the Parent and
its Subsidiaries which have been, either individually or in the aggregate,
materially adverse to the Borrowers or the Parent and its Subsidiaries,
taken as a whole.
(b) Each of the Parent and its Subsidiaries (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.
(S)7.6. BUSINESS. Each of the Parent and its Subsidiaries enjoys peaceful
and undisturbed possession under all leases of real or personal property of
which it is lessee, none of which contains any unusual or burdensome provision
which will materially adversely affect or impair the operations of such Person
and all such leases are valid and subsisting and in full force and effect. Each
such Person owns or possesses the right to use all the franchises, rights,
licenses, operating rights, patents, trademarks, permits, service marks, trade
names, and copyrights necessary for the conduct of its business as conducted and
as proposed to be conducted, without any conflict with the rights of others.
(S)7.7. LITIGATION. There is no restraining order, injunction or pending
litigation applicable to the transactions contemplated by this Agreement or the
other Loan Documents.
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There are no actions, suits, proceedings or investigations of any kind pending
or threatened against the Parent or any of its Subsidiaries before any court,
arbitrator, tribunal or administrative agency or board that, if adversely
determined, would be likely, either in any case or in the aggregate, to
materially adversely affect the properties, assets, financial condition,
prospects or business of the Parent and its Subsidiaries, taken as a whole, or
materially impair the right of any of such Persons to carry on its business
substantially as now conducted by it, 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 Parent and its Subsidiaries,
or which question the validity of this Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
(S)7.8. INTENTIONALLY OMITTED.
(S)7.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the Parent
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 Borrowers or the Parent and its Subsidiaries, taken as a whole.
(S)7.10. TAX STATUS. The Parent and its Subsidiaries (a) have made or
filed all federal, state or other income and all other tax returns, reports and
declarations required by any jurisdiction to which any of them is subject, (b)
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 (c) 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 such
Persons know of no basis for any such claim.
(S)7.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
(S)7.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the Parent
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.
(S)7.13. ABSENCE OF ENCUMBRANCES, ETC. Except with respect to Permitted
Liens, there is no financing statement, security agreement, chattel mortgage,
real estate mortgage or other document filed or recorded with any filing
records, registry, or other public office, that purports
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to cover, affect or give notice of any present or possible future lien on, or
security interest in, any assets or property of the Parent or any of its
Subsidiaries or rights thereunder.
(S)7.14. PERFECTION OF SECURITY INTEREST; COLLATERAL. All filings,
assignments, pledges and deposits of documents or instruments have been made and
all other actions have been taken that are necessary under applicable law, to
establish and perfect the Agent's security interest in the Collateral. The
Collateral and the Agent's rights with respect to the Collateral are not subject
to any setoff, claims, withholdings or other defenses. A Borrower is the owner
of the Collateral free from any lien, security interest, encumbrance and any
other claim or demand, except for Permitted Liens. All of the Obligations of
the Borrowers to the Banks and the Agent under or in respect of the Loan
Documents will, at all times from and after the execution and delivery of each
of the Security Documents, be entitled to the benefits of and be secured by each
of such Security Documents in accordance with the terms hereof and thereof.
(S)7.15. CERTAIN TRANSACTIONS. Except for arm's length transactions
pursuant to which the Parent or any of its Subsidiaries makes payments in the
ordinary course of business upon terms no less favorable than such Person could
obtain from third parties, none of the officers, directors, or employees of the
Parent or any of its Subsidiaries is presently a party to any contract,
agreement or other arrangement providing for the furnishing of services (other
than for services as employees, officers and directors) 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 such
Person, 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.
(S)7.16. EMPLOYEE BENEFIT PLANS.
(S)7.16.1. IN GENERAL. Each Employee Benefit 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.
(S)7.16.2. TERMINABILITY OF WELFARE PLANS. Under each Employee
Benefit Plan which is an employee welfare benefit plan within the meaning
of (S)3(1) or (S)3(2)(B) of ERISA, no benefits are due unless the event
giving rise to the benefit entitlement occurs prior to plan termination
(except as required by Title I, Part 6 of ERISA). Either of the Borrowers
or the Parent or an ERISA Affiliate, as appropriate, 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 such Person without
liability to any Person.
(S)7.16.3. GUARANTEED PENSION PLANS; MULTIEMPLOYER PLANS. Neither of
the Borrowers, the Parent nor any ERISA Affiliate has sponsored,
maintained, made any contributions to or has any liability in respect of
any Guaranteed Pension Plan or Multiemployer Plan.
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(S)7.17. REGULATIONS U AND X; USE OF PROCEEDS. The Borrowers will use the
proceeds of the Loans solely for working capital and for general corporate
purposes. The Borrowers will obtain Letters of Credit solely for general
corporate purposes. No portion of any Loan is to be used, and no portion of any
Letter of Credit is to be obtained, 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. No portion of the proceeds of any Loans is to be used, and no
portion of any Letter of Credit is to be obtained, 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, 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 Parent or any of its
Subsidiaries.
(S)7.18. ENVIRONMENTAL COMPLIANCE. Each of the Parent and its
Subsidiaries has taken all steps reasonably necessary to investigate the past
and present condition and usage of the real estate owned or leased by it and the
operations conducted thereon and, based upon such diligent investigation, has
determined that:
(a) none of the Parent or its Subsidiaries or any operator of its 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 ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 as amended
("CERCLA"), 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 statute, regulation, ordinance, order or
decree of the United States of America or any state or other jurisdiction
thereof, or any other nation or jurisdiction relating to health, safety or
the environment, including, without limitation, any international
conventions to which their business or assets are subject (hereinafter
"Environmental Laws"), which violation could reasonably be expected to have
a material adverse effect on the business, assets or financial condition of
such Persons, taken as a whole;
(b) except as set forth on Schedule 7.18 attached hereto, none of the
Parent or its Subsidiaries has received notice from any third party
including, without limitation any federal, state or local governmental
authority, (i) that any one of them has been identified by the United
States Environmental Protection Agency ("EPA") as a potentially responsible
party under CERCLA with respect to a site listed on the National Priorities
List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1986); (ii) that any hazardous waste,
as defined by 42 U.S.C. (S) 9601(5), any hazardous substances as defined by
42 U.S.C. (S) 9601(14), any pollutant or contaminant as defined by 42
U.S.C. (S)9601(33) and any toxic substances, oil or hazardous materials or
other chemicals or substances regulated by any Environmental
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Laws ("Hazardous Substances") which any one of them has generated,
transported or disposed of has been found at any site at which a federal,
state or local agency or other third party has conducted or has ordered
that any of such Persons conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or
shall be a named party to any claim, action, cause of action, complaint, or
legal or administrative proceeding (in each case, contingent or otherwise)
arising out of any third party's incurrence of costs, expenses, losses or
damages of any kind whatsoever in connection with the release of Hazardous
Substances;
(c) except as set forth on Schedule 7.18 attached hereto: (i) no
portion of the real estate owned or leased by the Parent or its
Subsidiaries and no Vessel has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance in all
material respects with applicable Environmental Laws; and no underground
tank or other underground storage receptacle for Hazardous Substances is
located on any portion of the Real Estate; (ii) in the course of any
activities conducted by such Persons or operators of such Person's
properties, no Hazardous Substances have been generated or are being used
on the Real Estate or any Vessel except in accordance in all material
respects with applicable Environmental Laws; (iii) there have been no
releases (i.e. any past or present releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, disposing or
dumping) or threatened releases of Hazardous Substances on, upon, into or
from the properties (including, without limitation, the Vessels) of any of
such Persons which releases could reasonably be expected to have a material
adverse effect on the business, assets or financial condition of such
Person; (iv) to the best of such Person's knowledge, there have been no
releases on, upon, from or into any real property in the vicinity of any of
such real estate which, through soil or groundwater contamination, may have
come to be located on, and which could reasonably be expected to have a
material adverse effect on the business, assets or financial condition of
such Person; and (v) in addition, any Hazardous Substances that have been
generated on any of the real estate have been transported offsite only by
carriers having an identification number issued by the EPA, treated or
disposed of only by treatment or disposal facilities maintaining valid
permits as required under applicable Environmental Laws, which transporters
and facilities have been and are, to the best of such Person's knowledge,
operating in material compliance with such permits and applicable
Environmental Laws;
(d) none of the Parent or its Subsidiaries nor any of the real estate
is subject to any applicable environmental law requiring the performance of
Hazardous Substances site assessments, or the removal or remediation of
Hazardous Substances, or the giving of notice to any governmental agency or
the recording or delivery to other Persons of an environmental disclosure
document or statement by virtue of the transactions set forth herein and
contemplated hereby, or as a condition to the effectiveness of any
transactions contemplated hereby; and
(e) all of the Vessels comply in all material respects with all
applicable international conventions, national, federal, state and other
governmental laws and
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regulations; the rules of the classification societies under which the
Vessels are classed and any contractual obligations regarding the
prevention of pollution and other marine environmental hazards, including
the transportation and management of hazardous substances and waste
disposal, and the Parent and its Subsidiaries have made all required
payments and contributions to statutory environmental insurance schemes and
other environmental insurance schemes applicable to the Parent and its
Subsidiaries and customary for the business and operations conducted by
them.
(S)7.19. SUBSIDIARIES. Each Subsidiary (whether direct or indirect) of
the Parent is set forth on Schedule 7.19 attached hereto. Except to the extent
permitted under (S)9.3(f), neither the Parent nor its Subsidiaries is engaged in
any joint venture or partnership with any other Person.
(S)7.20. CHIEF EXECUTIVE OFFICE; BOOKS AND RECORDS.
(a) Each of the Borrowers' and the Parent's chief executive office is
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at which location
their respective books and records are kept.
(b) Marine Operators' federal employer identification number is 72-
109-6124. Marine Assets' federal employer identification number is 72-125-
2404. The Parent's federal employer identification number is ▇▇-▇▇▇-▇▇▇▇.
(S)7.21. DISCLOSURE. None of this Agreement, the other Loan Documents or
the other information furnished by the Parent or its Subsidiaries to the Agent
or the Banks contains any untrue statement of a material fact or omits to state
a material fact (known to such Person in the case of any document or information
not furnished by it) necessary in order to make the statements herein or therein
not misleading. There is no fact known to any such Person which materially
adversely affects, or which is reasonably likely in the future to materially
adversely affect, exclusive of effects resulting from changes in general
economic conditions, the business, assets, financial condition or prospects of
such Persons, taken as a whole.
