CREDIT AGREEMENT
among
HVIDE MARINE INCORPORATED,
as Borrower
BANKERS TRUST COMPANY,
as Administrative Agent
DEUTSCHE BANK SECURITIES INC.,
as Lead Arranger and Book Manager
and
MEESPIERSON CAPITAL CORP.,
as Syndication Agent
and Co-Arranger
and
The Various Persons
from time to time parties to this Agreement,
as Lenders
$ 225,000,000
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CREDIT AGREEMENT
DATED AS OF DECEMBER 15, 1999
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WHITE & CASE LLP
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CREDIT AGREEMENT dated as of December 15, 1999 among HVIDE
MARINE INCORPORATED, a corporation existing under the laws of Delaware, as
borrower (the "Borrower"), Bankers Trust Company ("BTCo"), as administrative
agent (in such capacity, the "Administrative Agent") for the Lenders from time
to time parties hereto, Deutsche Bank Securities, Inc. ("DBSI"), as lead
arranger and book manager (the "Lead Arranger"), and MeesPierson Capital Corp.
("MP"), as syndication agent and co-arranger (the "Syndication Agent") and the
Lenders.
W I T N E S S E T H:
WHEREAS, on November 2, 1999, the United States Bankruptcy
Court (the "Bankruptcy Court") approved the Disclosure Statement relating to the
First Amended Joint Plan of Reorganization dated November 1, 1999, pursuant to
Section 1125 of the Bankruptcy Code and entered an order relating to (i) the
solicitation of acceptances or rejections of the First Amended Joint Plan of
Reorganization (the "Reorganization Plan") and (ii) the hearing to consider
confirmation of the Reorganization Plan;
WHEREAS, on December 9, 1999, the US Bankruptcy Court
confirmed the Reorganization Plan and entered the Confirmation Order;
WHEREAS, the Borrower has applied to the Lenders for a term
loan, revolving credit and letter of credit facility in an aggregate amount not
to exceed $225,000,000 (subject to voluntary reductions in accordance with
Section 3.02), which may be used (x) to repay the amount owed by the Borrower
under its debtor-in-possession credit facility (the "DIP Facility") and (y) to
provide for working capital, capital expenditures and general corporate purposes
and payments of professional fees and expenses;
WHEREAS, subject to and upon the terms and conditions herein
set forth, and in the Reorganization Plan, the Lenders are willing to make
available to the Borrower the credit facilities provided for herein.
NOW, THEREFORE, IT IS AGREED:
Section 1. Loans.
1.01 Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Lender with a Tranche A Term Loan Commitment
severally agrees to make, on the Effective Date, a term loan (each, a "Tranche A
Term Loan" and, collectively, the "Tranche A Term Loans") to the Borrower, which
Tranche A Term Loans (i) shall be made and maintained as Base Rate Loans until
the 10th day following the Effective Date, and thereafter, at the option of the
Borrower, converted into, Base Rate Loans or Eurodollar Loans, provided that,
(A) except as otherwise specifically provided in Section 1.10(b), all Tranche A
Term Loans comprising the same Borrowing shall at all times be of the same Type
and (B) unless the Administrative Agent has determined that the Syndication Date
has occurred (at which time this clause (B) shall no longer be applicable), no
more than three Borrowings of Tranche A Term Loans to be maintained as
Eurodollar Loans may be incurred after the 10th day following the Effective Date
and prior to the 90th day after the Effective Date (each of which Borrowings of
Eurodollar Loans may only have an Interest Period of one month, and the first of
which Borrowings may only be made on a single date on or after the Effective
Date and on or before the sixth Business Day following the Effective Date and
the second and third of which Borrowings may only be made on the last day of the
Interest Period of the first such Borrowing and the second such Borrowing,
respectively) and (ii) shall be made by each Lender in that initial aggregate
principal amount as is equal to the Tranche A Term Loan Commitment of such
Lender on such date (before giving effect to any reductions thereto on such date
pursuant to Section 3.03(b)). Once repaid, Tranche A Term Loans incurred here-
under may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Lender with a Tranche B Term Loan Commitment severally agrees to
make, on the Effective Date, a term loan (each, a "Tranche B Term Loan" and,
collectively, the "Tranche B Term Loans") to the Borrower, which Tranche B Term
Loans (i) shall be made and maintained as Base Rate Loans until the 10th day
following the Effective Date, and thereafter, at the option of the Borrower,
converted into, Base Rate Loans or Eurodollar Loans, provided that, (A) except
as otherwise specifically provided in Section 1.10(b), all Tranche B Term Loans
comprising the same Borrowing shall at all times be of the same Type and (B)
unless the Administrative Agent has determined that the Syndication Date has
occurred (at which time this clause (B) shall no longer be applicable), no more
than three Borrowings of Tranche B Term Loans to be maintained as Eurodollar
Loans may be incurred after the 10th day following the Effective Date and prior
to the 90th day after the Effective Date (each of which Borrowings of Eurodollar
Loans may only have an Interest Period of one month, and the first of which
Borrowings may only be made on a single date on or after the Effective Date and
on or before the sixth Business Day following the Effective Date and the second
and third of which Borrowings may only be made on the last day of the Interest
Period of the first such Borrowing and the second such Borrowing, respectively)
and (ii) shall be made by each Lender in that initial aggregate principal amount
as is equal to the Tranche B Term Loan Commitment of such Lender on such date
(before giving effect to any reductions thereto on such date pursuant to Section
3.03(c)). Once repaid, Tranche B Term Loans incurred hereunder may not be
reborrowed.
(c) Subject to and upon the terms and conditions set forth
herein, each Lender with a Tranche C Term loan Commitment severally agrees to
make, on the Effective Date, a term loan (each, a "Tranche C Term Loan" and,
collectively, the "Tranche C Term Loans") to the Borrower, which Tranche C Term
Loans (i) shall be made and maintained as Base Rate Loans until the 10th day
following the Effective Date, and thereafter, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that, (A) except as otherwise specifically provided in Section
1.10(b), all Tranche C Term Loans comprising the same Borrowing shall at all
times be of the same Type and (B) unless the Administrative Agent has determined
that the Syndication Date has occurred (at which time this clause (B) shall no
longer be applicable), no more than three Borrowings of Tranche C Term Loans to
be maintained as Eurodollar Loans may be incurred after the 10th day following
the Effective Date and prior to the 90th day after the Effective Date (each of
which Borrowings of Eurodollar Loans may only have an Interest Period of one
month, and the first of which Borrowings may only be made on a single date on or
after the Effective Date and on or before the sixth Business Day following the
Effective Date and the second and third of which Borrowings may only be made on
the last day of the Interest Period of the first such Borrowing and the second
such Borrowing, respectively) and (ii) shall be made by each Lender in that
initial aggregate principal amount as is equal to the Tranche C Term Loan
Commitment of such Lender on such date (before giving effect to any reductions
thereto on such date pursuant to Section 3.03(d)). Once repaid, Tranche C Term
Loans incurred hereunder may not be reborrowed.
(d) Subject to and upon the terms and conditions set forth
herein, each Lender with a Revolving Loan Commitment severally agrees to make,
at any time and from time to time on or after the Effective Date and prior to
the Revolving Maturity Date, a loan or loans to the Borrower (each a "Revolving
Loan" and collectively the "Revolving Loans"), which Revolving Loans:
(i) shall be made and maintained as Base Rate Loans until the
10th day following the Effective Date, and thereafter, at the option of
the Borrower, be converted into, Base Rate Loans or Eurodollar Loans,
provided that, (A) except as otherwise specifically provided in Section
1.10(b), all Revolving Loans comprising the same Borrowing shall at all
times be of the same Type and (B) unless the Administrative Agent has
determined that the Syndication Date has occurred (at which time this
clause (B) shall no longer be applicable), no more than three
Borrowings of Revolving Loans to be maintained as Eurodollar Loans may
be incurred after the 10th day following the Effective Date and prior
to the 90th day after the Effective Date (each of which Borrowings of
Eurodollar Loans may only have an Interest Period of one month, and the
first of which Borrowings may only be made on a single date on or after
the Effective Date and on or before the sixth Business Day following
the Effective Date and the second and third of which Borrowings may
only be made on the last day of the Interest Period of the first such
Borrowing and the second such Borrowing, respectively);
(ii) may be repaid and reborrowed in accordance with the
provisions hereof and
(iii) shall not exceed for any Lender at any time outstanding
that aggregate principal amount which, when added to such Lender's
Proportionate Share of the aggregate amount of all Letter of Credit
Outstandings and outstanding Swingline Loans, equals the Revolving
Commitment of such Lender at such time.
(e) Subject to and upon the terms and conditions herein set
forth, the Swingline Lender in its individual capacity agrees to make at any
time and from time to time on and after the Effective Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each, a "Swingline
Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline
Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii) shall not exceed
in aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
Letter of Credit Outstandings at such time, an amount equal to the Total
Revolving Loan Commitment at such time, (iv) shall not exceed at any time
outstanding the Maximum Swingline Amount and (v) shall not be extended if the
Swingline Lender receives a written notice from the Administrative Agent or the
Required Lenders that has not been rescinded that there is a Default or an Event
of Default in existence hereunder. Notwithstanding the foregoing, the Swingline
Lender shall not be obligated to make Swingline Loans if a Lender Default
exists, unless the Swingline Lender has entered into arrangements satisfactory
to it and the Borrower to eliminate the Swingline Lender's risks with respect to
the participation in Swingline Loans of the relevant Defaulting Lender or
Lenders, including cash collateralizing, such Defaulting Lender's or Lenders'
Proportionate Share of outstanding Swingline Loans.
(f) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the other Lenders that its outstanding Swingline
Loans shall be funded with a Borrowing of Revolving Loans (provided that such
notice shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 9.09 or upon the exercise of any of
the remedies provided in the last paragraph of Section 9), in which case a
Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing,
a "Mandatory Borrowing") shall be made on the immediately succeeding Business
Day by all Lenders with a Revolving Loan Commitment (without giving effect to
any reductions thereto pursuant to the last paragraph of Section 9) pro rata
based on each Lender's Proportionate Share and the proceeds thereof shall be
paid directly to the Swingline Lender to repay the Swingline Lender for such
outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make
Revolving Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Lender notwithstanding (i)
that the amount of the Mandatory Borrowing may not comply with the minimum
amount for Borrowings otherwise required hereunder, (ii) whether any conditions
specified in Section 5 are then satisfied, (iii) whether a Default or an Event
of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the
amount of the Total Revolving Loan Commitment at such time. In the event that
any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the Borrower), then
each such Lender hereby agrees that it shall forthwith purchase (as of the date
the Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause such Lenders to share in such
Swingline Loans ratably based upon their respective Proportionate Shares
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 9), provided that (x) all
interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay the Swingline
Lender interest on the principal amount of participation purchased for each day
from and including the day upon which the Mandatory Borrowing would otherwise
have occurred but excluding the date of payment for such participation, at the
overnight Federal Funds Rate for the first three days and at the rate otherwise
applicable to Revolving Loans maintained as Base Rate Loans hereunder for each
day thereafter.
1.02 Notice of Borrowing. (a) Borrowings (other than Borrowing of
Swingline Loans) shall be made on notice from the Borrower to the Administrative
Agent at its Notice Office, given not later than 12:00 Noon New York City time
on the first Business Day prior to the date on which any proposed Borrowing
consisting of Base Rate Loans is requested to be made and on the third Business
Day prior to the date on which any proposed Borrowing consisting of Eurodollar
Loans is requested to be made. Each Notice of Borrowing shall be given by either
telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed
in writing, substantially in the form of Exhibit A (the "Notice of Borrowing"),
appropriately completed to specify the aggregate principal amount of the Loans
to be made pursuant to such Borrowing, the date of such Borrowing (which shall
be a Business Day), whether the Loans being made pursuant to such Borrowing
shall constitute Tranche A Term Loans, Tranche B Term Loans, Tranche C Term
Loans or Revolving Loans and whether the Loans being made pursuant to such
Borrowing are to be initially maintained as Base Rate Loans or Eurodollar Loans
and, if Eurodollar Loans, the initial Interest Period to be applicable thereto.
The Administrative Agent shall promptly give each Lender, which is required to
make Loans of the Tranche specified in the respective Notice of Borrowing,
notice of such proposed Borrowing, of such Lender's pro rata share thereof and
of the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing. Each Notice of Borrowing shall (x) (unless
deemed to be rescinded by the Borrower pursuant to Section 1.10(a) or cancelled
by the Borrower pursuant to Section 1.10(b)) be irrevocable by and binding on
the Borrower and (y) be executed by a Responsible Officer who shall certify
that, to the best of such officer's knowledge and without personal liability,
(a) the proposed extension of credit and its intended use are consistent with
the terms of the Credit Documents, (b) unless the Borrowing is incurred in order
to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrower and the
Subsidiary Guarantors have observed or performed all of their covenants and
other agreements and have satisfied in all material respects every condition
contained in the Credit Documents to be observed, performed or satisfied by the
Borrower or such Subsidiary Guarantors and (c) such officer has no knowledge of
any Default or Event of Default.
(b) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give the Swingline Lender not later than
2:00 p.m. (New York City time) on the date that a Swingline Loan is to be made,
written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be made hereunder. Each such notice shall be irrevocable and
specify in each case (A) the date of Borrowing (which shall be a Business Day)
and (B) the aggregate principal amount of the Swingline Loans to be made
pursuant to such Borrowing.
(c) The Borrower shall provide the Administrative Agent with a
specimen signature of each of the Responsible Officers, who shall be the sole
Persons authorized to request Loans on behalf of the Borrower. The
Administrative Agent shall be entitled to rely conclusively on such Responsible
Officers' authority to request Loans on behalf of the Borrower until the
Administrative Agent receives written notice to the contrary. The Administrative
Agent shall have no duty to verify the authenticity of the signature appearing
on any Notice of Borrowing and, with respect to an oral request for Loans, the
Administrative Agent, acting in good faith, shall have no duty to verify the
identity of any individual representing himself as one of the Responsible
Officers authorized to make such request on behalf of the Borrower. Neither the
Administrative Agent nor any of the Lenders shall incur any liability to the
Borrower as a result of acting upon any telephonic notice referred to in this
Section 1.02(c) which notice the Administrative Agent believes in good faith to
have been given by a Responsible Officer on behalf of the Borrower or for
otherwise acting reasonably and in good faith under this Section 1.02(c) and,
upon the funding of Loans by the Lenders in accordance with this Agreement,
pursuant to any such telephonic notice, the Borrower shall be deemed to have
made a Borrowing of Loans hereunder.
1.03 Minimum Amount of Each Borrowing; Limitation on Number of Borrowings. In a
Notice of Borrowing, the Borrower may request one or more Borrowings on a single
day; provided that at no time shall there be outstanding more than eight
Borrowings of Eurodollar Loans. Each Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Loans of the same Type and
shall be in an aggregate amount for all Lenders of not less than the Minimum
Borrowing Amount, if applicable, for such Borrowing and if greater than the
Minimum Borrowing Amount, such Borrowing shall be in an integral multiple of
$500,000. Unless otherwise requested in the applicable Notice of Borrowing, all
Loans shall be Base Rate Loans. The aggregate principal amount of each Borrowing
of Swingline Loans shall not be less than $50,000.
1.04 Disbursement of Funds. Except as otherwise specifically
provided in the immediately succeeding sentence, no later than 12:00 Noon (New
York City time) on the date specified in each Notice of Borrowing (or in the
case of Swingline Loans, not later than 3:00 P.M. (New York City time) on the
date specified pursuant to Section 1.02(b)), each Lender with a Commitment
within the respective Tranche will make available its pro rata portion of each
such Borrowing requested to be made on such date. All such amounts shall be made
available in Dollars and in immediately available funds at the Payment Office of
the Administrative Agent, and the Administrative Agent will make available to
the Borrower at the Payment Office the aggregate of the amounts so made
available by the Lenders (prior to 1:00 P.M. (New York City time) on such day to
the extent of funds actually received by the Administrative Agent prior to 12:00
Noon (New York City time) on such day) (or in the case of Swingline Loans, the
Swingline Lender shall make available the full amount thereof). Unless the
Administrative Agent shall have been notified by any Lender prior to the date of
Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Lender, the overnight Federal Funds Rate and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Lender from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any failure by such Lender to make Loans hereunder. No Commitment of any
Lender shall be increased or otherwise affected, and performance by the Borrower
shall not be excused, by the operation of this Section 1.04.
1.05 Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Lender shall be evidenced, to the
extent requested by such Lender, (i) if Tranche A Term Loan, by a promissory
note duly executed and delivered by the Borrower substantially in the form of
Exhibit B-1 with blanks appropriately completed in conformity herewith (each, a
"Tranche A Term Note" and, collectively, the "Tranche A Term Notes"), (ii) if
Tranche B Term Loan, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-2 with blanks appropriately
completed in conformity herewith (each, a "Tranche B Term Note" and,
collectively, the "Tranche B Term Notes"), (iii) if Tranche C Term Loan, by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B-3 with blanks appropriately completed in conformity herewith
(each, a "Tranche C Term Note" and collectively, the "Tranche C Term Notes"),
(iv) if Revolving Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-4, with blanks appropriately
completed in conformity herewith (each, a "Revolving Note" and, collectively,
the "Revolving Notes") and (v) if Swingline Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-5,
with blanks appropriately completed in conformity herewith (the "Swingline
Note").