(S)7.22. FISCAL YEAR. The Parent and each of its Subsidiaries has a
fiscal year which is the twelve months ending on December 31 of each year.
(S)7.23. NO LABOR AGREEMENTS. Except as described on Schedule 7.23, none
of the Parent nor any of its Subsidiaries has any labor agreements in effect
with any unionized group of employees.
(S)7.24. CONCERNING THE VESSELS.
(a) Schedule 7.24(a) sets forth a true and correct list describing
each of the Vessels registered under the laws of the United States of
America (the "US Flag Vessels") owned on the Closing Date by either of the
Borrowers and correctly sets forth whether each such Vessel is owned by
Marine Assets or Marine Operators. Each Vessel has been appropriately
registered under the laws of its jurisdiction or registration,
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including, with respect to each US Flag Vessel, the laws of the United
States of America, and as of the Closing Date except as disclosed to the
Banks in writing, neither of the Borrowers own any Vessels registered under
the laws of the United States of America other than the US Flag Vessels.
(b) Each Vessel complies with all applicable maritime laws and
regulations, including, with respect to each US Flag Vessel, all applicable
requirements of the Shipping Act of 1916, as amended and in effect, and all
applicable regulations thereunder and all applicable requirements of the
maritime laws of the United States of America and all applicable
regulations thereunder. Each of the Borrowers and the Parent is a citizen
of the United States for purposes of operating each of the US Flag Vessels
in the coastwise trade in accordance with Section 2 of the Shipping Act of
1916, as amended and in effect, and the regulations thereunder. Each
bareboat or demise charterer of each of the US Flag Vessels operated in the
coastwise trade of the United States (i) is a citizen of the United States
for purposes of operating and maintaining such US Flag Vessels in the
coastwise trade in accordance with Section 2 of the Shipping Act of 1916,
as amended and in effect, and the regulations thereunder or (ii) is in
compliance with the citizenship requirements set forth in 46 App. U.S.C.A.
(S)883-1. Each of the US Flag Vessels listed on Schedule 7.24(b) attached
hereto is covered by a valid Coast Guard Certificate of Inspection, and
Schedule 7.24(c) attached hereto lists the load line Certificate or Class
of those US Flag Vessels classed by the American Bureau of Shipping (or any
other classification society or societies satisfactory to the Agent and the
Banks). Each US Flag Vessel operated and maintained as a vessel in the
coastwise trade of the United States is so operated in accordance with the
Shipping Act of 1916, as amended and in effect, and the regulations
thereunder, and all other US Flag Vessels if operated and maintained in the
coastwise trade would be eligible to be so operated in accordance with the
Shipping Act of 1916, as amended and in effect, and the regulations
thereunder.
(c) Each Vessel subject to a Vessel Mortgage is covered by hull and
machinery, protection and indemnity, war risk, loss of earnings and excess
liability insurance in accordance with the requirements of such Vessel
Mortgage.
(S)8. AFFIRMATIVE COVENANTS. The Parent and each of the Borrowers jointly
and severally covenant and agree that, so long as any Loan, Unpaid Reimbursement
Obligation, Letter of Credit or Note is outstanding or any Bank has any
obligation to make any Loans or the Agent has any obligation to issue, extend or
renew any Letters of Credit hereunder:
(S)8.1. PUNCTUAL PAYMENT. The Borrowers 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 Commitment Fees and all other
amounts provided for in this Agreement, all in accordance with the terms of this
Agreement, the Notes and the other Loan Documents.
(S)8.2. MAINTENANCE OF OFFICE. Each of the Borrowers and the Parent will
maintain its chief executive office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place in the United States of America as such
Person shall designate upon written notice to the
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Agent, where notices, presentations and demands to or upon such Person in
respect of the Loan Documents may be given or made.
(S)8.3. RECORDS AND ACCOUNTS. Each of the Borrowers and the Parent will
and the Parent will cause each of its other Subsidiaries to (a) 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 and (b)
maintain adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties,
contingencies, and other reserves.
(S)8.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Parent
and the Borrowers will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Parent, the consolidated
balance sheet of the Parent and its Subsidiaries as at the end of such
year, and the related consolidated statement of income and consolidated
statement of cash flow for such year, each setting forth in comparative
form the figures for the previous fiscal year and all statements to be in
reasonable detail, prepared in accordance with generally accepted
accounting principles, and certified without qualification by Coopers &
▇▇▇▇▇▇▇ LLP or by other independent certified public accountants of
recognized national standing, which statements shall include a footnote
which identifies any Default or Event of Default;
(b) as soon as practicable, but in any event not later than forty-five
(45) days after the end of each of the first three fiscal quarters of the
Parent, copies of the unaudited consolidated balance sheet of the Parent
and its Subsidiaries as at the end of such quarter, and the related
consolidated statement of income and consolidated statement of cash flow
for the portion of the Parent'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 officers of each of the Borrowers and the Parent that the
information contained in such financial statements fairly presents the
financial position of the Parent and its Subsidiaries on the date thereof
(subject to year-end adjustments);
(c) promptly upon the delivery of the financial statements referred to
in subsections (a) and (b) above, a statement certified by the principal
financial or accounting officers of the Borrowers and the Parent in
substantially the form of Exhibit C attached hereto and setting forth in
reasonable detail computations (i) calculating the Leverage Ratio for
purposes of determining the Applicable Margin and (ii) evidencing
compliance with the covenants contained in (S)10 hereof and (if applicable)
reconciliations to reflect changes in generally accepted accounting
principles since the Balance Sheet Date;
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(d) promptly upon the filing or mailing thereof, copies of all
material information of a financial nature filed with the Securities and
Exchange Commission or sent to the stockholders of the Parent;
(e) from time to time such other financial data and information
(including accountants' management letters) as the Agent or any Bank may
reasonably request; and
(f) once each calendar year, or more frequently as determined by the
Agent or the Majority Banks, upon the request of the Agent or the Majority
Banks, the Borrowers will, at their own expense, obtain and deliver to the
Agent and the Banks appraisal reports in form and substance and from
appraisers satisfactory to the Agent, stating the then current fair market
values of all or any portion of the Vessels subject to a Vessel
Mortgage, provided, that no more than one such appraisal per calendar year
shall be conducted and made at the expense of the Borrowers. The first
such appraisal following the Closing Date shall be completed by January 31,
1999. Such appraisal may include an inspection of each such Vessel by
marine engineers or other surveyors selected by the Agent in its sole
discretion.
(S)8.5. NOTICES.
(S)8.5.1. DEFAULTS. The Parent and the Borrowers will promptly
notify the Agent 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 Agreement or any other note, evidence of indebtedness,
indenture or other obligation to which or with respect to which the Parent
or any of its Subsidiaries is a party or obligor, whether as principal or
surety, the Parent and the Borrowers shall forthwith give written notice
thereof to the Agent, describing the notice or action and the nature of the
claimed default.
(S)8.5.2. ENVIRONMENTAL EVENTS. The Parent and the Borrowers will
promptly give notice to the Agent (a) of any material violation of any
Environmental Law that the Parent 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 and (b) upon becoming aware thereof, of
any inquiry, proceeding, investigation, or other action, including a notice
from any agency of potential environmental liability, or any national,
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 Parent and its Subsidiaries, taken as a
whole, or the Agent's security interests pursuant to the Security
Documents.
(S)8.5.3. NOTIFICATION OF CLAIMS AGAINST COLLATERAL. The Parent and
the Borrowers will, immediately upon becoming aware thereof, notify the
Agent in writing of any setoff, claims, withholdings or other defenses to
which any of the Collateral, or the Agent's rights with respect to the
Collateral, are subject, involving in any one case an amount of $1,000,000
or more.
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(S)8.5.4. NOTICE OF LITIGATION AND JUDGMENTS. The Parent and the
Borrowers will, and the Parent will cause each of its other Subsidiaries
to, give notice to the Agent in writing within fifteen (15) days of
becoming aware of any litigation or proceedings or any pending litigation
and proceedings affecting the Parent or any of its Subsidiaries or to which
the Parent or any of its Subsidiaries is or becomes a party involving an
uninsured claim against the Parent or any of its Subsidiaries that could
reasonably be expected to have a materially adverse effect on the Parent
and its Subsidiaries, taken as a whole, and stating the nature and status
of such litigation or proceedings. The Parent and the Borrowers will, and
the Parent will cause each of its other Subsidiaries to, give notice to the
Agent, in writing, in form and detail satisfactory to the Agent, within ten
(10) days of any judgment not covered by insurance, final or otherwise,
against the Parent or any of its Subsidiaries in an amount in excess of
$1,000,000.
(S)8.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. Except as
permitted under (S)9.5.1 hereof, the Parent and each of the Borrowers will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises and those of the Parent's
other Subsidiaries. The Parent and each of the Borrowers (a) will cause all of
its properties and those of the Parent's other Subsidiaries used or useful in
the conduct of its business or the business of such Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment, (b) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of such Person may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times,
and (c) will, and the Parent will cause each of its other Subsidiaries to,
continue to engage primarily in the businesses now conducted by them and in
related businesses; provided that nothing in this (S)8.6 shall prevent the
Parent or any of the Borrowers from discontinuing the operation and maintenance
of any of its properties or those of the Parent's other Subsidiaries if such
discontinuance is, in the judgment of such Person, desirable in the conduct of
its or their business and does not in the aggregate materially adversely affect
the business of the Parent and its Subsidiaries on a consolidated basis.
(S)8.7. INSURANCE. The Parent and each of the Borrowers will, and the
Parent will cause each of its other 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 in accordance with the
terms of the Security Documents.
(S)8.8. TAXES AND CLAIMS. The Parent and each of the Borrowers will, and
the Parent will cause each of its other 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 (other than taxes, assessments
and other governmental charges imposed by jurisdictions other than those in
which such Person's business is principally conducted that in the aggregate are
not material to the business or assets of the Borrowers on an individual basis
or of the Parent and its Subsidiaries on a consolidated basis) imposed upon it
and its real properties, sales and
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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 such Person shall have set aside on its books adequate reserves with
respect thereto to the extent required in accordance with generally accepted
accounting principles; and provided further that the Parent, each of the
Borrowers and each other Subsidiary of the Parent 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.
(S)8.9. INSPECTION OF PROPERTIES AND BOOKS, ETC. The Parent and each of
the Borrowers shall permit the Banks, through the Agent or any of the Banks'
other designated representatives, to visit and inspect any of the properties of
the Parent, the Borrowers or any of the Parent's other Subsidiaries to examine
the books of account of the Parent and its Subsidiaries (and to make copies
thereof and extracts therefrom), and to discuss the affairs, finances and
accounts of the Parent 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 Agent or any Bank may reasonably request.
(S)8.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
Parent and each of the Borrowers will, and the Parent will cause each of its
other Subsidiaries to, comply in all material respects with (a) the applicable
laws and regulations wherever its business is conducted or its assets are owned
or situated, including all Environmental Laws, (b) the provisions of its charter
documents and by-laws, (c) all stock exchange or other applicable regulatory
rules, (d) all agreements and instruments by which it or any of its properties
may be bound, (e) all applicable decrees, orders, and judgments, and (f) the
rules and requirements of any classification society in which any Vessel is
classed. 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 Parent, the Borrower or any of the Parent's other
Subsidiaries may fulfill any of its obligations hereunder, the Parent and the
Borrower will, or will cause such other Subsidiary to, immediately take or cause
to be taken all reasonable steps within the power of such Person to obtain such
authorization, consent, approval, permit or license and furnish the Agent and
the Banks with evidence thereof.
(S)8.11. USE OF PROCEEDS. The Borrowers will use the proceeds of the
Loans solely for working capital and for general corporate purposes. The
Borrowers will obtain Letters of Credit solely for general corporate purposes.
(S)8.12. CONCERNING THE VESSELS. Each of the Borrowers shall at all times
operate each Vessel in compliance in all respects with all applicable
governmental rules, regulations and requirements pertaining to such Vessels
(including, without limitation, all requirements of the Shipping Act of 1916, as
amended and in effect, applicable to each US Flag Vessel) and, to the extent
required to be classed, in compliance in all respects with all rules,
regulations and requirements of the
applicable classification society. Each of the Borrowers and the Parent shall
at all times maintain and shall assure that each demise or bareboat charterer of
the US Flag Vessels operated and maintained in the coastwise trade of the United
States shall maintain, as
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required, its citizenship of the United States for purposes of operating each of
the US Flag Vessels in the coastwise trade in accordance with Section 2 of the
Shipping Act of 1916, as amended and in effect, and the regulations thereunder
or the citizenship requirements set forth in 46 App. U.S.C.A. (S)883-1. Upon
request of the Agent, the Borrowers shall furnish to the Agent and the Banks the
certificate of each classification society covering each of the US Flag Vessels
listed on Schedule 7.24(c) attached hereto no later than thirty (30) days after
the end of each fiscal year of the Parent. The Borrowers shall keep each Vessel
registered under the laws of the United States or other applicable jurisdiction
and shall maintain in full force and effect the Coast Guard Certificate of
Inspection (or the equivalent for any Vessel registered under the laws of
another jurisdiction) of each such Vessel which requires such a certificate and
furnish to the Agent copies of all renewals and extensions thereof.
(S)8.13. FURTHER ASSURANCES. The Parent and the Borrowers will and will
cause each of the Parent's other Subsidiaries to cooperate with the Banks and
the Agent and execute such further instruments and documents as the Banks or the
Agent shall reasonably request to carry out to their satisfaction the
transactions contemplated by this Agreement and the other Loan Documents.
(S)8.14. ADDITIONAL GUARANTORS. The Parent and the Borrowers will cause
each Subsidiary acquired or formed after the Closing Date, contemporaneously
with such formation or acquisition, to guaranty the Obligations pursuant to a
guaranty in form and substance satisfactory to the Agent, which guaranty shall
be a Security Document hereunder; provided that the requirements of this (S)8.14
shall not apply to (a) the SWATH Subsidiary and (b) any other Subsidiary formed
after the Closing Date to the extent, in each case, that such Subsidiary does
not, and is not required pursuant to the terms of the Indentures relating
thereto, to guaranty the obligations of the Parent under the Senior Notes.
(S)9. CERTAIN NEGATIVE COVENANTS. The Parent and each of the Borrowers
jointly and severally covenant and agree that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Agent has any obligation to issue,
extend or renew any Letters of Credit hereunder:
(S)9.1. RESTRICTIONS ON INDEBTEDNESS. The Parent and each of the
Borrowers will not, and the Parent will not permit any of its other 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 Agent arising under any of the
Loan Documents;
(b) Indebtedness of the Borrowers or the Parent or their Subsidiaries
in respect of current liabilities incurred in the ordinary course of
business not incurred through (i) the borrowing of money, or (ii) the
obtaining of credit except for credit on an open account basis customarily
extended and in fact extended in connection with normal purchases of goods
and services;
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(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of (S)8.8;
(d) Indebtedness 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 such Person 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) endorsements for collection, deposit or negotiation and warranties
of products or services, in each case incurred in the ordinary course of
business;
(f) Indebtedness existing on the Closing Date of this Agreement and
listed and described on Schedule 9.1 hereto and Indebtedness issued to
refinance or replace such Indebtedness, provided that (i) the obligor on
the Indebtedness so refinanced or replaced is the obligor on such
refinancing or replacement Indebtedness, (ii) the aggregate amount of such
refinancing or replacement Indebtedness plus the amount of Indebtedness
listed on Schedule 9.1 which is still outstanding does not exceed the
aggregate principal amount of the Indebtedness set forth on Schedule 9.1
hereto (such principal amount to include commitments under revolving credit
facilities), (iii) such refinancing or replacement Indebtedness has a final
maturity date no earlier than December 1, 2002, (iv) such Indebtedness is
on terms and conditions (including, without limitation, terms relating to
interest rate, covenants, defaults, mandatory prepayments and the ability
of such Subsidiary to make dividends or loans to the Parent or the
Borrowers) not materially more onerous to the Borrower or such Subsidiary
than the Indebtedness set forth on Schedule 9.1 hereto, (v) if secured,
such Indebtedness is not secured by liens on any assets of the Borrower or
such Subsidiary which were not previously subject to liens securing the
Indebtedness set forth on Schedule 9.1 hereto; and (vi) after giving effect
to the incurrence of such refinancing or replacement Indebtedness no
Default or Event of Default shall have occurred and be continuing and the
Borrower shall be in compliance with the borrowing limitations set forth in
(S)2.1;
(g) (i) Indebtedness incurred after the date hereof in connection with
the acquisition or construction (and within 120 days of such acquisition or
construction) of any real or personal property by the Parent, the Borrowers
or any other Subsidiary of the Parent and Indebtedness assumed in
connection with any acquisition (whether of assets or stock) of a business
by any of such Persons, including Indebtedness issued to refinance or
replace such Indebtedness so long as such refinancing or replacement
Indebtedness otherwise complies with the criteria set forth in
(S)(S)9.1(f)(i), (ii), (iv), (v) and (vi) (without reference to Schedule
9.1 hereto) and (ii) Capitalized Leases; provided (A) that the aggregate
principal amount of all such Indebtedness under this clause (g) shall not
exceed $50,000,000 at any time and (B) after giving effect to the
incurrence of any such Indebtedness no Default or Event of Default shall
have occurred and be continuing and the Borrower shall be in compliance
with the borrowing limitations set forth in (S)2.1;
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(h) Indebtedness of a wholly-owned Subsidiary of the Parent or a
Borrower owing to the Parent or such Borrower, provided that the Investment
corresponding to such Indebtedness is permitted pursuant to (S)9.3(e);
(i) contingent obligations arising in connection with (i) surety,
performance or other similar bonds obtained in the ordinary course of
business, consistent with past practices, and (ii) standby letters of
credit issued in lieu of such bonds;
(j) Indebtedness in respect of the Senior Notes and guaranties thereof
in an aggregate principal amount not to exceed $280,000,000;
(k) Indebtedness of the Parent or either of the Borrowers with respect
to the SWATH Vessel in an aggregate principal amount not to exceed
$10,000,000;
(l) additional unsecured subordinated Indebtedness in an aggregate
principal amount and on terms and conditions (including, without
limitation, with respect to tenor, interest rate, and terms of the
subordination provisions relating thereto) acceptable to the Agent and the
Majority Banks, in their sole discretion;
(m) additional unsecured Indebtedness in an aggregate principal amount
not to exceed $10,000,000; and
(n) Indebtedness of the Parent consisting of guaranties of
Indebtedness of Saevik Supply or its Subsidiaries permitted pursuant to
(S)9.1(f) and (S)9.1(g).
(S)9.2. RESTRICTIONS ON LIENS. The Parent and each of the Borrowers will
not, and the Parent will not permit any of its other Subsidiaries to, (a) 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; (b) 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; (c) 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; (d) suffer to exist for a period of more than sixty (60) 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; (e) sell, assign,
pledge or otherwise transfer any accounts, contract rights, general intangibles,
chattel paper or instruments, with or without recourse; or (f) enter into or
permit to remain in effect any agreement by which such Person agrees not to
encumber, mortgage, pledge, restrict or grant a security interest in any of its
assets, provided that the Parent, each of the Borrowers and any other Subsidiary
of the Parent may create or incur or suffer to be created or incurred or to
exist any one or more of the following Permitted Liens:
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(i) liens to secure taxes, assessments and other government charges
in respect of obligations not overdue or liens on properties to secure
claims for labor, material or supplies or other Vessel operating expenses
in respect of obligations not overdue;
(ii) deposits or pledges made in connection with, or to secure
payment of, payroll taxes, workmen's compensation, unemployment insurance,
old age pensions or other social security obligations;
(iii) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and performance bonds and other
obligations of a similar nature, in each case made or incurred in the
ordinary course of business and in respect of obligations which are not
overdue;
(iv) liens on properties in respect of judgments or awards, the
Indebtedness with respect to which is permitted by (S)9.1(d) hereof;
(v) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
(vi) encumbrances 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 such Person is a party, and other minor liens or
encumbrances none of which in the opinion of such Person interferes
materially with the use of the property affected in the ordinary conduct of
the business of such Person, which defects do not individually or in the
aggregate have a materially adverse effect on the business of the Parent
and its Subsidiaries on a consolidated basis;
(vii) liens outstanding on the Closing Date and listed on Schedule
9.2 attached hereto and liens securing replacement or refinancing
Indebtedness permitted pursuant to (S)9.1(f), provided that (i) such liens
do not extend to any property of such Person not previously subject to a
lien securing the Indebtedness set forth on Schedule 9.2 hereto; and (ii)
after giving effect to incurrence of such lien no Default or Event of
Default shall have occurred and be continuing and the Borrower shall be in
compliance with the borrowing limitations set forth in (S)2.1;
(viii) security interests in and mortgages or negative pledges on
real or personal property acquired or constructed after the Closing Date
and liens on assets acquired subject to such liens or negative pledges, to
secure Indebtedness of the type and amount permitted by (S)9.1(g) hereof,
incurred or assumed in connection with the acquisition of such property,
which security interests, mortgages or negative pledges cover only the real
or personal property so acquired (and the accounts, contracts and insurance
proceeds associated with such property);
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(ix) liens in favor of the Agent for the benefit of the Banks and the
Agent under the Loan Documents; and
(ix) liens on the SWATH Vessel, charters thereof and construction and
related agreements with respect thereto, to secure the Indebtedness
permitted by (S)9.1(k) hereof.