(b) The Tranche A Term Note issued to each requesting Lender
shall (i) be executed by the Borrower, (ii) be payable to the order of such
Lender or its registered assigns and be dated the Effective Date (or, in the
case of Tranche A Term Notes issued after the Effective Date, be dated the date
of the issuance thereof), (iii) be in a stated principal amount equal to the
Tranche A Term Loan made by such Lender on the Effective Date (or, in the case
of Tranche A Term Notes issued after the Effective Date, be in a stated
principal amount equal to the outstanding principal amount of the Tranche A Term
Loan of such Lender on the date of the issuance thereof) and be payable in the
principal amount of Tranche A Term Loans evidenced thereby, (iv) mature on the
Tranche A Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment and mandatory repayment as provided in Sections 4.01 and
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(c) The Tranche B Term Note issued to each requesting Lender
shall (i) be executed by the Borrower, (ii) be payable to the order of such
Lender or its registered assigns and be dated the Effective Date (or, in the
case of Tranche B Term Notes issued after the Effective Date, be dated the date
of the issuance thereof), (iii) be in a stated principal amount equal to the
Tranche B Term Loan made by such Lender on the Effective Date (or, in the case
of Tranche B Term Notes issued after the Effective Date, be in a stated
principal amount equal to the outstanding principal amount of the Tranche B Term
Loan of such Lender on the date of the issuance thereof) and be payable in the
principal amount of Tranche B Term Loans evidenced thereby, (iv) mature on the
Tranche B Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment and mandatory repayment as provided in Sections 4.01 and
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(d) The Tranche C Term Note issued to each requesting Lender
shall (i) be executed by the Borrower, (ii) be payable to the order of such
Lender or its registered assigns and be dated the Effective Date (or, in the
case of Tranche C Term Notes issued after the Effective Date, be dated the date
of the issuance thereof), (iii) be in a stated principal amount equal to the
Tranche C Term Loan made by such Lender on the Effective Date (or, in the case
of Tranche C Term Notes issued after the Effective Date, be in a stated
principal amount equal to the outstanding principal amount of the Tranche C Term
Loan of such Lender on the date of the issuance thereof) and be payable in the
principal amount of Tranche C Term Loans evidenced thereby, (iv) mature on the
Tranche C Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment and mandatory repayment as provided in Sections 4.01 and
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(e) The Revolving Note issued to each requesting Lender shall
(i) be executed by the Borrower, (ii) be payable to the order of such Lender or
its registered assigns and be dated the Effective Date (or, in the case of
Revolving Notes issued after the Effective Date, be dated the date of the
issuance thereof), (iii) be in a stated principal amount equal to the Revolving
Loan Commitment of such Lender and be payable in the principal amount of the
Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment and mandatory
repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(f) The Swingline Note issued, if requested, to the Swingline
Lender shall (i) be executed by the Borrower, (ii) be payable to the order of
the Swingline Lender and be dated the Effective Date (or, in the case of any
Swingline Note issued after the Effective Date, be dated the date of the
issuance thereof), (iii) be in a stated principal amount equal to the Maximum
Swingline Amount and be payable in the principal amount of the outstanding
Swingline Loans evidenced thereby, (iv) mature on the Swingline Expiry Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans evidenced thereby and (vi) be entitled to the benefits of
this Agreement and the other Credit Documents.
(g) Each Lender will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will, prior to
any transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not affect
the Borrower's obligations in respect of such Loans.
1.06 Conversions and Continuations. On and after the 10th day
following the Effective Date, the Borrower shall have the option (x) to convert,
on any Business Day, all or a portion equal to not less than the Minimum
Borrowing Amount (if applicable) of the outstanding principal amount of the
Loans (other than Swingline Loans, which shall be maintained as Base Rate Loans)
made to it pursuant to one or more Borrowings of one Type of Loans into a
Borrowing of another Type of Loans (of the same Tranche) or (y) to continue an
outstanding Borrowing of Eurodollar Loans for an additional Interest Period upon
the expiration of the then current Interest Period, provided that (i) Eurodollar
Loans may be continued or converted into Base Rate Loans only on the last day of
an Interest Period applicable to the Loans being continued or converted, (ii) no
partial conversion of Eurodollar Loans shall reduce the outstanding principal
amount of Eurodollar Loans made pursuant to any single Borrowing to less than
the Minimum Borrowing Amount applicable thereto, (iii) Base Rate Loans may only
be converted into Eurodollar Loans if no Default under Section 9.01 or 9.09 or
Event of Default is in existence on the date of the conversion and the
Administrative Agent or the Required Lenders shall have determined in its or
their sole discretion not to permit such conversion and (iv) Swingline Loans may
not be converted pursuant to this Section 1.06. Each such conversion or
continuation shall be effected by the Borrower giving the Administrative Agent,
at its Notice Office prior to 12:00 Noon (New York City time) notice thereof (i)
at least three Business Days in advance in the case of conversions into
Eurodollar Loans and continuations thereof or (ii) on the Business Day of the
proposed conversion date in the case of conversions into Base Rate Loans (each a
"Notice of Conversion/Continuation") specifying the Loans to be so converted or
continued and, if to be converted into Eurodollar Loans or continued as
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion or continuation, as applicable. Notices of Conversion/Continuation
shall be given by telephone, telecopy, telex, facsimile or cable, confirmed
promptly in writing if by telephone.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans and Revolving Loans under this
Agreement shall be incurred from the Lenders pro rata on the basis of their
respective Tranche A Term Loan Commitments, Tranche B Term Loan Commitments,
Tranche C Term Loan Commitments or Revolving Loan Commitments, as the case may
be. Swingline Loans shall be incurred from the Swingline Lender.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan made to it from
the date the proceeds thereof are made available to the Borrower until the
conversion or maturity thereof (whether by acceleration or otherwise) at a rate
per annum which shall be equal to the sum of the Applicable Margin plus the Base
Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan made to it from the date of the
Borrowing thereof until the conversion or maturity thereof (whether by
acceleration or otherwise) at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the Applicable Margin plus the
Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
greater of (x) 2% per annum in excess of the rate otherwise applicable to Base
Rate Loans of the respective Tranche of Loans from time to time (or, if such
overdue amount is not interest or principal in respect of a Loan, 2% per annum
in excess of the rate otherwise applicable to Base Rate Loans which are
Revolving Loans from time to time) and (y) the rate which is 2% in excess of the
rate then borne by such Loans, in each case with such interest to be payable on
demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto, (iii) in respect of any Eurodollar Loan, on
any repayment, prepayment or conversion date (on the amount prepaid or
converted), and (iv) in respect of any Loan, at maturity (whether by
acceleration or otherwise).
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the interest rate applicable to Eurodollar Loans for each
Interest Period and shall promptly notify the Borrower and the Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. All Borrowings of Eurodollar Loans
shall, as selected by the Borrower, have an interest period (the "Interest
Period") of one, two, three or six months, or to the extent available to each
Lender, nine or twelve months, provided that:
(i) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date
of any conversion from a Borrowing of a different Type or continuation
of an existing Eurodollar Loan) and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest
Period would otherwise expire on a day which is not a Business Day but
is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day;
(iv) no Interest Period may be elected at a time when a Default
under Section 9.01 or Section 9.09 or an Event of Default is then in
existence if the Administrative Agent or the Required Lenders shall
have determined in its or their sole discretion not to permit such
election;
(v) no Interest Period in respect of any Borrowing of Tranche A
Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case
may be, shall be selected which extends beyond any date upon which a
mandatory repayment of such Tranche of Term Loans will be required to
be made under Section 4.02(d), (e) or (f), as the case may be, if the
aggregate principal amount of Tranche A Term Loans, Tranche B Term
Loans or Tranche C Term Loans, as the case may be, which have Interest
Periods which will expire after such date will be in excess of the
aggregate principal amount of Tranche A Term Loans, Tranche B Term
Loans or Tranche C Term Loans, as the case may be, then outstanding
less the aggregate amount of such required prepayment; and
(vi) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall extend beyond the respective Maturity Date for
such Tranche of Loans.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect a new Interest Period to be
applicable to such Borrowing as provided above (or is not permitted to elect an
Interest Period by virtue of the application of clause (iv) above), the Borrower
shall be deemed to have elected to convert such Borrowing into a Borrowing of
Base Rate Loans effective as of the expiration date of such current Interest
Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
any Lender shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the date
of this Agreement in any applicable law or governmental rule,
regulation, order or guideline, or any request or directive (whether or
not having the force of law) by any Governmental Authority (including
any central bank, Superintendent of Financial Institutions or other
comparable authority or agency) (whether or not having the force of
law) or in the interpretation or administration thereof and including
the introduction of any new law or governmental rule, regulation,
order, guideline or request, such as, for example, but not limited to:
(A) a change in the basis of taxation of payment to such Lender of the
principal of or interest on such Eurodollar Loan or any other amounts
payable hereunder (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Lender,
or any franchise tax based on the net income or profits of such Lender,
in either case pursuant to the laws of the United States of America,
the jurisdiction in which it is incorporated or organized or in which
its principal office or applicable lending office is located or any
subdivision thereof or therein), but without duplication of any amounts
payable in respect of Taxes pursuant to Section 4.04(a), or (B) a
change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances since
the date of this Agreement affecting such Lender or the interbank
Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan by such Lender has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by compliance by
such Lender in good faith with any governmental request (whether or not
having force of law) or (z) impracticable as a result of a contingency
occurring after the date of this Agreement which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower shall, subject to the provisions of Section 12.15 (to the extent
applicable) pay to such Lender, within 15 days after written demand therefor,
such additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in its sole
discretion shall determine) as shall be required to compensate such Lender for
such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to such Lender, showing the
basis for the calculation thereof, submitted to the Borrower by such Lender in
good faith shall, absent manifest error, be final and conclusive and binding on
all the parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law. Each of the
Administrative Agent and each Lender agrees that if it gives notice to the
Borrower of any of the events described in clause (i) or (iii) above, it shall
promptly notify the Borrower and, in the case of any such Lender, the
Administrative Agent, if such event ceases to exist. If any such event described
in clause (iii) above ceases to exist as to a Lender, the obligations of such
Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar
Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent notice by telephone, telecopy,
telex, facsimile or cable, immediately confirmed in writing if by telephone, on
the same date that the Borrower was notified by the affected Lender or the
Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days'
written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan, provided that, if more than
one Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Lender
determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any Governmental Authority
(including any central bank, Superintendent of Financial Institutions or other
comparable authority or agency) will have the effect of increasing the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitment
hereunder or its obligations hereunder, then the Borrower shall, subject to the
provisions of Section 12.15 (to the extent applicable), pay to such Lender, upon
its written demand therefor, such additional amounts as shall be required to
compensate such Lender or such other corporation for the increased cost to such
Lender or such other corporation or the reduction in the rate of return to such
Lender or such other corporation as a result of such increase or reduction of
capital as the case may be. In determining such additional amounts, each Lender
will act reasonably and in good faith and will use averaging and attribution
methods which are reasonable, provided that such Lender's reasonable good faith
determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
Each Lender, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall show the basis for calculation of such additional
amounts.
1.11 Compensation. The Borrower shall, subject to the
provisions of Section 12.15 (to the extent applicable), compensate each Lender,
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its Eurodollar Loans (but excluding any loss of anticipated
profits) which such Lender may sustain: (i) if for any reason (other than a
default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether
or not withdrawn by the Borrower or deemed withdrawn pursuant to Section
1.10(a)); (ii) if any repayment or conversion of any of its Eurodollar Loans
occurs on a date which is not the last day of the Interest Period with respect
thereto; (iii) if any prepayment of any of its Eurodollar Loans is not made on
any date specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay its Eurodollar
Loans when required by the terms of this Agreement or any Note held by such
Lender or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Applicable Lending Office. Each Lender agrees
that, upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), 1.10(c), 2.05 or 4.04 with respect to such Lender, it
will, if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Lender and its applicable lending
office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the rights of any Lender provided in Sections
1.10, 2.05 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations hereunder, (y) upon
the occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), 1.10(c), 2.05 or 4.04 with respect to any Lender which results in such
Lender charging to the Borrower increased costs in excess of those being
generally charged by the other Lenders or (z) as provided in Section 12.11(b) in
the case of certain refusals by a Lender to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which have
been approved by the Required Lenders, the Borrower shall have the right, if no
Default or Event of Default will exist immediately after giving effect to the
respective replacement, to replace such Lender (the "Replaced Lender") with one
or more other Eligible Transferee or Transferees, none of whom shall constitute
a Defaulting Lender at the time of such replacement (collectively, the
"Replacement Lender") reasonably acceptable to the Administrative Agent,
provided that (i) at the time of any replacement pursuant to this Section 1.13,
the Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to
said Section 12.04(b) to be paid at such time) pursuant to which the Replacement
Lender shall acquire all of the Commitments and outstanding Loans (or in the
case of the replacement of only (a) the Revolving Loan Commitment, the Revolving
Loan Commitment and outstanding Revolving Loans or (b) the outstanding Term
Loans of one or more Tranches, the outstanding Term Loans of the respective
Tranche or Tranches) of, and in each case (except for the replacement of only
the outstanding Term Loans of one or more Tranches of the respective Lender)
participations in Letters of Credit by, the Replaced Lender and, in connection
therewith, shall pay to (x) the Replaced Lender in respect thereof an amount
equal to the sum of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans (or in the case of the replacement of only
(I) the Revolving Loan Commitment, the outstanding Revolving Loans or (II) the
Term Loans of one or more Tranches, the outstanding Term Loans of such Tranche
or Tranches) of the Replaced Lender, (B) except in the case of the replacement
of only the outstanding Term Loans of one or more Tranches of a Replaced Lender,
an amount equal to all Unpaid Drawings that have not been repaid that have been
funded by (and not reimbursed to) such Replaced Lender, together with all then
unpaid interest with respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant to
Section 3.01 or participation in any Swingline Loan and (y) the Administrative
Agent an amount equal to such Replaced Lender's Proportionate Share (for this
purpose, determined as if the adjustment described in clause (y) of the
immediately succeeding sentence had been made with respect to such Replaced
Lender) of any Unpaid Drawing (which at such time remains an Unpaid Drawing that
has not been repaid) or participation in any Swingline Loan to the extent such
amount was not theretofore funded by such Replaced Lender, and (ii) all
obligations of the Borrower owing to the Replaced Lender (other than those (a)
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid or (b) relating to any
Tranche of Loans and/or Commitments of the respective Replaced Lender which will
remain outstanding after giving effect to the respective replacement) shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note or Notes executed by the Borrower, (x) the Replacement Lender
shall become a Lender hereunder and, unless the respective Replaced Lender
continues to have outstanding Term Loans or a Revolving Loan Commitment
hereunder, the Replaced Lender shall cease to constitute a Lender hereunder,
except with respect to indemnification provisions under this Agreement
(including, without limitation, Sections 1.08, 1.10, 1.11, 2.05, 4.04, 12.01 and
12.06), which shall survive as to such Replaced Lender and (y) in the case of a
replacement of a Defaulting Lender with a Non-Defaulting Lender, the
Proportionate Shares of the Lenders shall be automatically adjusted at such time
to give effect to such replacement (and to give effect to the replacement of a
Defaulting Lender with one or more Non-Defaulting Lenders).
Section 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may, no later than 30 days prior to
the Revolving Loan Maturity Date, request that any Issuing Lender issue, at any
time and from time to time on and after the Effective Date, (x) for the account
of the Borrower and for the benefit of any holder (or any trustee,
Administrative Agent or other similar representative for any such holders) of
L/C Supportable Obligations of the Borrower or any of its Subsidiaries, a letter
of credit in the form of an irrevocable standby letter of credit in a form
customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such letter of credit, a "Standby Letter
of Credit") in support of such L/C Supportable Obligations and (y) for the
account of the Borrower and for the benefit of sellers of goods and services to
the Borrower or any of its Subsidiaries, an irrevocable trade letter of credit
in a form customarily used by such Issuing Lender or in such other form as has
been approved by such Issuing Lender (each such letter of credit, a "Trade
Letter of Credit", and each such Trade Letter of Credit and each Standby Letter
of Credit, a "Letter of Credit") in support of commercial transactions of the
Borrower or any of its Subsidiaries. All Letters of Credit shall be issued on a
sight basis only.
(b) Letters of Credit shall be issued in Dollars.
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time would exceed $10,000,000 (the "LC Sublimit"), (ii) no
Letter of Credit shall be issued the Stated Amount of which, when added to all
Letter of Credit Outstandings at such time and the aggregate outstanding
principal amount of Revolving Loans and Swingline Loans at such time, would
exceed the Total Revolving Loan Commitment (after giving effect to any reduction
thereto on such date), (iii) each Standby Letter of Credit shall have an expiry
date occurring not later than one year after such Letter of Credit's date of
issuance (although any Letter of Credit may be extendable (whether automatically
or otherwise for successive periods of up to 12 months on terms acceptable to
the Issuing Lender but not beyond the fifth Business Day preceding the Revolving
Loan Maturity Date), and (iv) each Trade Letter of Credit shall have an expiry
date occurring not later than the earlier of (x) 180 days after the issuance
thereof and (y) the thirtieth Business Day preceding the Revolving Loan Maturity
Date.
(d) Each Issuing Lender may agree, in its sole discretion, and
BTCo in its capacity as an Issuing Lender hereby agrees that, in the event a
requested Letter of Credit is not issued by one of the other Issuing Lenders, it
will (subject to the terms and conditions contained herein), at any time and
from time to time on or after the Effective Date and no later than 10 days prior
to the Revolving Loan Maturity Date, following its receipt of the respective
Letter of Credit Request, issue for the account of the Borrower one or more
Letters of Credit in support of such L/C Supportable Obligations or commercial
transactions of the Borrower or its Subsidiaries as is permitted to remain
outstanding without giving rise to a Default or Event of Default hereunder;
provided that the respective Issuing Lender shall be under no obligation to
issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority
or arbitrator shall purport by its terms to enjoin or restrain such
Issuing Lender from issuing such Letter of Credit or any requirement of
law applicable to such Issuing Lender or any request or directive
(whether or not having the force of law) from any governmental
authority with jurisdiction over such Issuing Lender shall prohibit, or
request that such Issuing Lender refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Lender with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which such
Issuing Lender is not otherwise compensated) not in effect on the date
hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Issuing Lender as of the date
hereof and which such Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to
it;
(ii) such Issuing Lender shall have received notice from any
Lender prior to the issuance of such Letter of Credit of the type
described in the penultimate sentence of Section 2.02(b)or
(iii) a Lender Default exists, unless the Issuing Lender has
entered into arrangements satisfactory to it and the Borrower to
eliminate the Issuing Lender's risk with respect to the participation
in Letters of Credit of the relevant Defaulting Lender or Lenders,
including by cash collateralizing such Defaulting Lender's or Lenders'
Proportionate Share of the Letter of Credit Outstandings.
2.02 Letter of Credit Requests. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the respective Issuing Lender at least three
Business Days' (or such shorter period as is acceptable to the respective
Issuing Lender) by facsimile written notice thereof. Each notice shall be in the
form of Exhibit C (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.01(c). Unless the respective Issuing Lender has received notice
from any Lender before it issues a Letter of Credit that one or more of the
conditions specified in Section 5 are not then satisfied, or that the issuance
of such Letter of Credit would violate Section 2.01(c), then such Issuing Lender
may issue the requested Letter of Credit for the account of the Borrower in
accordance with such Issuing Lender's usual and customary practices. Upon its
issuance or amendment of any Standby Letter of Credit, the Issuing Lender shall
promptly notify the Borrower and the Administrative Agent, in writing, of such
issuance or amendment, which notice shall be accompanied by a copy of such
issuance or amendment. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender of such issuance or amendment, which notice
shall be accompanied, if requested by any Lender, by a copy of such issuance or
amendment.
2.03 Letter of Credit Participations. (a) Immediately upon the
issuance by any Issuing Lender of any Letter of Credit, such Issuing Lender
shall be deemed to have sold and transferred to each Lender with a Revolving
Loan Commitment, other than such Issuing Lender (each such Lender, in its
capacity under this Section 2.03, a "Participant"), and each such Participant
shall be deemed irrevocably and unconditionally to have purchased and received
from such Issuing Lender, without recourse or warranty, an undivided interest
and participation, to the extent of such Participant's Proportionate Share in
such Letter of Credit, each drawing made thereunder and the obligations of the
Borrower under this Agreement with respect thereto (other than the Facing Fees,
which shall be for the account of the respective Issuing Lender), and any
security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Loan Commitments or Proportionate Shares of the Lenders pursuant to
Section 1.13 or 12.04, it is hereby agreed that, with respect to all outstanding
Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to
the participations pursuant to this Section 2.03 to reflect the new
Proportionate Shares of the assignor and assignee Lender or of all Lenders with
Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
such Issuing Lender shall have no obligation relative to the other Lenders other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Issuing Lender under or in connection with
any Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct as determined by a court of competent jurisdiction, shall not
create for such Issuing Lender any resulting liability to the Borrower or any
Lender.
(c) In the event that any Issuing Lender makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to such Issuing Lender pursuant to Section 2.04(a), such Issuing
Lender shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant's
Proportionate Share of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York
City time) on any Business Day, any Participant required to fund a payment under
a Letter of Credit, such Participant shall use its best efforts to make
available to such Issuing Lender such Participant's Proportionate Share of the
amount of such payment on such Business Day in Dollars in same day funds or in
any case, no later than 3:00 P.M. New York City time on the next succeeding
Business Day. If and to the extent such Participant shall not have so made its
Proportionate Share of the amount of such payment available to such Issuing
Lender on the date of payment, such Participant agrees to pay to such Issuing
Lender, forthwith on demand such amount, together with interest thereon, for
each day from such date until the date such amount is paid to such Issuing
Lender at the overnight Federal Funds Rate. The failure of any Participant to
make available to such Issuing Lender its Proportionate Share of any payment
under any Letter of Credit shall not relieve any other Participant of its
obligation hereunder to make available to such Issuing Lender its Proportionate
Share of any Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other Participant to
make available to such Issuing Lender such other Participant's Proportionate
Share of any such payment.
(d) Whenever any Issuing Lender receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Lender shall pay to each
Participant which has paid its Proportionate Share thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the payment
pursuant to clause (c) above.
(e) The obligations of the Participants to make payments to
each Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower may have at any time against a beneficiary named in
a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Administrative
Agent, any Participant, or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between the Borrower and the beneficiary named in any such
Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Issuing Lender, by making
payment to the Administrative Agent in immediately available funds in Dollars at
the Payment Office, for any payment or disbursement made by such Issuing Lender
under any Letter of Credit (each such amount, so paid until reimbursed or repaid
with the proceeds of a Revolving Loan in accordance with the terms hereof, an
"Unpaid Drawing"), no later than three Business Days after the date of such
payment or disbursement, with interest on the amount so paid or disbursed by
such Issuing Lender, to the extent not reimbursed prior to 12:00 Noon (New York
City time) on the date of such payment or disbursement, from and including the
date paid or disbursed to but excluding the date such Issuing Lender was
reimbursed by the Borrower therefor at a rate per annum which shall be the Base
Rate in effect from time to time plus the Applicable Margin for Base Rate Loans;
provided, however, to the extent such amounts are not reimbursed prior to 12:00
Noon (New York City time) on the fifth Business Day following the notice of such
payment or disbursement, interest shall thereafter accrue on the amounts so paid
or disbursed by such Issuing Lender (and until reimbursed by the Borrower) at a
rate per annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin for Base Rate Loans plus 2%, in each such case, with interest
to be payable on demand; provided further, however, that even if the conditions
to Borrowing set forth herein are not met, the Borrower may request in
accordance with Section 1.02 that the payments required to be made under this
Section 2.04(a) be made from the proceeds of a Base Rate Loan in an equivalent
amount, and, to the extent so made, the Borrower's obligations to make such
payments shall be discharged. The respective Issuing Lender shall give the
Borrower prompt notice of each Drawing under any Letter of Credit, provided that
the failure to give any such notice shall in no way affect, impair or diminish
the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to
reimburse the respective Issuing Lender with respect to payments on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Lender (including in its capacity as issuer of the Letter
of Credit or as Participant), or any nonapplication or misapplication by the
beneficiary of the proceeds of such Drawing, the respective Issuing Lender's
only obligation to the Borrower being to confirm that any documents required to
be delivered under such Letter of Credit to have been delivered and that they
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Lender under or
in connection with any Letter of Credit if taken or omitted in the absence of
gross negligence or willful misconduct, as determined by a court of competent
jurisdiction, shall not create for such Issuing Lender any resulting liability
to the Borrower.
2.05 Increased Costs. If at any time after the date of this
Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any Governmental Authority (including any central
bank, Superintendent of Financial Institutions or other comparable authority or
agency) charged with the interpretation or administration thereof, or compliance
by any Issuing Lender or any Participant with any request or directive by any
such authority (whether or not having the force of law), or any change in GAAP,
shall either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against letters of credit issued by any Issuing
Lender or participated in by any Participant, or (ii) impose on any Issuing
Lender or any Participant any other conditions relating, directly or indirectly,
to this Agreement or any Letter of Credit, and the result of any of the
foregoing is to increase the cost to any Issuing Lender or any Participant of
issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Lender or any
Participant hereunder or reduce the rate of return on its capital with respect
to Letters of Credit (except for changes in the rate of tax on, or determined by
reference to, the net income or profits of such Issuing Lender or such
Participant, or any franchise tax based on the net income or profits of such
Lender or Participant, in either case pursuant to the laws of the United States
of America, the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), but without duplication of any amounts payable in respect of Taxes
pursuant to Section 4.04(a), then, upon demand to the Borrower by such Issuing
Lender or any Participant (a copy of which demand shall be sent by such Issuing
Lender or such Participant to the Administrative Agent) and subject to the
provisions of Section 12.15 (to the extent applicable), the Borrower shall pay
to such Issuing Lender or such Participant such additional amount or amounts as
will compensate such Lender for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Lender
or any Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.05, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Issuing Lender or such Participant (a copy of which certificate shall be
sent by such Issuing Lender or such Participant to the Administrative Agent),
setting forth in reasonable detail the basis for the calculation of such
additional amount or amounts necessary to compensate such Issuing Lender or such
Participant. The certificate required to be delivered pursuant to this Section
2.05 shall, if delivered in good faith and absent manifest error, be final and
conclusive and binding on the Borrower. Notwithstanding the foregoing, a Lender
shall not exercise any of its rights under this Section 2.05 with respect to the
Borrower if it shall not at the time be the general policy or practice of such
Lender to exercise provisions in other credit agreements similar to this Section
2.05 against other borrowers in substantially similar circumstances.
2.06 Indemnification from Lenders. To the extent the Issuing
Lender is not reimbursed and indemnified by the Borrower, each Participant will
reimburse and indemnify the Issuing Lender in proportion to its respective
Commitment, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever (including all expenses which may be imposed on, incurred by or
asserted against the Issuing Lender in performing its duties hereunder), in any
way relating to or arising out of this Agreement; provided that no Participant
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Issuing Lender's gross negligence or willful misconduct as
determined by a court of competent jurisdiction. The agreements contained in
this Section shall survive any termination of this Agreement and the other
Credit Documents and the payment in full of the Obligations.
Section 3. Fees; Commitment; Reductions of Commitments.
3.01 Fees. (a) The Borrower agrees to pay the Administrative
Agent a commitment commission (the "Commitment Commission") for distribution to
each Non-Defaulting Lender with a Revolving Loan Commitment, for the period from
and including the Effective Date until the Revolving Loan Maturity Date (or such
earlier date as the Total Revolving Loan Commitment shall have been terminated)
computed at a rate equal to 1/2 of 1% per annum on the average Unutilized
Revolving Loan Commitment of such Non-Defaulting Lender. Accrued Commitment
Commission shall be due and payable quarterly in arrears on each Quarterly
Payment Date, and on the Revolving Loan Maturity Date (or upon such earlier date
as the Total Revolving Loan Commitment shall be terminated).
(b) The Borrower agrees to pay the Administrative Agent (i)
for pro rata distribution to each Lender with a Revolving Loan Commitment (based
upon their respective Proportionate Shares) a fee in respect of each Letter of
Credit (the "Letter of Credit Fee") for the period from and including the date
of issuance of such Letter of Credit through the Termination Date of such Letter
of Credit, computed at the rate equal to the Applicable Margin for Revolving
Loans maintained as Eurodollar Loans per annum on the daily Stated Amount of
such Letter of Credit, and (ii) a fee for the account of each Issuing Lender in
respect of each Letter of Credit issued by it (the "Facing Fee"), for the period
from and including the date of issuance of such Letter of Credit through the
Termination Date of such Letter of Credit, computed at the rate equal to (A) in
the case of Standby Letters of Credit, 0.25% per annum on the daily Stated
Amount of such Standby Letters of Credit and (B) in the case of Trade Letters of
Credit, 0.25% per annum on the daily Stated Amount of such Trade Letter of
Credit; provided that in no event shall the annual Facing Fee with respect to
any Letter of Credit be less than $500. Accrued Letter of Credit and Facing Fees
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
on the first date on and after the Revolving Loan Maturity Date on which no
Letters of Credit remain outstanding.
(c) The Borrower shall pay, upon each payment under, issuance
of, or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the administrative charge which the respective Issuing Lender is
generally imposing in connection with such occurrence with respect to letters of
credit.
(d) The Borrower shall pay to the Administrative Agent, for
its own account, such fees as have been mutually agreed upon in writing by the
Administrative Agent and the Borrower.
(e) All computation of Fees shall be made in accordance with
Section 12.07(b).
3.02 Voluntary Reduction of Commitments. Upon at least one
Business Day's prior written notice (or telephonic notice confirmed in writing)
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, without premium or penalty, to permanently reduce
the Total Revolving Loan Commitment in whole or in part, in integral multiples
of $500,000, provided that (x) no such reduction shall exceed the amount of the
Aggregate Unutilized Revolving Loan Commitments as in effect immediately before
giving effect to such reduction and (y) any such reduction shall apply
proportionately to reduce (i) the Revolving Loan Commitment of each Lender that
is not a Defaulting Lender with such a Commitment and (ii) the Revolving Loan
Commitment of each Defaulting Lender as in effect prior to the time such Lender
became a Defaulting Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total
Commitments (and the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment, the Tranche C Term Loan Commitment and the Revolving Loan Commitment
of each Lender) shall terminate in their entirety on December 31, 1999 unless
the Effective Date shall have occurred on or prior to such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche A Term Loan Commitment (and the
Tranche A Term Loan Commitment of each Lender) shall terminate in its entirety
on the Effective Date (after giving effect to the making of the Tranche A Term
Loans on such date).
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche B Term Loan Commitment (and the
Tranche B Term Loan Commitment of each Lender) shall terminate in its entirety
on the Effective Date (after giving effect to the making of the Tranche B Term
Loans on such date).
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche C Term Loan Commitment (and the
Tranche C Term Loan Commitment of each Lender) shall terminate in its entirety
on the Effective Date (after giving effect to the making of the Tranche C Term
Loans on such date).
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Lender) shall terminate in its entirety on the
earlier of (x) the Revolving Loan Maturity Date and (y) unless the Required
Lenders otherwise consent, on the date of any Change of Control.
(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date upon which a mandatory repayment of
Term Loans pursuant to any of Sections 4.02(A)(g) through (k), inclusive, is
required (and exceeds in amount the aggregate principal amount of Term Loans
then outstanding) or would be required if Term Loans were then outstanding, the
Total Revolving Loan Commitment shall be permanently reduced by the amount, if
any, by which the amount required to be applied pursuant to said Sections
(determined as if an unlimited amount of Term Loans were actually outstanding)
exceeds the aggregate principal amount of Term Loans then outstanding.
(g) Each reduction to the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment, the Total Tranche C Term
Loan Commitment and the Total Revolving Loan Commitment pursuant to this Section
3.03 shall be applied proportionately to reduce the Tranche A Term Loan
Commitment, the Tranche B Term Loan Commitment, the Total Tranche C Term Loan
Commitment or the Revolving Loan Commitment, as the case may be, of each Lender
with such a Commitment.
Section 4. Prepayments; Payments.
4.01 Voluntary Prepayments. (a) The Borrower shall have the
right to prepay Loans, without premium or penalty, in whole or in part from time
to time on the following terms and conditions: (i) the Borrower shall give the
Administrative Agent notice, in writing or by telephone, confirmed in writing,
of its intent to make a prepayment (x) prior to 2 P.M. (New York City time) at
its Notice Office at least three Business Days prior to the date of such
prepayment in the case of Eurodollar Loans and (y) prior to ▇▇ ▇▇▇▇ (▇▇▇ ▇▇▇▇
▇▇▇▇ time) at its Notice Office at least one Business Day prior to the date of
such prepayment in the case of Base Rate Loans (or same day notice in the case
of Swingline Loans, provided such notice is given prior to 12:00 Noon (New York
City time), which notice in each case shall indicate whether Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans or Revolving Loans shall be
prepaid, the amount of such prepayment and the Types of Loans to be prepaid and,
in the case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant
to which made, which notice the Administrative Agent shall promptly transmit to
each of the Lenders; and (ii) each partial prepayment of any Borrowing shall be
in an aggregate principal amount of at least the Minimum Borrowing Amount, if
applicable, with respect thereto, provided that no partial prepayment of
Eurodollar Loans shall reduce the outstanding Eurodollar Loans made pursuant to
a Borrowing to an amount less than the Minimum Borrowing Amount with respect
thereto. Each prepayment pursuant to this Section 4.01 in respect of any Loans
made pursuant to a Borrowing shall be applied pro rata among the Lenders making
such Loans, provided that no such prepayment shall be applied to any Loans of a
Defaulting Lender at any time when the Loans of any Non-Defaulting Lender
exceeds such Non-Defaulting Lender's Proportionate Share of all Loans then
outstanding. Prepayments of Eurodollar Loans made pursuant to this Section 4.01
on any day other than the last day of an Interest Period applicable thereto
shall be accompanied by the amounts required under Section 1.11.
(b) Each amount required to be applied to Term Loans pursuant
to this Section 4.01 shall be applied pro rata to each Tranche of Term Loans
based upon the then remaining principal amounts of the respective Tranches (with
each Tranche of Term Loans to be allocated that percentage of the amount to be
applied as is equal to a fraction (expressed as a percentage) the numerator of
which is the then outstanding principal amount of such Tranche of Term Loans and
the denominator of which is equal to the then outstanding principal amount of
all Term Loans). The amount of each principal repayment of Term Loans made
pursuant to this Section 4.01 shall be applied to reduce the then remaining
Scheduled Repayments of the respective Tranche of Term Loans pro rata based upon
the then remaining principal amounts of the Scheduled Repayments of the
respective Tranche of Term Loans after giving effect to all prior reductions
thereto until all Term Loans are repaid in full.
4.02 Mandatory Prepayments.
(A) Requirements. (a) If on any date (and after giving effect
to all other repayments on such date) the sum of the aggregate outstanding
principal amount of Revolving Loans and Swingline Loans, plus the Letter of
Credit Outstandings exceeds the Total Revolving Loan Commitment as then in
effect, the Borrower shall repay on such date the principal of Swingline Loans
and, if no Swingline Loans are or remain outstanding, Revolving Loans of
Non-Defaulting Lenders as is equal to such excess. If, after giving effect to
the prepayment of all outstanding Revolving Loans and Swingline Loans, the
Letter of Credit Outstandings exceed the Total Revolving Loan Commitment as then
in effect, the Borrower shall pay to the Administrative Agent an amount in cash
and/or Cash Equivalents equal to 105% of such excess and the Administrative
Agent shall hold such payment in an account established at BTCo in the name of
the Administrative Agent for the benefit of the Lenders (and not release same,
except as such excess is reduced) as security for the obligations of the
Borrower.
(b) If on any date the sum of the outstanding principal amount
of the Revolving Loans made by a Defaulting Lender exceeds the Revolving Loan
Commitment of such Defaulting Lender as in effect prior to the time such Lender
became a Defaulting Lender and after giving effect to any reduction of the Total
Revolving Loan Commitment pursuant to Section 3.02, the Borrower shall repay the
Revolving Loans of such Defaulting Lender in an amount equal to such excess.
(c) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all then outstanding Loans of each Tranche shall be
repaid in full on the earlier of (x) the respective Maturity Date of such
Tranche (or the Swingline Expiry Date in the case of Swingline Loans) and (y)
unless the Required Lenders otherwise consent, the occurrence of a Change of
Control.