(S)9.3. RESTRICTIONS ON INVESTMENTS. The Parent and each of the Borrowers
will not, and the Parent will not permit any of its other Subsidiaries to, make
or permit to exist or to remain outstanding any Investment except:
(a) Investments in marketable direct or guaranteed obligations of the
United States of America, the Netherlands or Norway that mature within one
(1) year from the date of purchase by such Person and repurchase agreements
relating to the foregoing;
(b) Investments in demand deposits, certificates of deposit, bankers
acceptances and time deposits of commercial banks organized under the laws
of any country which is a member of the OECD (having total assets in excess
of $1,000,000,000);
(c) Investments in 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
▇▇▇▇▇'▇ Investors Service, Inc. and not less than "A 1" if rated by
Standard and Poor's Ratings Group or similar Dutch or Norwegian securities;
(d) Investments existing on the Closing Date and listed on Schedule
9.3 attached hereto;
(e) (i) Investments by the Parent, a Borrower or a Guarantor in a
Borrower or a Guarantor; and (ii) Investments by the Parent or a Borrower
in non-Guarantor Subsidiaries; provided that (A) the aggregate amount of
all such Investments made pursuant to this (S)9.3(e)(ii) shall not exceed
$30,000,000, (B) no Default or Event of Default exists at the time of the
making of such Investment or would result therefrom; and (C) the proceeds
of such Investment shall be used by such Subsidiary only to repay
outstanding Indebtedness owed to third parties not Affiliated with the
Parent or any of its Subsidiaries.
(f) Investments in joint ventures and non-Guarantor Subsidiaries in
lines of business related to the Borrowers' business not to exceed
$25,000,000 in the aggregate; and
(g) Investments by the Parent in the Swath Subsidiary in an aggregate
amount not to exceed $4,000,000.
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(S)9.4. DISTRIBUTIONS. None of the Borrowers nor the Parent will make
any Distributions other than (a) Distributions by the Borrowers to the Parent in
an aggregate amount for all Borrowers not to exceed in any one fiscal year of
the Borrowers the greater of (i) the sum of (A) the scheduled payments of
principal and interest under the Senior Notes for such fiscal year plus (B) the
Borrowers' allocable share of income taxes, franchise taxes, professional fees
and other operating expenses for such year (it being understood that, with
respect to the amount of each Borrower's allocable share of income taxes, such
amount shall not exceed the amount of income taxes for which such Borrower would
have been liable had the accounts of such Borrower not been consolidated with
the accounts of the Parent) and (ii) an amount equal to twenty-five percent
(25%) of the net income of the Borrowers for such fiscal year; (b) Distributions
by the Borrowers to the Parent in an aggregate amount for all such Distributions
made after the Closing Date not to exceed $25,000,000; and (c) Distributions by
the Parent in an aggregate amount for all such Distributions made after the
Closing Date not to exceed $25,000,000, consisting of the purchase or redemption
by the Parent of the capital stock of the Parent; provided that no Distribution
(other than Distributions in respect of taxes) shall be made if, after giving
effect to such Distribution or such payment of principal or interest under the
Senior Notes, a Default or Event of Default shall have occurred and be
continuing.
(S)9.5. MERGER, CONSOLIDATION AND SALE OF ASSETS.
(S)9.5.1. MERGERS AND ACQUISITIONS. The Parent and each of the
Borrowers will not, and the Parent will not permit any of its other
Subsidiaries to, become a party to any merger or consolidation, except so
long as no Default or Event of Default then exists or would result
therefrom, (i) the merger or consolidation of one or more of the
Subsidiaries of the Parent with and into the Parent, (ii) the merger or
consolidation of two or more Subsidiaries of the Parent provided, that in
the case of the merger of a guarantor Subsidiary with a non-guarantor
Subsidiary, the guarantor Subsidiary shall be the surviving corporation in
such merger, or (iii) so long as such merger would not otherwise violate
this Agreement, the merger of one or more other corporations with and into
the Parent, a Borrower or a Subsidiary of a Borrower, provided that in the
case of any merger permitted under this (S)9.5.1, if such merger or
consolidation involves either of the Borrowers, such Borrower is the
surviving corporation. The Parent and each of the Borrowers will not, and
the Parent will not permit any of its other Subsidiaries to agree to or
effect any asset acquisition of a business which is not engaged primarily
in a line of business substantially similar to the business now conducted
by the Borrowers.
(S)9.5.2. DISPOSITION OF ASSETS. The Parent and each of the
Borrowers will not, and the Parent will not permit any of its other
Subsidiaries to, become a party to or agree to or effect any sale or other
disposition of assets, provided, that the Parent, the Borrowers and the
Parent's other Subsidiaries may sell or otherwise dispose of any assets so
long as:
(i) immediately prior to and after, and after giving effect to such
sale or other disposition, no Default or Event of Default shall then exist;
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(ii) the aggregate net book value of all such assets sold or
otherwise disposed of during the period of the four consecutive fiscal
quarters most recently ended prior to the date of such sale or disposition
shall not exceed an amount equal to five percent (5%) of Consolidated Net
Tangible Assets, determined as at the end of the most recently ended fiscal
quarter;
(iii) each such sale is to a third party on an arms length basis for
cash in an amount representing fair and reasonable market value therefor;
and
(iv) the Borrowers shall use the net proceeds of such sale or
disposition to prepay the principal balance of the Loans, if such
disposition of assets would otherwise result in a violation of (S)10.4
hereof.
(S)9.6. COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as otherwise set forth
on Schedule 7.18 attached hereto, the Parent and each of the Borrowers will not,
and the Parent will not permit any of its other Subsidiaries to, (a) use any of
the real estate or any portion thereof or any Vessel for the handling,
processing, storage or disposal of Hazardous Substances, except in accordance in
all material respects with applicable Environmental Laws, (b) cause or permit to
be located on any of the real estate any underground tank or other underground
storage receptacle for Hazardous Substances, except in accordance in all
material respects with applicable Environmental Laws, (c) generate any Hazardous
Substances on any of the real estate or any Vessel, except in accordance in all
material respects with applicable Environmental Laws, (d) conduct any activity
at any real estate 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
on or from such Vessel, except in accordance in all material respects with
applicable Environmental Laws, or (e) otherwise conduct any activity at any real
estate or on any Vessel or use any real estate or any Vessel in any manner that
would violate, in any material respect, any Environmental Law or bring such real
estate or Vessel in violation, in a material respect, of any Environmental Law.
(S)9.7. EMPLOYEE BENEFIT PLANS. None of the Borrowers nor the Parent nor
any ERISA Affiliate will:
(a) engage in any "prohibited transaction" within the meaning of
(S)406 of ERISA or (S)4975 of the Code which could result in a material
liability for the Parent or any of its Subsidiaries; or
(b) sponsor, maintain, make contributions to or incur liabilities in
respect of any Guaranteed Pension Plan or Multiemployer Plan.
(S)9.8. BUSINESS ACTIVITIES. None of the Borrowers, the Guarantors nor the
Parent will engage directly or indirectly (whether through Subsidiaries or
otherwise) in any type of business other than business involving the operation,
ownership or management of vessels used for transportation or service.
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(S)9.9. CHANGE OF CHIEF EXECUTIVE OFFICE OR CORPORATE NAME. None of the
Borrowers, the Guarantors nor the Parent will change its chief executive office,
federal employer identification number or registered number (as the case may be)
or its corporate name, unless it shall have (a) given the Banks at least 30
days' advance written notice of such change, and (b) filed in all necessary
jurisdictions such UCC-3 financing statements or other documents as may be
necessary to continue without impairment or interruption the perfection and
priority of the liens on the Collateral in favor of the Agent pursuant to the
Security Documents.
(S)9.10. FISCAL YEAR. The Parent and its Subsidiaries will not change the
date of the end of its fiscal year from that set forth in (S)7.22 hereof.
(S)9.11. TRANSACTIONS WITH AFFILIATES. Except as otherwise expressly
permitted by the terms hereof, the Parent and each of the Borrowers will not and
will not permit any of the Parent's other Subsidiaries to engage in any
transaction with any Affiliate on terms more favorable to such Affiliate than
would have been obtainable on an arm's-length basis, considered from the
perspective of the Parent or such Borrower or Subsidiaries, as the case may be.
(S)9.12. MODIFICATION OF CERTAIN DOCUMENTS. The Parent and the Borrowers
will not and will not permit the Parent's other Subsidiaries to, amend,
supplement or waive in any material respect any of the terms or conditions of
the Senior Notes as set forth in the forms thereof delivered to the Agent on or
prior to the Closing Date.