(d) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date set forth below, the Borrower shall be required
to repay that principal amount of Tranche A Term Loans, to the extent then
outstanding, as is set forth opposite such date (each such repayment, as the
same may be reduced as provided in Sections 4.01 and 4.02(B)(b), a "Tranche A
Scheduled Repayment," and each such date, a "Tranche A Scheduled Repayment
Date"):
-------------------------------------------------- ------------------------
Tranche A
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2000 $1.25 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2000 $1.25 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2000 $1.25 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2000 $1.25 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2001 $1.875 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2001 $1.875 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2001 $1.875 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2001 $1.875 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2002 $3.125 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2002 $3.125 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2002 $3.125 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2002 $3.125 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2003 $5.625 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2003 $5.625 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2003 $5.625 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2003 $5.625 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2004 $6.875 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2004 $6.875 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2004 $6.875 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2004 $6.875 million
-------------------------------------------------- ------------------------
(e) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date set forth below, the Borrower shall be required
to repay that principal amount of Tranche B Term Loans, to the extent then
outstanding, as is set forth opposite such date (each such repayment, as the
same may be reduced as provided in Sections 4.01 and 4.02(B)(b), a "Tranche B
Scheduled Repayment," and each such date, a "Tranche B Scheduled Repayment
Date"):
-------------------------------------------------- ------------------------
Tranche B
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2000 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2000 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2000 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2000 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2001 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2001 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2001 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2001 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2002 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2002 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2002 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2002 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2003 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2003 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2003 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2003 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2004 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2004 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2004 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2004 $75,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2005 $7,125,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2005 $7,125,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2005 $7,125,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2005 $7,125,000
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
(f) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date set forth below, the Borrower shall be required
to repay that principal amount of Tranche C Term Loans, to the extent then
outstanding, as is set forth opposite such date (each such repayment, as the
same may be reduced as provided in Sections 4.01 and 4.02(B)(b), a "Tranche C
Scheduled Repayment," and each such date, a "Tranche C Scheduled Repayment
Date"):
-------------------------------------------------- ------------------------
Tranche C
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2000 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2000 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2000 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2000 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2001 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2001 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2001 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2001 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2002 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2002 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2002 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2002 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2003 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2003 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2003 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2003 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2004 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2004 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2004 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2004 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2005 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2005 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2005 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2005 $237,500
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
March 31, 2006 $22.325 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
June 30, 2006 $22.325 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
September 30, 2006 $22.325 million
-------------------------------------------------- ------------------------
-------------------------------------------------- ------------------------
December 15, 2006 $22.325 million
-------------------------------------------------- ------------------------
(g) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date after the Effective Date upon which the Borrower
or any of its Subsidiaries receives proceeds from the disposition of assets, an
amount equal to 100% of the Net Sale Proceeds from such disposition of any
assets (other than (i) such dispositions the Net Sale Proceeds of which are less
than $100,000 per disposition, (ii) dispositions which are not excluded under
clause (i), the Net Sale Proceeds of which not to exceed $5 million in any
fiscal year of the borrower and (iii) dispositions permitted under Section
8.02(ii), (iv), (v) and (viii)) of the Borrower or any of its Subsidiaries shall
be applied contemporaneously with the closing of such disposition to repay the
outstanding Term Loans in accordance with the requirements of Section
4.02(B)(b);
(h) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date after the Effective Date upon which the Borrower
or any of its Subsidiaries receives any proceeds from any sale or issuance of
its equity (other than proceeds received (i) from the exercise of stock options
granted to management, employees or directors as permitted hereunder, so long as
the aggregate amount of cash proceeds pursuant to this clause does not exceed $1
million during any fiscal year of the Borrower, (ii) from the exercise of the
warrants issued pursuant to the Reorganization Plan or in connection with the
Senior Secured Second Lien Notes (the "Warrants") or (iii) from issuances of
equity among the Credit Parties) an amount equal to 100% of the cash proceeds of
the respective sale or issuance (net of underwriting discounts, fees and
commissions and other direct costs and expenses associated therewith, including,
without limitation, legal fees and expenses), shall be applied as a mandatory
repayment of principal of outstanding Term Loans in accordance with the
requirements of Section 4.02(B)(b).
(i) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date after the Effective Date upon which the Borrower
or any of its Subsidiaries receives any proceeds from any incurrence by the
Borrower or any of its Subsidiaries of Indebtedness for borrowed money (other
than Indebtedness permitted under Section 8.04), an amount equal to the cash
proceeds (net of underwriting discounts, fees and commissions and other costs
and expenses associated therewith including, without limitation, legal fees and
expenses) of the respective incurrence of Indebtedness shall be applied as a
mandatory repayment of principal of outstanding Term Loans in accordance with
the requirements of Section 4.02(B)(b).
(j) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 10 days following
each date after the Effective Date on which the Borrower or any of its
Subsidiaries receives any proceeds from any Recovery Event ("Insurance
Proceeds"), an amount equal to 100% of the proceeds of such Recovery Event (net
of (x) reasonable cost of repairs and expenses including, without limitation,
reasonable legal costs and expenses, and taxes incurred in connection with such
Recovery Event and (y) any required repayment of Indebtedness encumbering the
asset which is the subject of such Recovery Event) shall be applied as a
mandatory repayment of principal of outstanding Term Loans in accordance with
the requirements of Sections 4.02(B)(b); provided that so long as no Default or
Event of Default then exists and such proceeds from such Recovery Event do not
exceed $5,000,000, such Insurance Proceeds shall not be required to be so
applied on such date to the extent that the Borrower has delivered a certificate
to the Administrative Agent on or prior to such date stating that such Insurance
Proceeds shall be used to replace or restore any properties or assets in respect
of which such Insurance Proceeds were paid within 180 days following the date of
receipt of such Insurance Proceeds (which certificate shall set forth the
estimates of the Insurance Proceeds so expended). Any such Insurance Proceeds
not so used to replace assets within the 180 day period described above shall be
used to repay Term Loans as required under this Section 4.02(A)(j).
(k) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each Excess Cash Payment Date, an amount equal to 75% (50%
at any time the Leverage Ratio is 3.0:1.0 or lower) of the Excess Cash Flow for
the relevant Excess Cash Payment Period shall be applied as a mandatory
repayment of principal of outstanding Term Loans in accordance with the
requirements of Sections 4.02(B)(b).
(B) Application. (a) With respect to each prepayment of Loans
required pursuant to this Section 4.02, the Borrower may designate the Types of
Loans of the respective Tranche which are to be prepaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings of the respective Tranche
pursuant to which made, provided that: (i) if any prepayment of Eurodollar Loans
made pursuant to a single Borrowing shall reduce the outstanding Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto, such Borrowing shall immediately be converted into Base Rate
Loans; (ii) each prepayment in respect of any Loans made pursuant to a Borrowing
shall be applied pro rata among the Lenders making such Loans; (iii)
notwithstanding the provisions of the preceding clause (ii), no prepayments made
pursuant to the first sentence of Section 4.02(A)(a) shall be applied to the
Revolving Loans of a Defaulting Lender and (iv) prepayments of Eurodollar Loans
made pursuant to this Section 4.02 on any day other than the last day of an
Interest Period applicable thereto (the "Affected Eurodollar Loans") shall be
accompanied by the amounts required under Section 1.11; provided that the
Borrower may, in lieu of making any payment required under Section 1.11 as a
result of prepaying any Eurodollar Loan on a day other than the last day of the
applicable Interest Period under this Section 4.02, initially deposit a portion
(up to 100%) of the amounts that otherwise would have been paid in respect of
the Affected Eurodollar Loans with the Administrative Agent (which deposit must
be equal in amount to the amount of the Affected Eurodollar Loans not
immediately prepaid) to be held as security for the obligations of the Borrower
hereunder pursuant to a cash collateral arrangement satisfactory to the
Administrative Agent, which shall provide for investments satisfactory to the
Administrative Agent, with such cash collateral to be directly applied upon the
first occurrence (or occurrences) thereafter of the last day of the Interest
Period applicable to the Affected Eurodollar Loans (or such earlier date or
dates as shall be requested by the Borrower), to repay an aggregate principal
amount of such Loans equal to the Affected Eurodollar Loans not initially
prepaid pursuant to this sentence. Notwithstanding anything to the contrary
contained in the immediately preceding clause (iv), all amounts deposited as
cash collateral pursuant to the immediately preceding sentence shall be held for
the sole benefit of the Lenders whose Loans would otherwise have been
immediately prepaid with the amounts deposited and upon the taking of any action
by the Administrative Agent or the Lenders pursuant to the remedial provisions
of Section 9, any amounts held as cash collateral pursuant to this Section
4.02(B) shall, subject to the requirements of applicable law, be immediately
applied to repay Loans. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion.
(b) Each amount required to be applied to Term Loans pursuant
to ▇▇▇▇▇▇▇ ▇.▇▇(▇)(▇), (▇), (▇), (▇), (▇), (▇), (▇) and (k) shall be applied pro
rata to each Tranche of Term Loans based upon the then remaining principal
amounts of the respective Tranches (with each Tranche of Term Loans to be
allocated that percentage of the amount to be applied as is equal to a fraction
(expressed as a percentage) the numerator of which is the then outstanding
principal amount of such Tranche of Term Loans and the denominator of which is
equal to the then outstanding principal amount of all Term Loans. The amount of
each principal repayment of Term Loans made as required by Sections 4.02(A)(d),
(e), (f), (g), (h), (i), (j), and (k) shall be applied (i) first to reduce the
then remaining Scheduled Repayments of the respective Tranche of Term Loans pro
rata based upon the then remaining principal amounts of the Scheduled Repayments
of the respective Tranche of Term Loans after giving effect to all prior
reductions thereto until all Term Loans are repaid in full and (ii) second, to
the extent in excess of the amount required to be applied pursuant to the
preceding clause (i), as a mandatory reduction to the Total Revolving Loan
Commitment.
(c) Notwithstanding anything to the contrary contained in this
Section 4.02, with respect to any mandatory repayments of Tranche B Term Loans
or Tranche C Term Loans (excluding Scheduled Repayments and repayments on the
Maturity Dates relating thereto) otherwise required above pursuant to this
Section 4.02, and with respect to that portion of any voluntary repayment of
Term Loans pursuant to Section 4.01 which, in accordance with the provisions of
clause (b) thereof is required to be applied to Tranche B Term Loans or Tranche
C Term Loan, if on or prior to the date the respective mandatory repayment is
otherwise required to be made pursuant to this Section 4.02 or on or prior to
the date of the respective voluntary repayment pursuant to Section 4.01, the
Borrower has given the Administrative Agent written notification that the
Borrower has elected to give each Lender with a Tranche B Term Loan or Tranche C
Term Loan the right to waive such Lender's rights to receive such repayment (the
"Waivable Repayment"), the Administrative Agent shall notify such Lenders of
such receipt and the amount of the repayment to be applied to each such Lender's
Tranche B Term Loans or Tranche C Term Loans. In the event any such Lender with
a Tranche B Term Loans or Tranche C Term Loans desires to waive such Lender's
right to receive any such Waivable Repayment in whole or in part, such Lender
shall so advise the Administrative Agent no later than 5:00 P.M. (New York City
time) three Business Days after the date of such notice from the Administrative
Agent which notice shall also include the amount the Lender desires to receive.
If the Lender does not reply to the Administrative Agent within such three
Business Day period, it will be deemed acceptance of the total payment. If the
Lender does not specify an amount it wishes to receive, it will be deemed
acceptance of 100% of the total payment. In the event that any such Lender
waives such Lender's right to any such Waivable Repayment, the Administrative
Agent shall apply 100% of the amount so waived by such Lenders to prepay the
Tranche A Term Loans in accordance with Sections 4.01 or 4.02, as the case may
be. Notwithstanding anything to the contrary contained above, (i) if one or more
Lenders waives its right to receive all or any part of any Waivable Repayment,
but less than all the Lenders holding Tranche B Term Loans or Tranche C Term
Loans waive in full their right to receive 100% of the total payment otherwise
required with respect to the Tranche B Term Loans or Tranche C Term Loans, then
of the amount actually applied to the repayment of Tranche B Term Loans or
Tranche C Term Loans of Lenders which have waived in part, but not in full,
their right to receive 100% of such repayment, shall be applied to each then
outstanding Borrowing of Tranche B Term Loans or Tranche C Term Loans on a pro
rata basis (so that each Lender holding Tranche B Term Loans or Tranche C Term
Loans shall, after giving effect to the application of the respective repayment,
maintain the same percentage (as determined for such Lender, but not the same
percentage as the other Lenders hold and not the same percentage held by such
Lender prior to repayment) of each Borrowing of Tranche B Term Loans or Tranche
C Term Loans which remains outstanding after giving effect to such application)
and (ii) the Borrower's option pursuant to this Section 4.02(B)(c) with respect
to a voluntary prepayment or mandatory prepayment shall only be applicable so
long as any Tranche A Term Loans are outstanding.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Lender or
Lenders entitled thereto not later than 12:00 Noon (New York City time) on the
date when due and shall be made in Dollars in immediately available funds at the
Payment Office of the Administrative Agent. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Lender, or any
franchise tax based on the net income or net profits of a Lender, in either case
pursuant to the laws of the United States of America or the jurisdiction in
which it is incorporated or organized or the jurisdiction in which the principal
office or applicable lending office of such Lender is located or any subdivision
thereof or therein) and all interest, penalties or similar liabilities with
respect thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). If any
Taxes are so levied or imposed, the Borrower agrees to pay the full amount of
such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence of this Section 4.04(a),
then the Borrower agrees to reimburse each Lender, upon the written request of
such Lender, for taxes imposed on or measured by the net income or net profits
of such Lender, or any franchise tax based on the net income or net profits of
such Lender, in either case pursuant to the laws of the jurisdiction in which
such Lender is organized or in which the principal office or applicable lending
office of such Lender is located or under the laws of any political subdivision
or taxing authority of any such jurisdiction in which the principal office or
applicable lending office of such Lender is located and for any withholding of
income or similar taxes as such Lender shall determine are payable by, or
withheld from, such Lender in respect of such amounts so paid to or on behalf of
such Lender pursuant to the preceding sentence and in respect of any amounts
paid to or on behalf of such Lender pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment of
any Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrower. The Borrower agrees to indemnify and
hold harmless each Lender, and reimburse such Lender upon its written request,
for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) and that makes Loans to the
Borrower agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Effective Date, and each such Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.13 or 12.04
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer) and that is not such a United States person
agrees to deliver to the Borrower and the Administrative Agent on or prior to
the date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying such Lender's entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments
to be made under this Agreement and under any Note, or (ii) if such Lender is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i)
above, (x) a certificate substantially in the form of Exhibit D (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying such Lender's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Lender described
in the preceding sentence agrees that from time to time after the Effective
Date, when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor form),
or Form W-8 (or successor form) and a Section 4.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments by the
Borrower under this Agreement and any Note, or it shall immediately notify the
Borrower and the Administrative Agent of its inability to deliver any such Form
or Certificate. Notwithstanding anything to the contrary contained in Section
4.04(a), but subject to Section 12.04(b) and the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Lender for US federal income tax purposes to the extent that such Lender has not
provided to the Borrower US Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall
not be obligated pursuant to Section 4.04(a) hereof to gross-up payments to be
made to a Lender in respect of income or similar taxes imposed by the United
States if (I) such Lender has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to this Section
4.04(b) or (II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such forms do not establish a
complete exemption from withholding of such taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 12.04(b), the Borrower agrees to pay
additional amounts and to indemnify each Lender in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld by
it as described in the immediately preceding sentence as a result of any changes
that are effective after the Effective Date (or, with respect to any assignee of
any Lender, after the date on which the assignment to such assignee becomes
effective) in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes.
(c) If the Borrower pays any additional amount under this
Section 4.04 to a Lender and such Lender determines in its sole discretion that
it has actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid, such Lender shall pay to
the Borrower an amount that the Lender shall, in its sole discretion, determine
is equal to the net benefit, after tax, which was obtained by the Lender in such
year as a consequence of such refund, reduction or credit. The decision as to
whether a Lender claims any refund or credit or files any amended tax return
shall be in the sole discretion of such Lender. Nothing in this Section 4.04(c)
shall require a Lender to disclose or detail the basis of its calculation of the
amount of any tax benefit or any other amount to the Borrower or to any other
party or to disclose or provide a copy of any tax return.
(d) The provisions of this Section 4.04 are subject to the
provisions of Section 12.15 (to the extent applicable).
Section 5. Conditions Precedent.
5.01 Conditions Precedent to Initial Loans and Letters of
Credit. This Agreement shall become effective on the date (the "Effective Date")
not later than December 31, 1999 on which each of the following conditions is
satisfied:
(a) Execution of Agreement; Notes. (i) The Borrower, the
Administrative Agent and each other institution then a Lender hereunder shall
have signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Administrative Agent at its Notice Office or, in the
case of the Lenders, shall have given to the Administrative Agent telephonic
(confirmed in writing) or written notice (actually received) at such office that
the same has been signed and mailed to it and (ii) there shall have been
delivered to the Administrative Agent for the account of each of the Lenders
requesting same, the appropriate Tranche A Term Note, Tranche B Term Note,
Tranche C Term Note and/or Revolving Note executed by the Borrower and to the
Swingline Lender (if requested by it), the Swingline Note executed by the
Borrower (and/or any other Person required thereunder) in the amount, maturity
and as otherwise provided herein and as reasonably satisfactory to the
Administrative Agent.
(b) Corporate Documents; Proceedings; Officer's Certificates.
(i) The Administrative Agent shall have received from each Credit Party a
certificate, dated the Effective Date, signed by a Responsible Officer,
Secretary or Assistant Secretary of such Credit Party and attested to by the
Secretary or any Assistant Secretary of such Credit Party in the form of Exhibit
E with appropriate insertions, together with copies of the Company Documents of
each Credit Party and the resolutions of each Credit Party referred to in such
certificate, authorizing and approving the Borrowings and all other transactions
contemplated by this Agreement, and the foregoing shall be reasonably
satisfactory in form and substance to the Administrative Agent.
(ii) All Company and legal proceedings and all instruments and
agreements in connection with the transactions contemplated in this Agreement
and the other Credit Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent shall have
received all information and copies of all documents and papers, including
records of Company proceedings, good standing certificates and governmental
approvals, if any, which the Administrative Agent reasonably may have requested
in connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities.
(c) Opinions of Counsel. The Administrative Agent shall have
received an opinion in form and substance reasonably satisfactory, addressed to
each of the Lenders and dated the Effective Date or, as to subclauses (ii), (iv)
and (v) below, such later date as to which the Administrative Agent shall
consent in its sole discretion:
(i) from Kronish ▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to
the Borrower and the Subsidiary Guarantors, covering the matters set forth in
Exhibit F-1 and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request,
(ii) from ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to the Borrower and the
Subsidiary Guarantors, covering the matters set forth in Exhibit F-2 and such
other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request,
(iii) from ▇▇▇▇▇▇ ▇▇▇▇, Esq., General Counsel to the Borrower
and the Subsidiary Guarantors, covering the matters set forth in Exhibit F-3 and
such other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request,
(iv) from flag state counsel to the Borrower and the
Subsidiary Guarantors, covering the matters set forth in Exhibits F-4 through
F-9 and such other matters incident to the transactions contemplated herein as
the Administrative Agent may reasonably request, and
(v) from other local counsel to the Borrower the Subsidiary
Guarantors covering such matters as the Administrative Agent shall reasonably
request.
(d) Order. The Administrative Agent shall have received a copy
of an order entered by the Bankruptcy Court in the form of Exhibit G (the
"Confirmation Order"), which Confirmation Order shall be in full force and
effect and shall not have been stayed, reversed, vacated, rescinded or otherwise
modified without the prior written consent of the Administrative Agent and the
Required Lenders and shall not, except as shall be reasonably acceptable to the
Administrative Agent and the Required Lenders, be subject to any appeal which
the Administrative Agent reasonably determines may be material and adverse to
the Borrower and its Subsidiaries or the Administrative Agent and the Lenders.
(e) Payment of Fees, etc. The Borrower shall have paid all
costs, fees and expenses owing under or in connection with the Credit Documents
and the Fee Letter and due to the Administrative Agent or the Lenders on or
before the Effective Date to the extent due and notified to the Borrower
(including, without limitation, reasonable fees and expenses of counsel).
(f) Adverse Change. From December 9, 1999, nothing shall have
occurred (and the Administrative Agent shall have become aware of no facts or
conditions not previously known) which the Borrower, the Required Lenders or the
Administrative Agent shall reasonably determine has, or could reasonably be
expected to have, a Material Adverse Effect.
(g) Litigation. No litigation by any entity (private or
governmental) shall be pending or threatened (i) which could adversely affect
this Agreement or any other Credit Document or (ii) which the Borrower, the
Administrative Agent or the Required Lenders shall reasonably determine is
reasonably expected to have a Material Adverse Effect.
(h) Approvals. All necessary governmental and third party
approvals in connection with the transactions contemplated by the Credit
Documents and otherwise referred to herein shall have been obtained and remain
in effect, and all applicable waiting periods shall have expired without any
action being taken by any competent authority which restrains, prevents or
imposes, in the reasonable judgment of the Borrower, the Required Lenders or the
Administrative Agent, materially adverse conditions upon the consummation of
such transactions. Additionally, there shall not exist any judgment, order,
injunction or other restraint prohibiting or imposing material adverse
conditions upon the consummation of the transactions contemplated by the Credit
Documents.
(i) Security Agreement. Each Credit Party shall have duly
authorized, executed and delivered, the Security Agreement in the form of
Exhibit H hereto (as amended, restated, supplemented or modified from time to
time, the "Security Agreement"), which shall be in full force and effect
covering all of such Credit Party's present and future Collateral, described
therein, in each case together with:
(a) proper Financing Statements (Form UCC-1) fully executed
for filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported
to be created by the Security Agreement;
(b) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all effective financing
statements that name any Credit Party as debtor and that are filed in
the jurisdictions referred to in clause (a) above, together with copies
of such other financing statements (none of which shall cover the
Collateral except to the extent evidencing Permitted Liens or in
respect of which the Collateral Agent shall have received termination
statements (Form UCC-3) or such other termination statements as shall
be required by local law) fully executed for filing;
(c) evidence of execution for post-closing filing and
recordation of all other recordings and filings of, or with respect to,
the Security Agreement as may be necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created by such Security Agreement; and
(d) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreement have been taken (it being understood and agreed that UCC
financing statements and termination statements shall be filed in the
appropriate governmental office within three Business Days after the
Effective Date).
(j) Subsidiary Guaranty. Each Subsidiary Guarantor shall have
duly authorized, executed and delivered the Subsidiary Guaranty in the form of
Exhibit I hereto (as amended, restated, supplemented or modified from time to
time, the "Subsidiary Guaranty") and the Subsidiary Guaranty shall be in full
force and effect.
(k) Pledge Agreement. Each Credit Party shall have duly
authorized, executed and delivered the Pledge Agreement in the form of Exhibit J
hereto (as amended, restated, supplemented or modified from time to time, the
"Pledge Agreement"), which shall be in full force and effect, and shall have
delivered the collateral subject thereto to the Administrative Agent, as
Pledgee, (x) endorsed in blank in the case of promissory notes and (y) together
with executed and undated stock powers, in the case of capital stock.
(l) Mortgages; Evidence of Lien; Vessel Appraisal. (i) On the
Effective Date, (x) the Borrower and each of its Subsidiaries which own any
Vessel listed on Schedule III and described as a "Mortgaged Vessel" thereon
shall have duly authorized, executed and delivered a mortgage (as modified,
amended or supplemented from time to time in accordance with the terms thereof
and hereof, the "Vessel Mortgages"), substantially in the form of Exhibit K-1
through K-5, as applicable, with respect to each of such Vessels (each, a
"Mortgaged Vessel") and (y) the Vessel Mortgages shall be effective to create in
favor of the Collateral Agent, for the benefit of the Lenders and the Agents, a
legal, valid and enforceable first priority security interest in and lien upon
such Vessels, including, without limitation, a first preferred mortgage (or
second preferred mortgage, in the case of Vessels encumbered by Permitted
Existing Liens permitted to be senior to the Liens under the Vessel Mortgages
under the terms thereof (the "Second Preferred Mortgages")) on each of the
Mortgaged Vessels. All filings, deliveries of instruments and other actions
necessary or desirable in the reasonable opinion of the Collateral Agent to
protect and preserve such security interests shall have been duly effected. The
Collateral Agent shall have received evidence thereof in form and substance
reasonably satisfactory to the Collateral Agent.
(ii) On the Effective Date, the Administrative Agent shall
have received (x) certificates of ownership showing (or confirmation updating
previously reviewed certificates and indicating) the registered ownership of
each Mortgaged Vessel and (y) the results of maritime registry searches with
respect to the Mortgaged Vessels, indicating no other liens other than Permitted
Liens and otherwise in form and substance reasonably satisfactory to the
Collateral Agent.
(iii) On the Effective Date, the Administrative Agent shall
have received appraisal reports in form and substance and from independent
appraisers satisfactory to the Administration Agent and the Required Lenders,
stating the then current fair market value of each of the Mortgaged Vessels, all
such appraisals to be conducted and made at the expense of the Borrower.
(m) Insurance Report. On or prior to the Effective Date, the
Administrative Agent shall have received a detailed report from a firm of
independent marine insurance brokers reasonably acceptable to the Administrative
Agent and the Required Lenders with respect to the insurance maintained by the
Credit Parties in connection with the Mortgaged Vessels, together with a
certificate from such broker certifying that such insurances (i) are placed with
such insurance companies and/or underwriters and/or clubs, in such amounts,
against such risks, and in such form, as are normally insured against by
similarly situated insureds and as are necessary or advisable for the protection
of the Administrative Agent as mortgagee and (ii) conform with the requirements
of the Vessel Mortgages.
(n) Collateral Assignments of Insurances. On the Effective
Date, each Credit Party shall have executed and delivered a collateral
assignment of insurance substantially in the form set forth as Exhibit L (as
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof, the "Insurance Assignment") with respect to the insurance
maintained by such Credit Party on the Mortgaged Vessels.
(o) Consummation of the Reorganization Plan. On the Effective
Date, the Reorganization Plan shall have been (or shall simultaneously be)
consummated (except to the extent distributions are to be made after the Plan
Effective Date) and become effective in accordance with its terms and applicable
law, the Plan Effective Date shall have occurred thereunder and all conditions
to such consummation shall have been satisfied or waived (with the consent of
the Administrative Agent). All settlements of litigation against, or releases of
material claims or liabilities asserted against, the Borrower or any of its
Subsidiaries (or any of their predecessors in interest) shall be in full force
and effect, shall be enforceable against the other parties thereto and shall be
irrevocable on such date.
(p) Existing Obligations and Liens. (i) Simultaneously with
the Effective Date, the commitments under the DIP Facility shall have been
terminated, and all loans thereunder, together with interest thereon, and all
other amounts owing pursuant to the DIP Facility, shall have been repaid in full
and any priority status, security interest or Liens relating thereto shall have
been released or terminated and be of no further force and effect. On the
Effective Date, either (x) all Existing Letters of Credit shall have been
terminated or returned to the issuer thereof undrawn and cancelled or (y) the
Borrower's obligations with respect to any Existing Letters of Credit which are
not terminated or returned shall be cash collateralized, and the Borrower's
obligations with respect thereto released, on terms and conditions reasonably
satisfactory to the Administrative Agent. The Administrative Agent and the
Lenders shall have received evidence in form, scope and substance reasonably
satisfactory to the Administrative Agent that the matters set forth in this
Section 5.01(p)(i) have been satisfied at such time.
(ii) On the Effective Date, all Existing Indebtedness of the
Borrower and its Subsidiaries, and all Liens securing Existing Indebtedness,
shall be evidenced by the Existing Indebtedness Agreements relating thereto and
to the extent requested, delivered to the Administrative Agent pursuant to
Section 5.01(q), and neither the Borrower nor any of its Subsidiaries shall be
obligated with respect to any other Indebtedness, nor shall the Borrower or its
Subsidiaries, or any of their respective assets or properties, be subject to
Liens (other than Permitted Liens).
(iii) On the Effective Date, all Indebtedness (other than
Existing Indebtedness) of the Released Creditors shall have been cancelled,
repaid or converted into equity and all security interests and Liens held by or
on behalf of such Released Creditors (other than to the extent securing Existing
Indebtedness) on the assets owned by the Borrower or its Subsidiaries shall have
been terminated and released, and any collateral in possession of any Released
Creditor shall have been returned to the Borrower. The Administrative Agent
shall have received evidence in form, scope and substance reasonably
satisfactory to the Administrative Agent that the matters set forth in this
Section 5.01(p)(iii) have been satisfied at such time, which may include (i)
termination statements (Form UCC-3 or the appropriate equivalent) for filing
under the UCC of each jurisdiction where a financing statement (Form UCC-1 or
the appropriate equivalent) was filed with respect to the Borrower, its
Subsidiaries and their predecessors in interest in connection with the security
interests created with respect to such Released Creditors which voted in favor
of the Reorganization Plan and the documentation related thereto and (ii) a
termination or assignment of any security interest in, or Lien on, any patents,
trademarks, copyrights, or similar interests of the Borrower, its Subsidiaries
and their predecessors in interest on which filings have been made with respect
to such Released Creditors which voted in favor of the Reorganization Plan.
(q) Material Agreements. On or prior to the Effective Date,
there shall have been made available to the Administrative Agent to the extent
requested (which copies shall be made available to the Lenders upon request)
copies, certified as true and correct by a Responsible Officer of the Borrower,
of all agreements evidencing or relating to the Existing Indebtedness
(collectively, the "Existing Indebtedness Agreements"), and any other material
agreements of the Borrower and its Subsidiaries, all of which shall be in form
and substance reasonably satisfactory to the Administrative Agent.
(r) Financial Statements. On the Effective Date, the
Administrative Agent shall have received the financial statements described in
Section 6.05 and 7.01(a) which statements shall be in form and substance, and
the results of which shall be, reasonably satisfactory to the Administrative
Agent.
(s) Solvency Certificate. On or before the Effective Date, the
Borrower shall cause to be delivered to the Administrative Agent a solvency
certificate from the Chief Financial Officer of the Borrower substantially in
the form of Exhibit M hereto, setting forth the conclusion that, after the
incurrence of all the financings contemplated herein (including without
limitation the issuance by the Borrower of the Senior Secured Second Lien
Notes), the Borrower and the Borrower and its Subsidiaries taken as a whole,
will not be insolvent and will not be rendered insolvent by the indebtedness
incurred in connection therewith, and will not be left with unreasonably small
capital with which to engage in their businesses and will not have incurred
debts beyond their ability to pay debts as they mature.
(t) Senior Secured Second Lien Notes. (i) On or prior to the
Effective Date, the Borrower shall have received gross cash proceeds of at least
$85.5 million from the issuance of the $95 million principal amount of Senior
Secured Second Lien Notes; and
(ii) On or prior to the Effective Date, there shall have been
delivered to the Administrative Agent true and correct copies of the Senior
Secured Second Lien Documents, and all of the terms and conditions of the Senior
Secured Second Lien Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent and the Required Lenders.
5.02 Conditions to All Credit Events. The obligation of each
Lender to make any Loan (other than a Revolving Loan incurred to repay Unpaid
Drawings pursuant to Section 2.04(a)) and of each Issuing Lender to issue any
Letter of Credit, as the case may be, including in each case on the Effective
Date, is subject, at the time of each such Credit Event, to the satisfaction of
the following conditions:
(a) No Default. There shall exist no Default or Event of
Default.
(b) Representations and Warranties. All representations and
warranties herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Credit Event unless such
representation and warranty expressly indicates that it is being made as of any
other specific date (in which case such representation and warranty shall have
been true and correct in all material respects on such specific date).
(c) Effective Date. The Effective Date shall have occurred.
(d) Notice of Borrowing; Letter of Credit Request. In the case
of a Borrowing (excluding Swingline Loans) the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.02(a). In
the case of a Borrowing of Swingline Loans, the Swingline Lender shall have
received the notice described in Section 1.02(b). In the case of the issuance of
a Letter of Credit, the respective Issuing Lender shall have received a Letter
of Credit Request meeting the requirements of Section 2.02.
(e) Payment of all fees, costs, expenses. All fees, costs,
expenses and other amounts then due and payable and notified to the Borrower
shall have been paid.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to each of the Lenders that all the
applicable conditions specified in this Section 5 have been satisfied as of that
time (other than conditions as to whether the Administrative Agent or any Lender
is satisfied as to any matter). All of the Notes, certificates, legal opinions
and other documents and papers referred to in this Section 5, unless otherwise
specified, shall be delivered to the Administrative Agent at its Notice Office
for the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be reasonably
satisfactory in form and substance to the Administrative Agent.
Section 6. Representations, Warranties and Agreements. In
order to induce the Lenders to enter into this Agreement and to make the Loans,
and issue (or participate in) the Letters of Credit as provided herein, the
Borrower makes the following representations, warranties and agreements as of
the Effective Date (both before and after giving effect to any Credit Event
occurring on such date), all of which shall survive the execution and delivery
of this Agreement and the Notes and the making of the Loans and issuance of the
Letters of Credit, with the occurrence of each Credit Event (other than the
incurrence of a Revolving Loan used to repay Unpaid Drawings pursuant to Section
2.04(a)) on or after the Effective Date being deemed to constitute a
representation and warranty that the matters specified in this Section 6 are
true and correct in all material respects on and as of the Effective Date and on
the date of each such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
6.01 Company Status. Each Credit Party (i) is a duly organized
and validly existing Company in good standing under the laws of the jurisdiction
of its incorporation or formation, (ii) has the Company power and authority to
own its property and assets and to transact the business in which it is engaged
and presently proposes to engage and (iii) is duly qualified and is authorized
to do business and is in good standing in each jurisdiction where the conduct of
its business requires such qualifications except where the failure to be so
qualified is not reasonably expected to have a Material Adverse Effect (it being
understood that the Borrower will not be qualified to do business in Florida
prior to the 20th day following the Effective Date).
6.02 Company Power and Authority. Each Credit Party has the
Company power and authority to execute, deliver and perform the terms and
provisions of each of the Credit Documents to which it is party and has taken
all necessary Company action to authorize the execution, delivery and
performance by it of each of such Credit Documents. Each Credit Party has duly
executed and delivered each of the Credit Documents to which it is party, and
each of such Credit Documents will be the legal, valid and binding obligation of
such Credit Party enforceable in accordance with its terms.
6.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any applicable law, statute, rule or regulation or any
applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien (except pursuant to the Security Documents) upon any of the material
properties or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of, any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other material agreement, contract or instrument, to which the
Borrower or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be subject, or (iii) will violate
any provision of the Certificate of Incorporation or other Company documents of
the Borrower or any of its Subsidiaries.
6.04 Governmental Approvals. Except for filings and recordings
in connection with the Security Agreement and the Pledge Agreement (which
filings shall be made on or before the third day (or the tenth day in the case
of UCC filings) following the Effective Date) and except as have been obtained
and are in effect, no order, consent, approval, license, authorization or
validation of, or filing, recording or registration with or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i) the consummation
and performance by any Credit Party of the Reorganization Plan or any Credit
Document or (ii) the legality, validity, binding effect or enforceability of the
Reorganization Plan or any Credit Document.