(S)9.13. UPSTREAM LIMITATIONS. The Parent and the Borrowers will not, nor
will the Parent permit any of its Subsidiaries to, enter into any agreement,
contract or arrangement (other than this Agreement and the other Loan Documents)
restricting the ability of any Subsidiary of the Parent to pay or make dividends
or distributions in cash or kind or to make loans or advances; provided that
this limitation does not apply (i) to the SWATH Subsidiary, (ii) to other
Subsidiaries that are not Restricted Subsidiaries, (iii) to other special
purpose non-Guarantor Subsidiaries formed after the date hereof the Investment
in which is permitted pursuant to (S)9.3(f), or (iv) to restrictions on
dividends or distributions arising from an event of default under an agreement
by Saevik Supply or its Subsidiaries governing Indebtedness permitted under
(S)9.1(f) and (S)9.1(g) hereof.
(S)9.14. INCONSISTENT AGREEMENTS. The Parent and the Borrower will not,
nor will the Parent permit any of its Subsidiaries to, enter into any contract,
arrangement or agreement containing any provision which would be violated or
breached by the performance by the Parent, the Borrowers or any of the Parent's
other Subsidiaries of its obligations hereunder, under any of the Loan
Documents.
(S)10. FINANCIAL COVENANTS.
(S)10.1. DEBT SERVICE COVERAGE RATIO. The Parent and the Borrowers will
not permit the Debt Service Coverage Ratio, determined at the end of each fiscal
quarter of the Parent,
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commencing with the fiscal quarter ending March 31, 1998, to be less than 1.35:1
for the fiscal quarter ending March 31, 1998 and 1.5:1 for each fiscal quarter
thereafter.
(S)10.2. LEVERAGE RATIO. The Parent and the Borrowers will not, permit
the Leverage Ratio, determined as at the end of each fiscal quarter of the
Parent, to be more than 3.5 to 1.0.
(S)10.3. FUNDED DEBT TO NET WORTH. The Parent and the Borrowers will not,
at any time, permit the ratio of the consolidated Funded Debt of the Parent and
its Subsidiaries to the consolidated Net Worth of the Parent and its
Subsidiaries to exceed 2.0 to 1.
(S)10.4. MINIMUM MORTGAGED VESSEL VALUE. The Parent and the Borrowers
will not, at any time, permit the appraised fair market value of the Vessels
subject to a first priority preferred mortgage in favor of the Agent, for the
benefit of the Banks and the Agent, pursuant to the Security Documents (as
stated in the most current appraisals delivered to the Agent pursuant to
(S)8.4(h) hereof) to be less than 140% of the sum of (i) the Outstanding Loans,
plus (ii) the Maximum Drawing Amount, plus (iii) all Unpaid Reimbursement
Obligations.
(S)11. CLOSING CONDITIONS. The obligations of the Banks to amend and
restate the Existing Credit Agreement and to convert the loans outstanding under
the Existing Credit Agreement into Loans and the letters of credit outstanding
under the Existing Credit Agreement into Letters of Credit hereunder and to make
the initial Loans hereunder and of the Agent to issue the initial Letter of
Credit hereunder shall be subject to the satisfaction of the following
conditions precedent on or prior to the Closing Date:
(S)11.1. DELIVERY OF 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.
(S)11.2. CERTIFIED COPIES OF CORPORATE DOCUMENTS. Each of the Banks shall
have received from the Parent, each of the Borrowers and each of the Guarantors
a copy, certified by a duly authorized officer of such Person to be true and
complete on the Closing Date, of each of (a) its charter or other incorporation
documents as in effect on such date of certification, and (b) its by-laws as in
effect on such date (or certifying that there have been no changes to such
documents from the copies thereof delivered to the Banks and the Agent in
connection with the closing of the Existing Credit Agreement).
(S)11.3. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by the Parent, each of the Borrowers and
each of the Guarantors of this 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.
(S)11.4. INCUMBENCY CERTIFICATE. Each of the Banks shall have received
from the Parent, each of the Borrowers and each of the Guarantors an incumbency
certificate, dated as of the
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Closing Date, signed by a duly authorized officer of such Person, and giving the
name and bearing a specimen signature of each individual who shall be authorized
(a) to sign, in the name and on behalf of such Person, each of the Loan
Documents to which such Person is or is to become a party; (b) in the case of
each of the Borrowers, to make Loan Requests; and (c) to give notices and to
take other action on such Person's behalf under the Loan Documents.
(S)11.5. VALIDITY OF LIENS. The Security Documents shall be effective to
create in favor of the Agent a legal, valid and enforceable first (except for
Permitted Liens entitled to priority under applicable law) security interest in
the Collateral. The US Vessel Mortgage shall constitute a first preferred
mortgage as defined in 46 U.S.C. (S)31322. All filings, recordings, deliveries
of instruments and other actions necessary or desirable in the opinion of the
Agent to perfect, protect and preserve such security interests shall have been
duly effected. The Agent shall have received evidence thereof in form and
substance satisfactory to the Agent.
(S)11.6. PERFECTION CERTIFICATES AND LIEN SEARCH RESULTS. The Agent shall
have received from each of the Borrowers a completed and fully executed
Perfection Certificate and the results of UCC and other lien searches with
respect to its Collateral, indicating no encumbrances other than Permitted Liens
and otherwise in form and substance satisfactory to the Agent; provided that the
requirements of this (S)11.6 may be satisfied by receipt by the Agent of such
lien search results no later than 30 days after the Closing Date.
(S)11.7. CERTIFICATES OF INSURANCE. The Agent shall have received (a) 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 of the Security Documents and (b) certified copies of all
policies evidencing such insurance (or certificates therefore signed by the
insurer or an agent authorized to bind the insurer) showing the Agent as
additional insured or loss payee, as applicable.
(S)11.8. FINANCIAL CONDITION. The Banks shall have received the financial
statements referred to in (S)7.4 hereof, and the Banks shall be satisfied that
such financial statements fairly present the business and financial condition of
the Parent and its Subsidiaries as of the dates thereof and for the periods then
ended.
(S)11.9. SOLVENCY CERTIFICATE. Each of the Banks shall have received an
officer's certificate from each of the Parent, the Borrowers and the Guarantors
dated as of the Closing Date as to the solvency of such Person following the
consummation of the transactions contemplated hereby, which such certificates
shall be in form and substance satisfactory to the Banks.
(S)11.10. OPINIONS OF COUNSEL. Each of the Banks and the Agent shall have
received a favorable opinion addressed to the Banks and the Agent, dated as of
the Closing Date, in form and substance satisfactory to the Banks and the Agent,
from: Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P., counsel to
the Parent and the Borrowers.
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(S)11.11. PAYMENT OF FEES AND EXPENSES. The Borrowers shall have paid to
the Agent for the accounts of the Banks, the Closing Fees pursuant to (S)5.1
hereof, all fees and expenses of the Agent's special counsel through the Closing
Date, and all other amounts to be paid pursuant to (S)16 as accrued through the
Closing Date. The Borrowers shall have paid all interest, commitment fees and
any other fees and expenses in respect of the Existing Credit Agreement through
the Closing Date, calculated as of the Closing Date (pro-rated in the case of
any fractional periods).
(S)11.12. BORROWING NOTICE. The Borrowers shall have delivered to the
Agent a Loan Request with respect to any Loan requested to be made on the
Closing Date.
(S)11.13. APPRAISALS OF VESSELS, CLASS CONFIRMATIONS. The Agent shall
have received from marine surveyors satisfactory to the Agent a market value
appraisal of each of the Vessels owned by the Borrowers subject to a Vessel
Mortgage . Such appraisals shall be satisfactory to the Agent in all respects.
The Agent shall have received a certificate from the classification society with
respect to each such Vessel, issued as of a recent date and indicating that such
Vessel is in compliance with the requirements of applicable law for use as
intended.
(S)12. CONDITIONS TO ALL BORROWINGS. Each Banks' obligation to make any
Loan and of the Agent to issue, extend or renew any Letters of Credit, whether
on or after the Closing Date, shall also be subject to the satisfaction of the
following conditions precedent:
(S)12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of the Parent and its Subsidiaries contained in
this Agreement, the other Loan Documents, or in any document or instrument
delivered pursuant to or in connection with this 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 or the issuance, extension or renewal of such Letter
of Credit, 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
Agreement and the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
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.
(S)12.2. 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. It shall not
be unlawful for the Agent, with respect to any request relating to the issuance,
extension or renewal of a Letter of Credit, to issue, extend, or renew, or for
any Bank to participate in the issuance, extension or renewal of, such Letter of
Credit.
(S)12.3. 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.
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(S)12.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with
the transactions contemplated by this Agreement, the other Loan Documents and
all other documents incident hereto and thereto shall be satisfactory in
substance and in form to the Banks and to the Agent and the Agent's Special
Counsel, and the Banks, the Agent and such counsel shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Agent may reasonably request.
(S)13. EVENTS OF DEFAULT: ACCELERATION; ETC.