6.05 Financial Statement; Financial Condition; Undisclosed
Liabilities; etc. (a) The consolidated statements of financial condition of the
Borrower and its Subsidiaries for the fiscal year and fiscal quarter ended on
December 31, 1998 and September 30, 1999, respectively and the related
consolidated statements of income and cash flow and changes in shareholders'
equity of the Borrower and its Subsidiaries for the fiscal year or fiscal
quarter, as the case may be, ended on such dates, copies of which have been
furnished to the Lenders prior to the Effective Date, present fairly in all
material respects the financial condition of the Borrower and its Subsidiaries
at the date of such statements of financial condition and the results of the
operations of the Borrower and its Subsidiaries for the periods covered thereby,
subject to year-end adjustments in the case of the nine month statements. All
such financial statements have been prepared in accordance with GAAP and
practices consistently applied except for the omission of footnotes, and certain
reclassifications and interim period adjustments and accruals (all of which are
of a recurring nature and none of which individually, or in the aggregate, would
be material).
(b) Since December 9, 1999 no event or circumstance has
occurred which has had, or could reasonably be expected to have, a Material
Adverse Effect.
(c) On and as of the Effective Date, the Projections have been
prepared on a basis consistent with the financial statements referred to in
Section 7.01(a), and are based on good faith estimates and assumptions believed
by the management of the Borrower to be reasonable as of the date of such
Projections, and there are no statements or conclusions in any of the
Projections which are based upon or include information known to the Borrower or
any of its Subsidiaries to be misleading in any material respect or which fail
to take into account material information regarding the matters reported therein
necessary to make such information (taken as a whole) not misleading in any
material respect, in each case as of the Effective Date. On the Effective Date,
subject to the proviso to Section 6.07 the Borrower believes that the
Projections were reasonable.
6.06 Litigation. Except as set forth in the Disclosure
Statement or in the Quarterly Report on Form 10Q for the quarter ended September
30, 1999 filed with the Securities and Exchange Commission by Hvide Marine
Incorporated, a Florida corporation and predecessor in interest to the Borrower,
there are no actions, suits or proceedings pending or, to the best knowledge of
the Borrowers, threatened that are reasonably expected to have a Material
Adverse Effect.
6.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender (including, without limitation, all
information contained in the Disclosure Statement and the Credit Documents) for
purposes of or in connection with this Agreement, the other Credit Documents or
any transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the
Borrower in writing to the Administrative Agent or any Lender will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material respect
at such time in light of the circumstances under which such information was
provided; provided that with respect to the Projections and pro forma financial
information contained in the materials referenced above, the Borrower represents
only that such Projections and pro forma financial information are based upon
good faith estimates and assumptions believed by management of the Borrower to
be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount.
6.08 Use of Proceeds; Margin Regulations. (a) All proceeds of
Loans shall be used (i) for working capital, capital expenditures and general
corporate purposes and payment of professional fees and expenses of the Borrower
and the other Credit Parties and (ii) to refinance and repay the DIP Facility;
provided that no Revolving Loans may be used on the Effective Date to make
payments in connection with the consummation of the Reorganization Plan.
(b) No part of the proceeds of any Loan will be used by the
Borrower to purchase or carry any Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock. Neither the making of
any Loan nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
6.09 Tax Returns and Payments. The Borrower and each of its
Subsidiaries has filed or caused to be filed, with the appropriate taxing
authority, all federal, state, provincial and other material returns,
statements, forms and reports for taxes (the "Returns") required to be filed by
or with respect to the income, properties or operations of the Borrower and/or
its Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of the Borrower and its Subsidiaries for the periods covered
thereby. The Borrower and its Subsidiaries have paid all material taxes payable
by them other than (x) taxes which are not delinquent, and other than those
contested in good faith and adequately disclosed and for which adequate reserves
have been established, (y) the amount of such taxes provided by the
Reorganization Plan or (z) those that have been discharged pursuant to the
Reorganization Plan. Neither the Borrower nor any of its Subsidiaries has
received written notice of any material action, suit, proceeding, investigation,
audit, or claim now pending or, to the best knowledge of the Borrower,
threatened by any authority regarding any taxes relating to the Borrower or any
of its Subsidiaries. As of the Effective Date, neither the Borrower nor any of
its Subsidiaries has entered into an agreement or waiver or been requested to
enter into an agreement or waiver extending any statute of limitations relating
to the payment or collection of taxes of the Borrower or any of its
Subsidiaries, or is aware of any circumstances that would cause the taxable
years or other taxable periods of the Borrower or its Subsidiaries not to be
subject to the normally applicable statute of limitations.
6.10 Compliance with ERISA. To the actual knowledge of each
Responsible Officer of the Borrower who executes any Credit Document on behalf
of any Credit Party and without independent investigation: (i) each Plan (and
each related trust, insurance contract or fund) is in compliance in all material
respects with its terms and with all applicable laws, including without
limitation ERISA and the Code; each Plan (and each related trust, if any) which
is intended to be qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sections 401(a) and 501(a) of the Code; no Reportable
Event has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
Current Liability in excess of $1.5 million; no Plan which is subject to Section
412 of the Code or Section 302 of ERISA has an accumulated funding deficiency,
within the meaning of such sections of the Code or ERISA, or has applied for or
received a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; all contributions required to be made with respect to a
Plan have been or will be timely made; neither the Borrower nor any Subsidiary
of the Borrower nor any ERISA Affiliate has incurred any liability (including
any indirect, contingent or secondary liability) pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such
liability under any of the foregoing sections; no condition exists which
presents a risk to the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate of incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code; no proceedings have been instituted
to terminate or appoint a trustee to administer any Plan which is subject to
Title IV of ERISA; no action, suit, proceeding, hearing, audit or investigation
with respect to the administration, operation or the investment of assets of any
Plan (other than routine claims for benefits) is pending, expected or
threatened; using actuarial assumptions and computation methods consistent with
Part 1 of Subtitle E of Title IV of ERISA, the aggregate liabilities of the
Borrower and its Subsidiaries and their ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of the most recent Credit Event, would
not exceed $200,000; each group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees
or former employees of the Borrower, any Subsidiary of the Borrower, or any
ERISA Affiliate has at all times been operated in compliance with the provisions
of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no
lien imposed under the Code or ERISA on the assets of the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate exists or is likely to arise
on account of any Plan; and the Borrower and its Subsidiaries do not maintain or
contribute to any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) which provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any Plan,
(ii) each Foreign Pension Plan has been maintained in
compliance in all material respects with its terms and with the requirements of
any and all applicable laws, statutes, rules, regulations and orders and has
been maintained, where required, in good standing with applicable regulatory
authorities; all contributions required to be made with respect to a Foreign
Pension Plan have been timely made; neither the Borrower nor any of its
Subsidiaries has incurred any obligation in connection with the termination of
or withdrawal from any Foreign Pension Plan; the present value of the accrued
benefit liabilities (whether or not vested) under each Foreign Pension Plan,
determined as of the end of the Borrower's most recently ended fiscal year on
the basis of actuarial assumptions, each of which is reasonable, did not exceed
the current value of the assets of such Foreign Pension Plan allocable to such
benefit liabilities, and
(iii) notwithstanding anything to the contrary in this Section
6.10, the representations made in this Section 6.10 shall only be untrue if the
aggregate effect of all failures and non-compliances of the types described
above could reasonably be expected to, either individually or in the aggregate,
have a Material Adverse Effect.
6.11 Ownership; Subsidiaries. On the Effective Date, the
Borrower has no direct or indirect Subsidiaries other than the Subsidiaries
listed on Schedule II.
6.12 Compliance with Statutes, etc. The Borrower and each of
its Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its businesses and the
ownership of its property, except such noncompliances as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.13 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company controlled by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
6.14 Environmental Matters. (a) To the actual knowledge of
each Responsible Officer of the Borrower who executes any Credit Document on
behalf of any Credit Party and without independent investigation: (i) the
Borrower and each of its Subsidiaries have complied with, and on the date of
each Credit Event will be in compliance with, all applicable Environmental Laws
and the requirements of any permits issued under such Environmental Laws, (ii)
there are no pending or threatened Environmental Claims against the Borrower or
any of its Subsidiaries or any Real Property owned or operated by the Borrower
or any of its Subsidiaries, (iii) there are no facts, circumstances, conditions
or occurrences with respect to the business or operations of the Borrower or any
Real Property at any time owned or operated by the Borrower or any of its
Subsidiaries or any property adjoining or in the vicinity of any such Real
Property that could reasonably be expected to form the basis of an Environmental
Claim against the Borrower or any of its Subsidiaries or any such Real Property,
or to cause any such currently owned Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real
Property by the Borrower or any of its Subsidiaries under any applicable
Environmental Law.
(b) To the actual knowledge of each Responsible Officer of the
Borrower who executes any Credit Document on behalf of any Credit Party and
without independent investigation: (i) Hazardous Materials have not at any time
been generated, used, treated or stored on, or transported to or from, any Real
Property owned or operated by the Borrower or any of its Subsidiaries where such
generation, use, treatment or storage has violated or could reasonably be
expected to violate any Environmental Law in such a manner so as to cause this
representation to be untrue; or (ii) Hazardous Materials have not at any time
been Released on or from any Real Property owned or operated by the Borrower or
any of its Subsidiaries where such Release has violated or could reasonably be
expected to violate any applicable Environmental Law in such a manner so as to
cause this representation to be untrue.
(c) Notwithstanding anything to the contrary in this Section
6.14, the representations and warranties made in this Section 6.14 shall not be
untrue unless the effect of any or all violations, claims, restrictions,
failures and noncompliances of the types described above in this Section 6.14
could reasonably be expected to, either individually or in the aggregate, have a
Material Adverse Effect.
6.15 Labor Relations. To the actual knowledge of each
Responsible Officer of the Borrower who executes any Credit Document on behalf
of any Credit Party and without independent investigation: (a) neither the
Borrower nor any of its Subsidiaries is engaged in any unfair labor practice
that could reasonably be expected to have a Material Adverse Effect; and (b)
there is (i) no unfair labor practice complaint pending against the Borrower or
any of its Subsidiaries or threatened against any of them, before the National
Labor Relations Board, and no material grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or any of its Subsidiaries or threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against the
Borrower or any of its Subsidiaries or threatened against the Borrower or any of
its Subsidiaries and (iii) no union representation proceeding pending with
respect to the employees of the Borrower or any of its Subsidiaries, except
(with respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate) such as has had, or could not reasonably be
expected to have a Material Adverse Effect.
6.16 Patents, Licenses, Franchises and Formulas. The Borrower
and each of its Subsidiaries owns or is licensed to use all material patents,
trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, or rights with respect to the foregoing, and has
obtained assignments of all material leases and other rights of whatever nature,
reasonably necessary for the present conduct of its business, without any known
conflict with the rights of others which, or the failure to obtain or so own
which, as the case may be, has had, or could reasonably be expected to have, a
Material Adverse Effect.
6.17 Year 2000 Representation. The Borrower (i) has undertaken
a review of the areas within its respective businesses and operations and those
of its subsidiaries that could be adversely affected by the Year 2000 Problem,
(ii) has developed a plan to address the Year 2000 Problem and (iii) is taking
actions necessary to meet the schedule and the goals of its plan to address the
Year 2000 Problem and such actions have not had, or could not reasonably be
expected to have, a Material Adverse Effect.
6.18 Security Interests. On and after the Effective Date, each
of the Security Documents creates (or after the execution and delivery thereof,
will create), as security for the Obligations purported to be secured thereby, a
valid and enforceable security interest in and Lien on all of the Collateral
subject thereto, which shall be perfected upon the taking of possession thereof
or completion of filings with respect thereto, in each case as required by this
Agreement or the other Credit Documents, superior to and prior to the rights of
all third Persons and subject to no other Liens (except for Permitted Liens and
to the extent expressly set forth in the Security Documents). No filings or
recordings are required in order to perfect the security interests created under
any Security Document except for filings or recordings required in connection
with any such Security Document which shall have been made upon or prior to the
execution and delivery thereof (or, with respect to any such security interest
the perfection of which is obtained by the filing of UCC Financing Statements or
by appropriate filings in the United States Patent or Trademark Office or in the
United States Copyright Office, not later than 10 days after the Effective
Date).
6.19 Indebtedness. Schedule IV sets forth a true and complete
list of all (i) Indebtedness for borrowed money of the Borrower and each of its
Subsidiaries outstanding as of the Effective Date and which is to remain
outstanding after the Effective Date and (ii) agreements existing on the
Effective Date and which are to remain outstanding after the Effective Date
pursuant to which the Borrower or any of its Subsidiaries are entitled to incur
Indebtedness (collectively, the "Existing Indebtedness"), in each case showing
the aggregate principal amount thereof and the name of the Borrower and any
other entity which directly or indirectly guaranteed such debt.
6.20 Capitalization. On and as of the Effective Date, the
authorized capital stock of the Borrower shall consist of 20,000,000 of common
stock, 10,000,000 shares of which shall be issued and outstanding and 5,000,000
shares of preferred stock, none of which shall be issued or outstanding. All
such outstanding shares of common stock shall be duly and validly issued, are
fully paid and non-assessable and shall have been issued free from preemptive
rights. On and as of the Effective Date, the Borrower will not have outstanding
any securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options or
warrants for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock (other than stock options granted to
management, employees or directors as permitted hereunder and the Warrants).
6.21 Concerning the Vessels. The name, official number,
registered owner, and jurisdiction of registration of each Vessel is set forth
on Schedule III hereto. Except as set forth on Schedule III, each Vessel is
operated in material compliance with all applicable maritime rules and
regulations, including, without limitation, with respect to each Vessel operated
in the coastwise trade of the United States of America, the Shipping Act of
1916, as amended and in effect, and the regulations promulgated thereunder. Each
Vessel is maintained and operated in material compliance with all applicable
Environmental Laws.
6.22 Citizenship. The Borrower and each Subsidiary which owns
or operates one or more Vessels is qualified to own and operate such Vessels
under the laws of the Republic of Cyprus, the Republic of the ▇▇▇▇▇▇▇▇ Islands,
the Republic of Panama, St. ▇▇▇▇▇▇▇ and the Grenadines, or the United States of
America, as may be applicable.
6.23 Vessel Classification. Except as permitted by the laws of
the flag state, each Vessel is classified in the highest class available for
vessels of its age and type with the American Bureau of Shipping, Inc. or
another internationally recognized classification society acceptable to the
Collateral Agent, free of any conditions or recommendations, other than (i) with
respect to any Mortgaged Vessel, as permitted under the Vessel Mortgage related
thereto, and (ii) with respect to any other Vessels, such conditions or
recommendations which if not cured by the owner thereof would not materially
diminish such Vessel's value. With respect to Vessels not required by the laws
of the flag state to be classed, such Vessels are covered by valid certificates
of inspection or the equivalent.
6.24 Material Agreements. On the Effective Date, neither the
Borrower nor any of the Subsidiary Guarantors is party to any material,
Employment Agreement, Management Agreement, Shareholder Agreement or Tax Sharing
Agreement.
6.25 Concentration Account. From and after 60 days after the
Effective Date, the Borrower shall have (x) established its main operating
concentration account at BTCo (the "Concentration Account") and (y) established
a cash management system providing for amounts in excess of normal operating
balances to be delivered to the Concentration Account in a manner satisfactory
to the Administrative Agent.
Section 7. Affirmative Covenants. The Borrower covenants and
agrees that on and after the Effective Date and until the Total Commitment has
terminated and all Letters of Credit have expired or have been terminated or
canceled, and the Loans, all Unpaid Drawings and the Notes, together with
interest, Fees and all other Obligations incurred hereunder and thereunder, are
paid in full:
7.01 Information Covenants. The Borrower will furnish to the
Administrative Agent, in form and substance reasonably satisfactory to the
Administrative Agent with copies to be provided for the Lenders:
(a) Reports, Financial Statements. (i) as soon as available,
but in any event not later than 30 days (45 days for the monthly accounting
period ending January 31, 2000) after the end of each monthly accounting period
of each fiscal year of the Borrower, a copy of the unaudited consolidated
balance sheet of the Borrower and its Subsidiaries (which shall exclude the
financial information for the Lightship Tanker Entities) and the Borrower and
its Consolidated Subsidiaries as at the end of such monthly accounting period,
together with the related unaudited consolidated statements of earnings, cash
flow and shareholders' equity of the Borrower and its Subsidiaries and the
Borrower and its Consolidated Subsidiaries for such monthly accounting period
and the portion of the fiscal year through the end of such monthly accounting
period, setting forth in each case in comparative form the figures for the
previous fiscal year and the budgeted figures for such monthly accounting period
(or prior to the delivery of the first budget under Section 7.01(a)(v), the
figures set forth in the Projections) and the portion of the fiscal year to the
end of such monthly accounting period;
(ii) as soon as available, but in any event not later than 60
days after the end of each quarterly accounting period (which is not a fiscal
year end), a copy of the unaudited consolidated balance sheet of the Borrower
and its Subsidiaries and the Borrower and its Consolidated Subsidiaries as at
the end of such quarterly accounting period, together with the related unaudited
consolidated statements of earnings, cash flow and shareholders' equity of the
Borrower and its Subsidiaries and the Borrower and its Consolidated Subsidiaries
for such quarterly accounting period and the portion of the fiscal year through
the end of such quarterly accounting period, setting forth in each case in
comparative form the figures for the previous fiscal year and the budgeted
figures for such quarterly accounting period and the portion of the fiscal year
to the end of such quarterly accounting period;
(iii) as soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower and its Subsidiaries and the
Borrower and its Consolidated Subsidiaries, a copy of the audited consolidated
balance sheet of the Borrower and its Subsidiaries and Borrower and its
Consolidated Subsidiaries as at the end of such fiscal year, together with the
related audited consolidated statements of earnings, cash flow and shareholders'
equity of the Borrower and its Subsidiaries and the Borrower and its
Consolidated Subsidiaries for such fiscal year and reported on by any
independent internationally recognized firm of chartered accountants or
certified public accountants, together with an officer's certificate setting
forth in each case in comparative form the figures for the previous fiscal year
budgeted figures for such fiscal year;
(iv) on the last Business Day of the second fiscal quarter of
each year and upon the request of the Administrative Agent, appraisal reports in
form and substance and from independent appraisers reasonably satisfactory to
the Agents, stating the then current fair market value of each of the Mortgaged
Vessels, all such appraisals to be conducted and made at the expense of the
Borrower (it being understood that the Administrative Agent may, upon notice to
the Borrower, obtain such appraisals and that the cost of all such appraisals
will be paid by the Borrower); and
(v) not more than 60 days (120 days in the case of the fiscal
year of the Borrower beginning on January 1, 2000) after the commencement of
each fiscal year of the Borrower, and within 15 days of any material revisions
thereto, a budget, and any material revisions thereto prepared by the Borrower
in accordance with past practices, in form reasonably satisfactory to the
Administrative Agent (including budgeted statements of income and sources and
uses of cash and balance sheets) prepared by the Borrower, for each of the
twelve months of such fiscal year, in reasonable detail and setting forth, with
appropriate discussion, the principal assumptions upon which such budgets are
based and a statement by a Responsible Officer of each of the Borrower to the
effect that, to the best of such officer's knowledge, the budget is a reasonable
estimate for the period covered thereby.
All financial statements will be prepared on a consolidated basis and in
accordance with GAAP (containing any required reconciliations to show all
amounts which for the purpose of this Agreement are to be determined in
accordance with GAAP in effect on December 31, 1998 as so determined in
accordance with GAAP in effect on such date). Audited financial statements
required to be delivered pursuant to this Agreement will be complete and
accompanied by a report of an independent auditor confirming that the audit was
conducted in accordance with generally accepted auditing standards and
confirming that in the auditor's opinion, such financial statements present
fairly in all material respects the consolidated financial position of the
Borrower at the relevant date and the consolidated results of their operations
and the consolidated changes in their financial position for the relevant
period, in accordance with GAAP.
(b) Officer's Certificates. (x) At the time of the delivery of
the financial statements provided for in Section 7.01(a) hereof, a certificate
of a Responsible Officer of the Borrower to the effect that (i) to the best of
such officer's knowledge no Default or Event of Default exists since the date of
the most recent officer's certificate delivered pursuant to this Section 7.01(b)
or, if any Default or Event of Default has occurred and is continuing specifying
the nature and extent thereof, which certificate shall set forth the
calculations required to establish whether the Borrower and its Subsidiaries
were in compliance with the provisions of Sections 8.08 through 8.11 inclusive
as at the end of such fiscal quarter or year, as the case may be and the amount
of Excess Cash Flow in respect of any Excess Cash Payment Date (if any) and (ii)
in such officer's opinion such financial statements present fairly in all
material respects the consolidated financial position of the Borrower and its
Consolidated Subsidiaries, as applicable, as at the date of such statements and
for the reporting period included in such statements (subject to normal year-end
audit adjustments).
(y) At the time of the disposition of any Mortgaged Vessel, a
certificate of a Responsible Officer of the Borrower which certificate shall (i)
certify the last appraisal received pursuant to Section 7.01(a)(iv) determining
the First Preferred Vessel Value after giving effect to such disposition and
(ii) set forth the calculations required to establish whether the Borrower and
its Subsidiaries were in compliance with the provisions of Section 8.09 after
giving effect to such disposition.
(c) Notice of Default or Litigation. Promptly, and in any
event within three Business Days after an officer of the Borrower or any of its
Subsidiaries obtains actual knowledge thereof, notice of (x) the occurrence of
any event which constitutes a Default or Event of Default, which notice shall
specify the nature thereof, the period of existence thereof and what action the
Borrower proposes to take with respect thereto and (y) the commencement of or
any significant development in any litigation or governmental proceeding pending
against the Borrower or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect or a material adverse effect on the
ability of the Borrower to perform its obligations hereunder or under any other
Credit Document, which in the case of clause (x) and (y) occurs after the
Effective Date.
(d) Other Reports and Filings. Promptly, copies of all
financial information, proxy materials and other information and reports, if
any, which the Borrower or any of its Subsidiaries shall file with the
Securities and Exchange Commission after the Effective Date or any successor
thereto (the "SEC").
(e) Environmental Matters. Promptly upon, and in any event
within five Business Days after, an officer of the Borrower or any of its
Subsidiaries obtains actual knowledge thereof, notice of one or more of the
following environmental matters, in each case, occurring after the Effective
Date, unless such environmental matters could not, individually or when
aggregated with all other such environmental matters, be reasonably expected to
have a Material Adverse Effect:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by the Borrower or any of its Subsidiaries
that (a) results in noncompliance by the Borrower or any of its
Subsidiaries with any applicable Environmental Law or (b) could
reasonably be expected to form the basis of an Environmental Claim
against the Borrower or any of its Subsidiaries or any such Real
Property;
(iii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability by the
Borrower or any of its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial action in response to
the actual or alleged presence of any Hazardous Material on any Real
Property owned or operated by the Borrower or any of its Subsidiaries
as required by any Environmental Law or any governmental or other
administrative agency; provided that in any event the Borrower shall
deliver to each Lender all notices received after the date hereof by
them or any of its Subsidiaries from any government or governmental
agency under, or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower or such Subsidiary's response thereto. In addition, upon the request of
the Administrative Agent, the Borrower will provide the Lenders with copies of
all material communications with any government or governmental agency relating
to Environmental Laws, all communications with any Person (other than their
attorneys) relating to any Environmental Claim of which notice is required to be
given pursuant to this Section 7.01(e), and such detailed reports of any such
Environmental Claim as may reasonably be requested by the Administrative Agent
on behalf of the Lenders.
(f) Other Information. Promptly, such other information
(including updated Schedules and Annexes to the Credit Documents) as the
Administrative Agent shall reasonably request.
7.02 Books, Records and Inspections. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of law shall be made of all dealings
and transactions in relation to their business and activities. The Borrower will
and will cause each of its Subsidiaries to, in all cases at the expense of the
Borrower, permit officers and designated representatives of the Administrative
Agent or any Lender to visit and inspect, during regular business hours and
under guidance of officers of the Borrower or such Subsidiary, any of the
properties of the Borrower or such Subsidiary and its Subsidiaries' Vessels, and
to examine the books of account of the Borrower or such Subsidiary and discuss
the affairs, finances and accounts of the Borrower or such Subsidiary or such
Subsidiary's Vessels with, and be advised as to the same by, its and their
officers and, in the case of the Borrower, its independent accountants (it being
understood that the Borrower shall be entitled to have a representative present
at any such discussions), all at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or such Lender may reasonably
request for the purposes of (i) inspecting the Collateral or determining the
value thereof, (ii) inspecting and/or copying (at the Borrower's expense) any
and all records pertaining thereto (iii) discussing the affairs, finances and
business of the Borrower with any officers, employees and directors of the
Borrower or with auditors (it being understood that the Borrower shall be
entitled to have a representative present at any such discussions). The Borrower
shall give the Collateral Agent fifteen days' prior written notice of any change
in the location of any facility owned or leased by the Borrower or any of its
Subsidiaries where Collateral is located or in the location of its chief
executive office or place of business from the locations specified in the Credit
Documents, and to execute in advance of such change, cause to be filed and/or
delivered to the Collateral Agent any financing statements or other documents
required by the Administrative Agent, all in form and substance reasonably
satisfactory to the Administrative Agent. The Borrower agrees to advise the
Administrative Agent promptly, in sufficient detail, of any substantial change
relating to the type, quantity or quality of the Collateral, or any event (other
than a change in price) which could have a material adverse effect on the value
of the Collateral or on the security interests granted to the Collateral Agent
on behalf of the Lenders therein. Any information obtained by the Administrative
Agent or any Lender pursuant to this Section 7.02 shall be subject to the
provisions of Section 12.13.
7.03 Maintenance of Property; Insurance. Schedule V sets forth
a true and complete listing of all insurance maintained by the Borrower and its
Subsidiaries as of the Effective Date. The Borrower will, and will cause each of
its Subsidiaries to, (i) keep all material property necessary in their business
in good working order and condition (ordinary wear and tear excepted); provided
that the Borrower and its Subsidiaries may lay up Mortgaged Vessels in
accordance with the Vessel Mortgages, (ii) maintain insurance on the Mortgaged
Vessels in at least such amounts and against at least such risks as in effect on
the Effective Date and (iii) furnish to the Administrative Agent, upon written
request, full information as to the insurance carried including, without
limitation, insurance reports in the form described in Section 5.01(m). In
addition to the requirements of the immediately preceding sentence, the Borrower
will at all times cause insurance of the types described in Schedule V to (i) be
maintained (with the same scope of coverage as that described in Schedule V) at
levels which are at least as great as the respective amount described opposite
the respective type of insurance on Schedule V under the column headed "Minimum
Amount Required to be Maintained" and (ii) comply with the requirements of the
Vessel Mortgages.
7.04 Corporate Franchises. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done, all things necessary in the
reasonable business judgment of such Borrower and such Subsidiaries to preserve
and keep in full force and effect its existence, material rights, franchises,
licenses, patents and authority to do business, except where the failure to do
so could not be reasonably expected to have a Material Adverse Effect; provided
that any transaction permitted by Section 8.02 will not constitute a breach of
this Section 7.04.
7.05 Compliance with Statutes, etc. The Borrower will, and
will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of their
business and the ownership of their property, except such noncompliances as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
7.06 End of Fiscal Years; Fiscal Quarters. The Borrower shall
cause (i) each of its and each of its Subsidiaries' fiscal years to end on
December 31, and (ii) each of its and each of its Subsidiaries' fiscal quarters
to end on the last day of each March, June, September and December.
7.07 Performance of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, perform all of their obligations arising
after the Effective Date under the terms of each material agreement by which it
is bound, except such non-performances as could not be reasonably expected to
have a Material Adverse Effect.
7.08 Additional Vessels; Further Assurances. (a) Upon
acquiring any new Vessel after the Effective Date or upon the Vessels becoming
free of any commitments preventing them to be mortgaged hereunder, the Borrower
and/or its Subsidiaries shall notify the Administrative Agent of such
acquisition, and shall within 30 days of such acquisition, execute and deliver a
Vessel Mortgage, deliver related information and reports, and otherwise take
such actions with respect to such Vessel and Vessel Mortgage as would have been
required to satisfy the conditions of Section 5.01 if such new Vessel were a
Mortgaged Vessel on the Effective Date.
(b) The Borrower agrees to cause each new Subsidiary acquired
or created after the Effective Date to execute and deliver a guaranty of all
Obligations, in substantially the form of the Subsidiary Guaranty.
(c) The Borrower agrees to pledge and deliver, or cause to be
pledged and delivered, all of the capital stock, partnership interest, limited
liability interest or other evidence of ownership of each new Subsidiary
acquired or created after the Effective Date, to the extent owned by the
Borrower or any Subsidiary Guarantor, to the Collateral Agent for the benefit of
the Lenders pursuant to the Pledge Agreement.
(d) The Borrower shall, and shall cause, each of its
Subsidiaries, at its own expense, to execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file or
record in any appropriate governmental office, any document or instrument
reasonably deemed by the Collateral Agent to be necessary or desirable for the
creation and perfection of the foregoing Liens.
(e) The Borrower, and each of its Subsidiaries, agrees that at
any time and from time to time, at the expense of the Borrower, it will promptly
execute and deliver all further instruments and documents, and take all further
action that may be reasonably necessary or desirable, or that the Administrative
Agent may reasonably request, to perfect and protect any Lien granted or
purported to be granted hereby, by the other Credit Documents, or to enable the
Collateral Agent to exercise and enforce its rights and remedies with respect to
any Collateral. Without limiting the generality of the foregoing, the Borrower
will execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be reasonably necessary
or desirable, or that the Administrative Agent may reasonably request, to
protect and preserve the Liens granted or purported to be granted hereby and by
the other Credit Documents.
(f) The Borrower hereby authorizes the Collateral Agent to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of the
Borrower, where permitted by law. A carbon, photographic or other reproduction
of this Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law. The
Collateral Agent will promptly send the Borrower any financing or continuation
statements which they file without the signature of the Borrower and the
Collateral Agent will promptly send such Borrower the filing or recordation
information with respect thereto.
(g) The security interests required to be granted pursuant to
this Section 7.08 shall be granted pursuant to security documentation (which
shall be substantially similar to the Security Documents already executed and
delivered by the Borrower or its Subsidiaries, as applicable) or otherwise
reasonably satisfactory in form and substance to the Collateral Agent and the
Borrower and shall constitute valid and enforceable perfected security interests
prior to the rights of all third Persons and subject to no other Liens except
such Liens as are permitted by Section 8.01. Such additional Security Documents
and other instruments related thereto shall be duly recorded or filed in such
manner and in such places and at such times as are required by law to establish,
perfect, preserve and protect the Liens, in favor of the Collateral Agent for
the benefit of the respective Lenders, required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges payable in
connection therewith shall be paid in full by the Borrower. At the time of the
execution and delivery of any additional Security Documents, the Borrower shall
cause to be delivered to the Collateral Agent such opinions of counsel, Vessel
Mortgages, insurance policies, vessel appraisals and other related documents as
may be reasonably requested by the Administrative Agent or the Required Lenders
to assure themselves that this Section 7.08 has been complied with.
(h) The Borrower shall, and shall cause, each of its
Subsidiaries, to deliver and execute a Vessel Mortgage, deliver related
information and reports and otherwise take such actions with respect to such
Vessel and Vessel Mortgage listed on Schedule VI hereto as would have been
required to satisfy the conditions of Section 5.01, within the time period set
forth in the column entitled "Deadline" next to the name of such Vessel.
7.09 ERISA. As soon as possible and, in any event, within 15
days after the Chief Executive Officer or Chief Financial Officer of the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following, the Borrower will
deliver to each of the Lenders a certificate of the Chief Financial Officer of
the Borrower setting forth the full details as to such occurrence and the
action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given or filed by such Borrower, such Subsidiary, the Plan administrator or
such ERISA Affiliate to or with the PBGC or any other government agency, or a
Plan participant and any notices received by such Borrower, such Subsidiary or
ERISA Affiliate from the PBGC or any other government agency, or a Plan
participant with respect thereto: that a Reportable Event has occurred (except
to the extent that the Borrower have previously delivered to the Lenders a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following thirty (30) days; that
an accumulated funding deficiency, within the meaning of Section 412 of the Code
or Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
that any contribution required to be made with respect to a Plan or Foreign
Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability; that proceedings may be or
have been instituted to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan;
that the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate will or
may incur any liability (including any indirect, contingent, or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409, 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code; or that the Borrower or any Subsidiary of the
Borrower may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan or any Foreign Pension Plan. Upon request, the
Borrower will deliver to each of the Lenders copies of any records, documents or
other information that must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA. The Borrower will also deliver to each of the
Lenders a complete copy of the annual report (on Internal Revenue Service Form
5500-series) of each Plan (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service. In addition to any certificates or notices delivered
to the Lenders pursuant to the first sentence hereof, copies of annual reports
and any records, documents or other information required to be furnished to the
PBGC or any other government agency, and any material notices received by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate with respect to
any Plan or Foreign Pension Plan shall be delivered to the Lenders no later than
ten (10) days after the date such annual report has been filed with the Internal
Revenue Service or such records, documents and/or information has been furnished
to the PBGC or any other government agency or such notice has been received by
the Borrower, the Subsidiary or the ERISA Affiliate, as applicable. The Borrower
and each of its applicable Subsidiaries shall ensure that all Foreign Pension
Plans administered by it or into which it makes payments obtains or retains (as
applicable) registered status under and as required by applicable law and is
administered in a timely manner in all respects in compliance with all
applicable laws except where the failure to do any of the foregoing could not be
reasonably expected to have a Material Adverse Effect.
7.10 Payment of Taxes. The Borrower will pay and discharge,
and will cause each of Subsidiaries to, pay and discharge all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any material properties belonging to it, and on a
timely basis, and all material lawful claims which, if unpaid, would become a
Lien or charge upon any properties of the Borrower or of any of its
Subsidiaries, provided that neither the Borrower nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves (in the good faith judgment of the management of such Person)
with respect thereto in accordance with GAAP.
7.11 Compliance with Environmental Laws. (a) The Borrower will
comply, and will cause each of its Subsidiaries to comply, with all
Environmental Laws applicable to the ownership or use of its Real Property now
or hereafter owned or operated by the Borrower or any of its Subsidiaries,
except such noncompliance as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, will within a
reasonable time-period pay or cause to be paid all costs and expenses incurred
in connection with such compliance. To the extent the Borrower or its
Subsidiaries generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, Release or disposal of Hazardous Materials
on any Real Property now or hereafter owned or operated by the Borrower or any
of its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, they will do so in each case in
material compliance with all applicable Environmental Laws except where failure
to comply, individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect.
(b) At the reasonable written request of the Administrative
Agent or the Required Lenders, which request shall specify in reasonable detail
the basis therefor, at any time and from time to time, the Borrower will
provide, at the Borrower's sole cost and expense, an environmental site
assessment report concerning any Real Property now or hereafter owned or
operated by the Borrower or any of its Subsidiaries, prepared by an
environmental consulting firm approved by the Administrative Agent, assessing
whether the Real Property and the Borrower's operations at such Real Property
are in compliance with Environmental Laws, indicating the presence or absence of
Hazardous Materials and determining the potential cost of any removal or
remedial action in connection with any Hazardous Materials on such Real
Property; provided, that such request may be made only if (i) there has occurred
and is continuing an Event of Default, (ii) the Administrative Agent reasonably
believes that the Borrower or any such Real Property is not in material
compliance with Environmental Laws or (iii) circumstances exist that reasonably
could be expected to form the basis of a material Environmental Claim against
either Borrower or any such Real Property. If the Borrower fails to provide the
same within 90 days after such request was made, the Administrative Agent may
order the same, and the Borrower shall grant and hereby grants to the
Administrative Agent, the Lenders and their environmental consultant access to
such Real Property and specifically grant the Administrative Agent, the Lenders
and their environmental consultant an irrevocable non-exclusive license, subject
to the rights of tenants, to undertake such an assessment, all at the Borrower's
expense.