(S)13.1. 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 Borrowers 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 Borrowers shall fail to pay any interest on the Loans, the
Commitment Fee, any Letter of Credit Fee or other sums due hereunder or
under any of the other Loan Documents owing by the Borrowers, within three
(3) 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) (i) the Borrowers or the Parent shall fail to comply with any of
the covenants contained in (S)(S)8.4, 8.5, the first sentence of 8.6 or 9
hereof, or (ii) the Borrowers or the Parent shall fail to comply with any
of the covenants contained in (S)10 hereof and such failure continues for
fourteen (14) days;
(d) the Borrowers or the Parent or any Guarantor 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 (S)13.1) for
thirty (30) days after written notice of such failure has been given to the
Parent by the Agent;
(e) any representation or warranty of the Parent, either Borrower or
any Guarantor in this Agreement or any of the other Loan Documents or in
any other document or instrument delivered pursuant to or in connection
with this 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 Parent, the Borrowers, any Guarantor or any of the Parent's
other Subsidiaries (other than Subsidiaries which are not Restricted
Subsidiaries) shall fail to pay at maturity, or within any applicable
period of grace, any obligation for borrowed money in excess of $1,000,000
or credit received or in respect of any Capitalized Leases,
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or fail to observe or perform any material term, covenant or agreement
contained in any agreement by which it is bound, evidencing or securing
borrowed money in excess of $1,000,000 or credit received or in respect of
any Capitalized Leases for such period of time as would permit (assuming
the giving of appropriate notice if required) the holder or holders thereof
or of any obligations issued thereunder to accelerate the maturity thereof;
(g) the Parent, the Borrowers or any of the Parent's other
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 any such Person
or of any substantial part of the assets of any such Person or shall
commence any case or other proceeding relating to any such Person 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 any such Person and such Person shall indicate its approval
thereof, consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Parent, the Borrowers
or any of the Parent's other 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 any such Person 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 Parent, the Borrowers or any of the Parent's other
Subsidiaries that, with other outstanding final judgments, undischarged,
against such Persons exceeds in the aggregate $1,000,000;
(j) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof 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 Parent, the Borrowers or any of the Parent's other
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;
(k) the Parent, the Borrowers or any of the Parent's other
Subsidiaries shall be enjoined, restrained or in any way prevented by the
order of any court or any administrative or regulatory agency from
conducting any material part of its business;
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(l) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty, which in any such case causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of the Parent, the Borrowers or any of
the Parent's other Subsidiaries if such event or circumstance is not
covered by business interruption insurance and would have a material
adverse effect on the business or financial condition of the Parent and its
Subsidiaries, taken as a whole;
(m) the Parent, the Borrowers or any of the Parent's other
Subsidiaries shall be indicted for a national or federal crime, a
punishment for which could include the forfeiture of any assets of any such
Person having a fair market value in excess of $500,000;
(n) any person or group of persons (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, but excluding persons who are employees
of the Parent or a Subsidiary of the Parent) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities
and Exchange Commission under said Act) of 25% or more of the outstanding
shares of common stock of the Parent; or, during any period of twelve
consecutive calendar months, individuals who were directors of the Parent
on the first day of such period shall cease to constitute a majority of the
board of directors of the Parent;
(o) if the Parent shall at any time, legally or beneficially own less
than 100% of the shares of the voting common stock of each of the
Borrowers;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrowers declare all amounts owing with respect to this 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 Borrowers; provided that in the event of any
Event of Default specified in (S)(S)13.1(g), 13.1(h) or 13.1(j), all such
amounts shall become immediately due and payable automatically and without any
requirement of notice from the Agent or any Bank.
(S)13.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in (S)13.1(g), (S)13.1(h) or (S)13.1(j) shall occur, any
unused portion of the credit hereunder shall forthwith terminate and each of the
Banks shall be relieved of all further obligations, if any, to make Loans to the
Borrowers and the Agent 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, or if on any Drawdown Date or any date for issuing,
extending or renewing any Letter of Credit the conditions precedent to the
making of the Loans to be made on such Drawdown Date or (as the case may be) to
issuing, extending or renewing such Letter of Credit on such other date are not
satisfied, the Agent may and upon the request of the Majority Banks,
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shall, by notice to the Borrowers, 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 Agent shall be relieved of all
further obligations, if any, to issue, extend or renew Letters of Credit. If any
such notice is given to the Borrowers the Agent will forthwith furnish a copy
thereof to each of the Banks. No termination of the credit hereunder shall
relieve either of the Borrowers of any of the Obligations or any of their
existing obligations to any of the Banks arising under any other agreements or
instruments.
(S)13.3. 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 (S)13.1 hereof, each Bank, if
owed any amount with respect to the Loans or the Reimbursement Obligations, may
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 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 Agent or the holder of any Note or 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.
(S)13.4. DISTRIBUTION OF COLLATERAL PROCEEDS. Subject to the limitations
set forth in the proviso of Section 6 hereof, in the event that, following the
occurrence or during the continuance of any Default or Event of Default, the
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 Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies by
the Agent, for the exercise, protection or enforcement by the Agent of all
or any of the rights, remedies, powers and privileges of the Agent under
this Agreement or any of the other Loan Documents or in respect of the
Collateral (including, without limitation, the protection, insurance,
repair, costs of preparing for sale and sale of any Collateral) and to
support the provision of adequate indemnity to the Agent against all taxes
or liens which by law shall have, or may have, priority over the rights of
the Agent to such monies;
(b) Second, to all other Obligations in such order or preference as
the Majority Banks may determine; provided, that (i) distributions in
respect of such Obligations shall be made pari passu among Obligations with
respect to the Agent's fee payable pursuant to
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the Fee Letter and all other Obligations, (ii) Obligations owing to the
Banks with respect to each type of Obligation such as interest, principal,
fees and expenses shall be made among the Banks, pro rata and (iii) the
Agent may in its discretion make proper allowance 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 Agent of all of the
Obligations, to the payment of any obligations required to be paid pursuant
to (S)9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of
Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the Borrowers or
to such other Persons as are entitled thereto.
(S)14. SETOFF. Regardless of the adequacy of any collateral, during the
continuance of any Event of Default, any deposits or other sums credited by or
due from any of the Banks to the Borrowers and any securities or other property
of the Borrowers in the possession of such Bank may be applied to or set off by
such Bank against the payment of Obligations and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of the Borrowers to such Bank. Each of the Banks agrees
with each other Bank that (a) if an amount to be set off is to be applied to
Indebtedness of the Borrowers to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank or constituting Reimbursement Obligations owed to
such Bank, such amount shall be applied ratably to such other Indebtedness and
to the Indebtedness evidenced by all such Notes held by such Bank or
constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank
shall receive from either of the Borrowers, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of the
claim evidenced by the Notes held by, or constituting Reimbursement Obligations
owed to, such Bank by proceedings against such Borrower 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 owed 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 owed 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 it or Reimbursement Obligations
owed it, its proportionate payment as contemplated by this 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.
(S)15. THE AGENT.
(S)15.1. AUTHORIZATION. The 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 the
Agent, together with such powers as are reasonably incident thereto, provided
that no duties or responsibilities not expressly assumed
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herein or therein shall be implied to have been assumed by the Agent. The
relationship between the Agent and each of the Banks is that of an independent
contractor. The use of the term "Agent" is for convenience only and is used to
describe, as a form of convention, the independent contractual relationship
between the Agent and each of the Banks. Nothing contained in this Agreement or
any of the other Loan Documents shall be construed to create an agency, trust or
other fiduciary relationship between the Agent and any of the Banks. 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, the 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 Agent with respect to all
collateral security and guaranties contemplated by the Loan Documents. Such
actions include the designation of the 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 Agent. The Agent is hereby
authorized and empowered to release Collateral without the consent of the Banks
upon the sale of such Collateral pursuant to (S)9.5.2 hereof.
(S)15.2. EMPLOYEES AND AGENTS. The 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 Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrowers.
(S)15.3. NO LIABILITY. Neither the Agent nor any of its 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 the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
(S)15.4. NO REPRESENTATIONS. The Agent shall not be responsible for the
execution or validity or enforceability of this Agreement, the Notes, the
Letters of Credit, any of the other Loan Documents or any instrument at anytime
constituting, or intended to constitute, collateral security for the Notes, 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 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 Parent, the Borrowers or the
Guarantors, 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 the Notes or to inspect any of the properties,
books or records of the Parent or any
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of its Subsidiaries. The Agent shall not be bound to ascertain whether any
notice, consent, waiver or request delivered to it by the Parent, any of the
Borrowers, any Guarantor or any holder of any of the Notes shall have been duly
authorized or is true, accurate and complete. The Agent has not 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 Parent, any of the Borrowers or any of the Parent's
other Subsidiaries. Each Bank acknowledges that it has, independently and
without reliance upon the 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 Agreement.
(S)15.5. PAYMENTS.
(S)15.5.1. PAYMENTS TO AGENT. A payment by any of the Borrowers or
any Guarantor to the Agent hereunder or any of the other Loan Documents
for the account of any Bank shall constitute a payment to such Bank. The
Agent agrees promptly to distribute to each Bank its pro rata share of
payments received by the Agent, except as otherwise expressly provided
herein or in any of the other Loan Documents.
(S)15.5.2. DISTRIBUTION BY AGENT. If in the opinion of the 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 such distribution until its right to
make such 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 the Agent is to be repaid, each Person
to whom any such distribution shall have been made shall either repay to
the 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.
(S)15.5.3. DELINQUENT BANKS. Notwithstanding anything to the
contrary contained in this Agreement or any of the other Loan Documents,
any Bank that fails (a) to make available to the Agent its pro rata share
of any Loan or to purchase any Letter of Credit Participation or (b) to
comply with the provisions of (S)14 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
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 Borrowers, 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 Agent to distribute
such payments to such 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
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a delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans and Unpaid Reimbursement Obligations of
such 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.
(S)15.6. HOLDERS OF NOTES. The Agent may deem and treat the payee of any
Note or the purchaser of any Letter of Credit Participation as the absolute
owner 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.
(S)15.7. INDEMNITY. The Banks hereby ratably agree to indemnify and hold
harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrowers as
required by (S)16), and liabilities of every nature and character arising out of
or related to this Agreement, the Notes, or any of the other Loan Documents or
the transactions contemplated or evidenced hereby or thereby, or the Agent's
actions taken hereunder or thereunder, except to the extent that any of the same
shall be directly caused by the Agent's willful misconduct or gross negligence.
(S)15.8. AGENT AS BANK. In its individual capacity, BankBoston shall have
the same obligations and the same rights, powers and privileges in respect to
its Commitments and the Loans made by it, and as the holder of any of the Notes
and as the purchaser of any Letter of Credit Participations, as it would have
were it not also the Agent.
(S)15.9. RESIGNATION. The Agent may resign at any time by giving sixty
(60) days' prior written notice thereof to the Banks and the Borrowers. Upon
any such resignation, the Majority Banks shall have the right to appoint a
successor Agent. Unless a Default or Event of Default shall have occurred and
be continuing, such successor Agent shall be reasonably acceptable to the
Borrowers. If no successor Agent shall have been so appointed by the Majority
Banks and shall have accepted such appointment within thirty (30) days after the
retiring Agent's giving of notice of resignation, then the retiring Agent may,
on behalf of the Banks, appoint a successor Agent, which shall be a financial
institution having a rating of not less than A or its equivalent by Standard &
Poor's Ratings Group. Upon the acceptance of any appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations, if
any, hereunder. After any retiring Agent's resignation, the provisions of this
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.
(S)15.10. 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 Agent thereof. The Agent hereby agrees
that upon receipt of any notice under this (S)15.10 it shall promptly notify the
other Banks of the existence of such Default or Event of Default.
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(S)15.11. DUTIES IN THE CASE OF ENFORCEMENT. In case one or more Events
of Default has occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Agent shall, if (i) so requested by
the Majority Banks and (ii) the Banks have provided to the Agent such additional
indemnities and assurances against expenses and liabilities as the 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 Majority Banks may
direct the Agent in writing as to the method and the extent of any such sale or
other disposition, the Banks hereby ratably agreeing to indemnify and hold the
Agent harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
comply with any such direction to the extent that the Agent reasonably believes
the Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
(S)16. EXPENSES. The Borrowers hereby jointly and severally agree to pay
(a) the reasonable costs of producing and reproducing this Agreement, the other
Loan Documents and the other agreements and instruments mentioned herein, (b)
any taxes (including any interest and penalties in respect thereto) payable by
the Agent or any of the Banks (other than taxes based upon the Agent's or any
Bank's net income) on or with respect to the transactions contemplated by this
Agreement (the Borrowers hereby jointly and severally agreeing to indemnify the
Agent and each Bank with respect thereto), (c) the reasonable fees, expenses and
disbursements of the Agent's special counsel or any local counsel to the Agent
incurred in connection with the preparation, administration or interpretation of
the Loan Documents and other instruments mentioned herein, each closing
hereunder, and amendments, modifications, approvals, consents or waivers hereto
or hereunder and the termination hereof, (d) except as otherwise specified
herein, the fees, expenses and disbursements of the Agent incurred by the Agent
in connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein, including all engineering and
appraisal charges, (e) all reasonable out-of-pocket expenses (including without
limitation reasonable attorneys' fees and costs, which attorneys may be
employees of any Bank or the Agent, and reasonable consulting, accounting,
appraisal, investment banking and similar professional fees and charges)
incurred by any Bank or the Agent in connection with (i) the enforcement of or
preservation of rights under any of the Loan Documents against the Parent, any
of the Borrowers, any of the Guarantors or any of the Parent's other
Subsidiaries or the administration thereof after the occurrence of a Default or
Event of Default and (ii) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to any Bank's or the Agent's
relationship with the Parent, any of the Borrowers, any of the Guarantors or any
of the Parent's other Subsidiaries under the Loan Documents or in connection
with the transactions contemplated hereby and (f) all reasonable fees, expenses
and disbursements of any Bank or the Agent incurred in connection with UCC or
other lien searches, UCC filings or registration of any other Security
Documents, vessel mortgage recordings, or mortgage recordings. The covenants of
this (S)16 shall survive payment or satisfaction of payment of amounts owing
with respect to the Notes.
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(S)17. INDEMNIFICATION. The Borrowers jointly and severally agree to
indemnify and hold harmless the Agent and the Banks 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 Agreement or any of the other Loan Documents or
the transactions contemplated hereby or thereby, including, without limitation,
(a) any actual or proposed use by the Borrowers, the Parent or any of the
Parent's other Subsidiaries of the proceeds of any of the Loans or Letters of
Credit, (b) any actual or alleged infringement of any patent, copyright,
trademark, service ▇▇▇▇ or similar right of the Parent or any of the Borrowers
or any of the Parent's other Subsidiaries comprised in the Collateral, (c) the
Borrowers entering into or performing this Agreement or any of the other Loan
Documents or (d) with respect to the Parent 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 Agent shall be entitled to select their own counsel and, in
addition to the foregoing indemnity, the Borrowers hereby jointly and severally
agree to pay promptly the reasonable fees and expenses of such counsel. If, and
to the extent that the obligations of the Borrowers under this (S)17 are
unenforceable for any reason, the Borrowers hereby jointly and severally agree
to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The obligations of the
Borrowers under this (S)17 shall be "Obligations" hereunder. The covenants
contained in this (S)17 shall survive payment of satisfaction in full of all
other Obligations.
(S)18. 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 Parent, any of the Borrowers or any of the Guarantors pursuant to this
Agreement shall be deemed to have been relied upon by the Banks and the Agent,
notwithstanding any investigation heretofore or hereafter made by any of them,
and shall survive the making by the Banks of the Loans and the issuance,
extension or renewal of any Letters of Credit, as herein contemplated, and shall
continue in full force and effect so long as any Letter of Credit, or any amount
due under this 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 Agent 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 Agreement. All
statements contained in any certificate or other paper delivered to any Bank or
the Agent at any time by or on behalf of the Parent, any of the Borrowers or any
of the Guarantors pursuant to this Agreement or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by such Person hereunder.
(S)19. ASSIGNMENT AND PARTICIPATION.
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(S)19.1. 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 Agreement (including all or a
portion of its Commitment Percentage and Commitment and the same portion of
Loans owing to it and the Note held by it and its participating interest in the
risk relating to any Letters of Credit; provided that (a) each of the Agent and,
unless a Default or an Event of Default shall have occurred and be continuing,
the Borrowers shall have given its prior written consent to such assignment,
which consent will not be unreasonably withheld, (b) each such assignment shall
be of a constant, and not a varying, percentage of all the assigning Bank's
rights and obligations with respect to the Loans under this Agreement, (c) each
assignment shall be in a minimum amount of $5,000,000 or a larger integral
multiple of $1,000,000 (or less, if such assignment would be all of such Bank's
interests, rights and obligations in respect of its Loans), and (d) the parties
to such assignment shall execute and deliver to the 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 Agent of the
registration fee referred to in (S)19.3, be released from its obligations under
this Agreement.
(S)19.2. 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, 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 Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this 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 Parent, any of the
Borrowers, any of the Guarantors or any of the Parent's other Subsidiaries or
any other Person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by the Parent, any of the
Borrowers, any of the Guarantors and the Parent's other Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this 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
Agreement, together with copies of the most recent financial statements referred
to in (S)7.4 and (S)8.4 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 Agent 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
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taking or not taking action under this Agreement; (e) such assignee represents
and warrants that it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Loan Documents as are delegated
to the Agent 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
Agreement are required to be performed by it as a Bank; (h) such assignee
represents and warrants that it is legally authorized to enter into such
Assignment and Acceptance; and (i) such assignee acknowledges that it has made
arrangements with the assigning Bank satisfactory to such assignee with respect
to its pro rata share of Letter of Credit Fees, if any, in respect of
outstanding Letters of Credit and with respect to its pro rata share of
Commitment Fees.
(S)19.3. REGISTER. The 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 (a) the names and addresses of the Banks, (b) the Commitment
Percentages of the Banks from time to time, (c) the principal amount of the
Loans owing to the Banks from time to time, and (d) the 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
Borrowers, the Agent and the Banks may treat each Person whose name is recorded
in the Register as a Bank hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrowers 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 Agent a registration
fee in the sum of $3,500, as to which payment the Borrowers shall have no
responsibility.
(S)19.4. 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 Agent shall (a) record the information contained therein in
the Register, and (b) give prompt notice thereof to the Borrowers and the Banks
(other than the assigning Bank). Within five (5) Business Days after receipt of
such notice, the Borrowers, at their own expense, shall execute and deliver to
the 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 (S)19.4, the Borrowers shall deliver an opinion of counsel,
addressed to the Banks and the Agent, 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 Borrowers.
(S)19.5. 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 Agreement and the
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other Loan Documents; provided that (a) each such participation shall be in an
amount of $2,000,000 or a larger integral multiple of $1,000,000, (b) any such
sale or participation shall not affect the rights and duties of the selling Bank
hereunder to the Borrowers and (c) 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 Commitment of
such Bank as it relates to such participant, reduce the amount of any Commitment
Fee or Letter of Credit Fees to which such participant is entitled or extend any
regularly scheduled payment date for principal or interest.
(S)19.6. DISCLOSURE. The Parent and the Borrowers agree 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
Agreement to assignees or participants and potential assignees or participants
hereunder; provided that such assignees or participants or potential assignees
or participants shall agree (a) to treat in confidence such information unless
such information otherwise becomes public knowledge, (b) not to disclose such
information to a third party, except as required by law or legal process and (c)
not to make use of such information for purposes of transactions unrelated to
such contemplated assignment or participation.
(S)19.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any
assignee Bank is an Affiliate of the Parent or any of its Subsidiaries, 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 Agent pursuant to (S)13.1 or
(S)13.2, and the determination of the Majority Banks shall for all purposes of
this Agreement and the other Loan Documents be made without regard to such
assignee Bank's interest in any of the Loans. If any Bank sells a participating
interest in any of the Loans or Reimbursement Obligations to a participant, and
such participant is either of the Borrowers or an Affiliate of the Parent or any
of its Subsidiaries, then such transferor Bank shall promptly notify the 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 Agent pursuant to (S)13.1 or (S)13.2 to the extent that such participation
is beneficially owned by either of the Borrowers or any Affiliate of either of
the Borrowers, and the determination of the Majority Banks shall for all
purposes of this Agreement and the other Loan Documents be made without regard
to the interest of such transferor Bank in the Loans to the extent of such
participation.
(S)19.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Bank shall
retain its rights to be indemnified pursuant to (S)17 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 Borrowers and the Agent certification as to its exemption from deduction or
withholding of any
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United States federal income taxes. Anything contained in this (S)19 to the
contrary notwithstanding, any Bank may at any time pledge all or any portion of
its interest and rights under this Agreement (including all or any portion of
its Notes) to any of the twelve Federal Reserve Banks organized under (S)4 of
the Federal Reserve Act, 12 U.S.C. (S)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.
(S)19.9. ASSIGNMENT BY BORROWERS. The Borrowers shall not assign or
transfer any of their rights or obligations under any of the Loan Documents
without the prior written consent of each of the Banks.
(S)20. NOTICES, ETC. Except as otherwise expressly provided in this
Agreement, all notices and other communications made or required to be given
pursuant to this 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 telegraph, telecopy, facsimile or telex and confirmed by
delivery via courier or postal service, addressed as follows:
(a) if to the Parent or any of the Borrowers, at Trico Marine
Services, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: President, or at such other address for notice as the Parent and
the Borrowers shall last have furnished in writing to the Person giving the
notice, with a copy to Jones, Walker, Waechter, Poitevent, Carrere &
▇▇▇▇▇▇▇, L.L.P., Place St. ▇▇▇▇▇▇▇, ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.;
(b) if to the Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇, Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇, Managing Director, or such other
address for notice as the Agent shall last have furnished in writing to the
Person giving the notice; and
(c) if to any Bank, at such Bank's address set forth on Schedule 1.1
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.
(S)21. GOVERNING LAW. THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS
UNDER SEAL UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL
FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF SAID COMMONWEALTH (EXCLUDING THE LAWS APPLICABLE TO
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CONFLICTS OR CHOICE OF LAW). EACH OF THE BORROWERS AND THE PARENT AGREES THAT
ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR
ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH
BORROWER OR THE PARENT BY MAIL AT THE ADDRESS SPECIFIED IN (S)20. EACH OF THE
BORROWERS AND THE PARENT 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.
(S)22. HEADINGS. The captions in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
(S)23. COUNTERPARTS. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, and all of
which together shall constitute one instrument. In proving this 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.
(S)24. 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
Agreement nor any term hereof may be changed, waived, discharged or terminated,
except as provided in (S)26.
(S)25. WAIVER OF JURY TRIAL. The Parent and each of the Borrowers hereby
waives its right to a jury trial with respect to any action or claim arising out
of any dispute in connection with this Agreement, the Notes or any of the other
Loan Documents, any rights or obligations hereunder or thereunder or the
performance of such rights and obligations. Except as prohibited by law, the
Parent and each of the Borrowers 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 Parent and each of the Borrowers (a) certifies
that no representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledges that each of the Agent and the Banks have been induced to enter
into this Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
(S)26. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise expressly
provided in this Agreement, any term of this Agreement or of any other
instrument related hereto or mentioned herein may be amended with, but only
with, the written consent of the Parent, the Borrowers and the Majority Banks,
and any consent or approval required or permitted by this Agreement to be given
by one or more or all of the Banks may be given, and
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the performance or observance by the Parent and the Borrowers of any terms of
this Agreement 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 Majority Banks. Notwithstanding the foregoing, (i) the amount of the
respective Loans, the rate of interest on the Notes (other than interest
accruing pursuant to (S)5.8 following the effective date of any waiver by the
Majority Banks of the Default or Event of Default relating thereto), the term
of, and scheduled payments on, the Notes, the amount of the Commitments of the
Banks, and the rate of the Commitment Fee and the Letter of Credit Fees
hereunder may not be changed without the written consent of the Parent, the
Borrowers and the written consent of each Bank affected thereby; (ii) the
definitions of Majority Banks and of Commitment Percentage and this (S)26 may
not be amended without the written consent of all of the Banks; (iii) no
Collateral may be released without the written consent of all of the Banks if,
after giving effect to such release, the Parent and the Borrowers would not be
in compliance with (S)10.4 hereof; and (iv) the amount of the Letter of Credit
Fees payable for the Agent's account, (S)3 and (S)15 may not be amended without
the written consent of the Agent. 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 any Bank in exercising any
right shall operate as a waiver thereof or otherwise be prejudicial thereto. No
notice to or demand upon the Parent, the Borrowers or any Guarantor shall
entitle the Parent, the Borrowers or any Guarantor to other or further notice or
demand in similar or other circumstances.
(S)27. SEVERABILITY. The provisions of this 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 Agreement in any
jurisdiction.
(S)28. PARI PASSU TREATMENT.
(a) Notwithstanding anything to the contrary set forth herein, each
payment or prepayment of principal and interest received after the
occurrence of an Event of Default hereunder shall be distributed pari passu
among the Banks, in accordance with the aggregate outstanding principal
amount of the Obligations owing to each Bank (including its Letter of
Credit Participations and any Reimbursement Obligations owing to it)
divided by the aggregate outstanding principal amount of all Obligations
(including any Obligations not then due and payable).
(b) Following the occurrence and during the continuance of any Event of
Default, each Bank agrees that if it shall, through the exercise of a right
of banker's lien, setoff or counterclaim against the Borrowers (pursuant to
(s)14 or otherwise), including a secured claim under Section 506 of the
Bankruptcy Code or other security or interest arising from or in lieu of,
such secured claim, received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, obtain payment (voluntary or
involuntary) in respect of the Notes, Loans and other Obligations held by
it
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as a result of which the unpaid principal portion of the Notes and the
Obligations held by it shall be proportionately less than the unpaid
principal portion of the Notes and Obligations held by any other Bank, it
shall be deemed to have simultaneously purchased from such other Bank a
participation in the Notes and Obligations held by such other Bank, so that
the aggregate unpaid principal amount of the Notes, Obligations and
participations in Notes and Obligations held by each Bank shall be in the
same proportion to the aggregate unpaid principal amount of the Notes and
Obligations then outstanding as the principal amount of the Notes and other
Obligations held by it prior to such exercise of banker's lien, setoff or
counterclaim was to the principal amount of all Notes and other Obligations
outstanding prior to such exercise of banker's lien, setoff or
counterclaim; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this (s)28 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the
purchase price or prices or adjustments restored without interest.
(c) Following the occurrence and during the continuance of any Event of
Default, each Bank agrees that it shall be deemed to have, automatically
upon the occurrence of such Event of Default, purchased from each other
Bank a participation in the risk associated with the Notes and Obligations
held by such other Bank, so that the aggregate principal amount of the
Notes and Obligations held by each Bank shall be equivalent to such Bank's
Commitment Percentage as at the date of such Event of Default. Upon demand
by the Agent, made at the request of the Majority Banks, each Bank that has
purchased such participation shall pay the amount of such participation to
one or more bank(s) whose outstanding Loans and Letter of Credit
Participations exceed their respective Commitment Percentages as at such
date.
(d) The Borrowers expressly consent to the foregoing arrangements and
agree that any Person holding such a participation in the Notes and the
Obligations deemed to have been so purchased may exercise any and all
rights of banker's lien, setoff or counterclaim with respect to any and all
moneys owing by the Borrowers to such Person as fully as if such Person had
made a Loan directly to the Borrowers in the amount of such participation.
(s)29. TRANSITIONAL ARRANGEMENTS. On the Closing Date the Existing Credit
Agreement shall be amended and restated as set forth in this Agreement and the
rights and obligations of the parties evidenced by the Existing Credit Agreement
shall be evidenced by this Agreement and the other Loan Documents, the "Loans"
as defined in Existing Credit Agreement shall be converted to Loans hereunder
and the "Letters of Credit" as defined in the Existing Credit Agreement shall be
converted to Letters of Credit 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 Credit 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. The Existing Banks
agree to the collateral release of the "Vanuatu Vessel Mortgage," the "Parent
Pledge Agreements," the "Dutch Guaranty," the "Dutch Pledge Agreement," the
"Marine Assets Guaranty" and the "Marine Operators Guaranty," as those terms are
defined in the
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Existing Credit Agreement. The Existing Banks also agree to the partial release
of certain Vessels subject to the "US Vessel Mortgage," as such term is defined
in the Existing Credit Agreement.
(S)30. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
(S)30.1 SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY. The Parent
and the Borrowers acknowledge that from time to time financial advisory,
investment banking and other services may be offered or provided to the Parent
and/or the Borrowers or one or more of the Parent's other Subsidiaries, in
connection with this Agreement or otherwise, by a Section 20 Subsidiary. Each
of the Parent and the Borrowers, for itself and each of the Parent's other
Subsidiaries, hereby authorizes (a) such Section 20 Subsidiary to share with the
Agent and each Bank any information delivered to such Section 20 Subsidiary by
the Parent or the Borrowers or any of the Parent's other Subsidiaries, and (b)
the Agent and each Bank to share with such Section 20 Subsidiary any information
delivered to the Agent or such Bank by the Parent or the Borrowers or any of the
Parent's other Subsidiaries pursuant to this Agreement, or in connection with
the decision of such Bank to enter into this 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 Agreement. Such authorization
shall survive the payment and satisfaction in full of all of Obligations.
(S)30.2 CONFIDENTIALITY. Each of the Banks and the Agent 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 Parent, the Borrowers or any of the
Parent's other Subsidiaries pursuant to this Agreement that is identified by
such Person as being confidential at the time the same is delivered to the Banks
or the Agent, 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 (s)30, (b) to the extent required by statute, rule,
regulation or judicial process, (c) to counsel for any of the Banks or the
Agent, (d) to bank examiners or any other regulatory authority having
jurisdiction over any Bank or the Agent, or to auditors or accountants, (e) to
the Agent, any Bank or any Section 20 Subsidiary, (f) in connection with any
litigation to which any one or more of the Banks, the Agent 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 (s)30.1 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 (s)19.6 and this (s)30.2.
(S)30.3 PRIOR NOTIFICATION. Unless specifically prohibited by applicable
law or court order, each of the Banks and the Agent shall, prior to disclosure
thereof, notify the Parent and the Borrowers 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.
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(S)30.4 OTHER. In no event shall any Bank or the Agent be obligated or
required to return any materials furnished to it or any Section 20 Subsidiary by
the Parent, the Borrower or any of the Parent's other Subsidiaries. The
Obligations of each Bank under this (s)30 shall be binding upon any assignee of,
or purchaser of any participation in, any interest in any of the Loans or
Reimbursement Obligations from any Bank.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
TRICO MARINE OPERATORS, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
TRICO MARINE ASSETS, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
TRICO MARINE SERVICES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BANKBOSTON, N.A. individually and
as Agent
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
By:____________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BNY FINANCIAL CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:____________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assitant Vice President
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BANK OF SCOTLAND
/s/ ▇▇▇▇▇ ▇▇▇▇ TAT
By:__________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇ Tat
Title: Vice President
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK
BRANCH
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ HANS CHR KJELSRUD
By:__________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Chr. Kjelsrud
Title: First Vice First Vice
President President
CORESTATES BANK, N.A.
/s/ S. ▇▇▇▇▇ ▇▇▇▇▇
By:____________________________________
Name: S. ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
/s/ PHILLIPPE SOUSTRA
By:____________________________________
Name: Phillippe Soustra
Title: Senior Vice President
FIRST NATIONAL BANK OF COMMERCE
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
By:____________________________________
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title: Senior Vice President
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THE FUJI BANK, LIMITED
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Manager
HIBERNIA NATIONAL BANK
/s/ S. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By:____________________________________
Name: S. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
MEESPIERSON CAPITAL CORP.
/s/ ▇▇▇▇ ▇'▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇
By:________________________________________
Name: ▇▇▇▇ ▇'▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
Title: Managing Director Vice President
▇▇▇▇▇ FARGO BANK (TEXAS) NATIONAL ASSOCIATION
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By:____________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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