7.12 Concerning the Vessels; Citizenship. Except for matters
disclosed on Schedule III hereto, the Borrower will, and will cause each of its
Subsidiaries to operate each Vessel in material compliance with all applicable
governmental rules, regulations and requirements, including, without limitation,
with respect to each Vessel operated in the coastwise trade of the United States
of America, the Shipping Act, 1916, as amended and in effect, and all
Environmental Laws. The Borrower shall, and shall cause each Subsidiary owning a
Vessel engaging in the coastwise trade of the United States of America to,
remain a "citizen of the United States" within the meaning of Section 2 of the
Shipping Act, 1916, as amended, eligible to engage in the coastwise trade of the
United States of America.
7.13 Interest Rate Cap. (i) The Borrower shall obtain an
interest rate cap agreement with respect to $75 million of the Term Loans within
60 days of the Effective Date and (ii) such agreement shall be reasonably
satisfactory in form and substance to the Administrative Agent.
7.14 Concentration Account. No later than 60 days after the
Effective Date, the Borrower will establish (i) the Concentration Account and
(ii) a cash management system providing for amounts in excess of normal
operating balances to be delivered to the Concentration Account in a manner
satisfactory to the Administrative Agent.
Section 8. Negative Covenants. The Borrower agrees that, on
and after the Effective Date and until the Total Commitments have terminated and
all Letters of Credit have expired or have been terminated or canceled and the
Loans, all Unpaid Drawings and the Notes, together with interest, Fees and all
other Obligations incurred hereunder and thereunder, are paid in full:
8.01 Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) owned by the Borrower or any of its Subsidiaries, whether now owned
or hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable with recourse to the Borrower
or any of its Subsidiaries), or assign any right to receive income or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute (except in connection with
the Permitted Liens); provided that the provisions of this Section 8.01 shall
not prevent the creation, incurrence, assumption or existence of the following
("Permitted Liens"):
(i) Liens in existence on the Effective Date to the extent
described in Schedule VIII hereto, and then only to the extent of the
Indebtedness or obligations secured thereby, and only encumbrance of
the assets encumbered thereby, on the Effective Date ("Permitted
Existing Liens");
(ii) Liens created under the Security Documents;
(iii) Liens securing Indebtedness in the amount permitted by
Section 8.04(iii) of or upon (i) any property or assets acquired
(whether by purchase, merger or otherwise) after the Effective Date, or
(ii) improvements made on any property or assets now owned or hereafter
acquired, in each case, securing the purchase price thereof or created
or incurred simultaneously with, or within 180 days after, such
acquisition or the making of such improvements or existing at the time
of such acquisition (whether or not assumed) or the making of such
improvements, as the case may be, if (x) such Lien shall be limited to
the property or assets so acquired or the improvements so made and (y)
the amount of the obligations or Indebtedness secured by such Lien
shall not be increased after the date of the acquisition of such
property or assets or the making of such improvements;
(iv) Liens arising under capitalized leases to the extent
permitted by Section 8.04(iii) provided that (x) such Liens only serve
to secure the payment of Indebtedness arising under such Capitalized
Lease Obligation and (y) the Lien encumbering the asset giving rise to
the Capitalized Lease Obligation does not encumber any other asset of
the Borrower or any Subsidiary of the Borrower;
(v) Customary Permitted Liens;
(vi) Liens of a lessor under an operating lease on the property
subject to such lease;
(vii) Liens arising from precautionary UCC financing statement
filings regarding operating leases or consignment arrangements entered
into by the Borrower or any of its Subsidiaries in the ordinary course
of business;
(viii) Liens arising out of the existence of judgments or awards
not constituting an Event of Default under Section 9.06, provided that
no cash or property is deposited or delivered to secure the respective
judgment or award (or any appeal bond in respect thereof, except as
permitted by the following clause (ix));
(ix) Liens (other than any Lien imposed by ERISA) (x) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, (y) to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal
bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money) incurred in the ordinary course of business or (z) constituting
deposits made in the ordinary course of business to secure liability
for premiums to insurance carriers, provided that the aggregate amount
of deposits at any time pursuant to sub-clause (y) and sub-clause (z)
that are not listed on Schedule VIII shall not exceed $3,000,000 in the
aggregate;
(x) Liens not otherwise permitted by the foregoing clauses (i)
through (ix) to the extent attaching to properties and assets with an
aggregate fair value not in excess of, and securing liabilities not in
excess of, $1,000,000 in the aggregate at any time outstanding;
(xi) Liens encumbering the Mortgaged Vessels permitted pursuant
to the express terms of the Vessel Mortgages and Liens encumbering the
other Vessels owned by the Borrower and its Subsidiaries of the type
permitted under the Vessel Mortgages; and
(xii) Liens under the Escrow Agreement.
8.02 Consolidation, Merger, Sale of Assets, etc. The Borrower
will not, and will not permit any of its Subsidiaries to, (i) wind up, liquidate
or dissolve its affairs or (ii) enter into any transaction of merger or
consolidation, or (iii) convey, sell, lease or otherwise dispose of (or agree to
do any of the foregoing at any future time) all or any part of its property or
assets, or (iv) enter into any partnerships, joint ventures or sale-leaseback
transactions, or (v) purchase or otherwise acquire (in one or a series of
related transactions) any part of the property or assets (other than purchases
or other acquisitions of inventory, materials and equipment in the ordinary
course of business) of any Person, except that the foregoing shall not preclude:
(i) Capital Expenditures by the Borrower and its Subsidiaries
shall be permitted to the extent not in violation of Section 8.06;
(ii) investments, acquisitions, transfers and dispositions of
property may be made to the extent permitted by Section 8.05;
(iii) the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long
as any such lease does not create a Capitalized Lease Obligation except
to the extent permitted by Section 8.04(iii));
(iv) the Borrower and its Subsidiaries may make sales or
transfers of inventory and equipment (other than Vessels) no longer
used or useful in the business or operations of the Borrower, in each
case, in the ordinary course of business and consistent with past
practices (including, without limitation, sales or transfers of
equipment by the Borrower to its Subsidiaries so long as at fair market
value);
(v) the Borrower and its Subsidiaries may sell or discount, in
each case without recourse and in the ordinary course of business,
overdue accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof
consistent with customary industry practice (and not as part of any
bulk sale or financing of receivables);
(vi) transfers of condemned property to the respective
governmental authority or agency that has condemned same (whether by
deed in lieu of condemnation or otherwise), and transfers of properties
that have been subject to a casualty to the respective insurer of such
property as part of an insurance settlement;
(vii) licenses or sublicenses by the Borrower and its
Subsidiaries of software, trademarks and other intellectual property in
the ordinary course of business and which do not materially interfere
with the business of the Borrower or any Subsidiary;
(viii) the Borrower or any Subsidiary Guarantor may transfer
assets or lease to or acquire or lease assets from the Borrower or any
Subsidiary Guarantor and any other Subsidiary of the Borrower may
transfer assets to the Borrower or any Subsidiary Guarantor and any
Subsidiary may be merged or consolidated with or into or be liquidated
into the Borrower (as long as the Borrower is the surviving
corporation) or any Subsidiary Guarantor;
(ix) the Borrower or any Subsidiary may enter into consignment
arrangements (as consignor or as consignee) or similar arrangements for
the sale of goods in the ordinary course of business and consistent
with the past practices of the Borrower and its Subsidiaries prior to
the Effective Date;
(x) sales or dispositions of assets to the extent that the
aggregate Net Sale Proceeds received from all such sales and
dispositions permitted by this clause (x) shall not exceed $20 million
in any fiscal year of the Borrower, provided that (i) each such sale
shall be for an amount at least equal to the fair market value thereof
(as determined in good faith by the Board of Directors or senior
management of the Borrower), (ii) at least 85% of the consideration
therefor shall be cash and (iii) the proceeds thereof shall be applied
as required under Section 4.02; and
(xi) dispositions of Cash Equivalents and Foreign Cash
Equivalents in the ordinary course of business.
To the extent the Required Lenders waive the provisions of this Section 8.02
with respect to the disposition of any Collateral, or any Collateral is disposed
of as permitted by this Section 8.02 (except to the Borrower or any of its
Subsidiaries), such Collateral shall be sold free and clear of the Liens created
by the Credit Documents, and the Collateral Agent shall be authorized to take
such actions as it deems appropriate to effect the foregoing.
8.03 Dividends. The Borrower will not, and will not permit any
of its Subsidiaries to, authorize, declare or pay any Dividends or return any
capital to, their stockholders or authorize, except that (i) any Subsidiary of
the Borrower may make distributions to any Wholly-Owned Subsidiary of the
Borrower owning such Subsidiary and to the Borrower and (ii) so long as no Event
of Default then exists or would arise therefrom, the Borrower may repurchase its
capital stock in accordance with the terms of its Certificate of Incorporation
to comply with the citizenship requirements of the Merchant Marine Act of 1936,
as amended, the Shipping Act of 1916, as amended and the regulations promulgated
thereunder, so long as the amount thereof does not exceed $2,500,000.
8.04 Indebtedness. The Borrower will not, and will not permit
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except as follows:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) Existing Indebtedness;
(iii) Indebtedness secured by Liens permitted pursuant to Section
8.01(iii) or arising under Capitalized Lease Obligations incurred after
the Effective Date, to the extent all of the foregoing Indebtedness
does not exceed (x) $5 million in the aggregate at any time outstanding
for the fiscal year ending December 31, 2000 and (y) $10,000,000 in the
aggregate at any time outstanding thereafter;
(iv) Accrued expenses and current trade accounts payable
incurred in the ordinary course of business;
(v) Intercompany indebtedness as described in Section 8.05(ix);
provided that if any such intercompany indebtedness is evidenced by
promissory notes, such promissory notes shall be pledged pursuant to
the Pledge Agreement;
(vi) Contingent Obligations of the Borrower or any Subsidiary as
a guarantor under any lease pursuant to which the Borrower or a
Subsidiary is the lessee so long as such lease is otherwise permitted
hereunder;
(vii) Indebtedness in respect of Customary Permitted Liens;
(viii) Guarantees by the Borrower of the performance obligations
of its Subsidiaries;
(ix) Indebtedness of the Borrower not to exceed $95,000,000
under the Senior Secured Second Lien Notes, and the guarantees thereof
under the Note Subsidiary Guaranty;
(x) Indebtedness in respect of Hedging Agreements entered into
for non-speculative purposes; and
(xi) Indebtedness evidenced by an unguaranteed promissory note
issued by the Borrower on terms satisfactory to the Administrative
Agent and the Syndication Agent in connection with its investment in
the Lightship Tanker Entities permitted under Section 8.05(vii) and
secured by the capital stock or other ownership interest in such
investment;
(xii) Additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount not to exceed (a) $1
million for the fiscal year ending December 31, 2000 and (b) $2,500,000
during each calendar year thereafter, at any one time outstanding.
8.05 Advances, Investments and Revolving Loans. The Borrower
will not, and will not permit any of its Subsidiaries to lend money or credit or
make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person or hold any cash or Cash Equivalents, except that the following
shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
accounts receivable owing to any of them, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance
with customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents (and Foreign Subsidiaries may hold Foreign
Cash Equivalents), provided that during any time that Revolving Loans
or Swingline Loans are outstanding, the Borrower will not, and will not
permit any of the Subsidiaries to, directly or indirectly maintain in
the aggregate, in all of their checking, savings or other accounts
total cash balances and investments (including investments in Cash
Equivalents and Foreign Cash Equivalents) in excess of $15,000,000 for
any period of five consecutive days;
(iii) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees, officers and directors so long as the aggregate principal
amount thereof at any time outstanding (determined without regard to
any write-downs or write-offs of such loans and advances) shall not
exceed $1,000,000;
(iv) the Borrower and its Subsidiaries may sell or transfer
assets to each other to the extent permitted by Section 8.02(x);
(v) investments by the Borrower and its Subsidiaries existing
on the Effective Date and set forth on Schedule IX;
(vi) investments consisting of promissory notes payable to the
Borrower or any Subsidiary thereof in connection with sales of assets
permitted by Section 8.02(x);
(vii) investments after the Effective Date by the Borrower and
its Subsidiaries in the Lightship Tankers Entities for aggregate
consideration not to exceed $21 million (no more than a portion to be
satisfactory to the Administrative Agent and the Syndication Agent of
which may be cash and the remainder of which shall be in the form of
one or more promissory notes, on terms satisfactory to the
Administrative Agent and the Syndication Agent);
(viii) Hedge Agreements permitted under Section 8.04(x);
(ix) the Borrower may make investments (and capital
contributions) in, and loans and advances to, any Subsidiary Guarantor
and any Subsidiary Guarantor may make investments (and capital
contributions) in, and loans and advances to, the Borrower and any
other Subsidiary Guarantor;
(x) the Borrower and each of its Subsidiaries may acquire and
own investments (including debt obligations) received in connection
with bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business; and
(xi) in addition to investments, loans and advances permitted
above, the Borrower and its Subsidiaries may make additional
investments, loans and advances to or in any Person so long as the
aggregate amount of all such investments, loans and advances does not
exceed $1million.
8.06 Capital Expenditures. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, incur Consolidated Capital Expenditures,
provided that the Borrower and its Subsidiaries may make Consolidated Capital
Expenditures during each fiscal period set forth below (taken as one accounting
period) so long as the aggregate amount of Consolidated Capital Expenditures
made under this Section 8.06(a) does not exceed for any period set forth below
the amount set forth opposite such period:
----------------------------------------------------- -----------------------
Fiscal Year Ending Amount
----------------------------------------------------- -----------------------
----------------------------------------------------- -----------------------
December 31, 2000 $35 million
----------------------------------------------------- -----------------------
----------------------------------------------------- -----------------------
December 31, 2001 $35 million
----------------------------------------------------- -----------------------
----------------------------------------------------- -----------------------
December 31, 2002 $40 million
----------------------------------------------------- -----------------------
----------------------------------------------------- -----------------------
December 31, 2003 $40 million
----------------------------------------------------- -----------------------
----------------------------------------------------- -----------------------
December 31, 2004 $40 million
----------------------------------------------------- -----------------------
----------------------------------------------------- -----------------------
December 31, 2005 $40 million
----------------------------------------------------- -----------------------
----------------------------------------------------- -----------------------
December 31, 2006 $40 million
----------------------------------------------------- -----------------------
(b) In the event that the maximum amount which is permitted to
be expended in respect of Consolidated Capital Expenditures during any fiscal
year of the Borrower pursuant to this Section 8.06 (without giving effect to
this clause (b)) is not fully expended during such fiscal year, the maximum
amount which may be expended during the immediately succeeding fiscal year
pursuant to Section 8.06(a) shall be increased by 50% of such unutilized amount.
(c) In addition to the foregoing, the maximum amount which is
permitted to be expended in respect of Consolidated Capital Expenditure during
any fiscal year of the Borrower pursuant to this Section 8.06 (including clause
(b) thereof) shall be increased by the amount of Unutilized Excess Cash Flow for
the previous fiscal year.
(d) In addition to the foregoing, the Borrower and its
Subsidiaries may make Consolidated Capital Expenditures consisting of (x) the
reinvestment of Insurance Proceeds in accordance with Section 4.02(A) and (y)
the acquisition of certain assets disclosed to the Lenders prior to the
Effective Date made in connection with the settlement of claims outstanding as
of the Effective Date.
8.07 Transactions with Affiliates. The Borrower will not, and
will not permit its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of such Person, other than on terms and conditions substantially
as favorable to such Person as would be obtainable by such Person at the time in
a comparable arm's-length transaction with a Person other than an Affiliate;
provided that this Section 8.07 shall not apply to transactions between Credit
Parties or transactions permitted under Section 8.05.
8.08 Minimum Consolidated EBITDA. The Borrower will not permit
Consolidated EBITDA for any Test Period ended on the last day of a fiscal
quarter set forth below to be less than the amount set forth opposite such
fiscal quarter below:
------------------------------------- ------------------------------
Fiscal Quarter Ended Minimum EBITDA
------------------------------------- ------------------------------
------------------------------------- ------------------------------
March 31, 2000 $10 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
June 30, 2000 $20 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
September 30, 2000 $35 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
December 31, 2000 $52.5 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
March 31, 2001 $57.5 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
June 30, 2001 $60 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
September 30, 2001 $62.5 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
December 31, 2001 $65 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
March 31, 2002 $67.5 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
June 31, 2002 $70 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
September 30, 2002 $72.5 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
December 31, 2002 $75 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
March 31, 2003 $77.5 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
June 30, 2003 $80 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
September 30, 2003 $82.5 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
December 31, 2003 $85 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
March 31, 2004 $87.5 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
June 30, 2004 $90 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
September 30, 2004 $95 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
December 31, 2004 $100 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
March 31, 2005 $100 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
June 30, 2005 $100 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
September 30, 2005 $100 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
December 31, 2005 $100 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
March 31, 2006 $100 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
June 30, 2006 $100 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
September 30, 2006 $100 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
December 31, 2006 $100 million
------------------------------------- ------------------------------
------------------------------------- ------------------------------
8.09 Loan to Value Maintenance. The Borrower will not permit
the sum of the aggregate principal amount of outstanding Term Loans plus the
Total Revolving Loan Commitment to exceed 50% of fair market value of all
Mortgaged Vessels at any time other than the Mortgaged Vessels subject to a
Second Preferred Mortgage of the Lenders (such value, the "First Preferred
Vessel Value") as determined by the most recent appraisal delivered by the
Borrower to the Administrative Agent in accordance with the terms of this
Agreement.
8.10 Minimum Fixed Charge Coverage Ratio. The Borrower shall
not permit the Fixed Charge Coverage Ratio on the last day of any Test Period
(starting with the Test Period ended on December 31, 2000) to be less than
1.00:1.00.
8.11 Minimum Working Capital Ratio. The Borrower will not
permit its Working Capital Ratio on the last day of any fiscal quarter set forth
below to be less than the ratio set forth opposite such date below:
------------------------------------ ----------------------------
Fiscal Quarter Ended Ratio
------------------------------------ ----------------------------
------------------------------------ ----------------------------
March 31, 2000 1.25:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
June 30, 2000 1.25:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
September 30, 2000 1.25:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
December 31, 2000 1.25:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
March 31, 2001 1.25:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
June 30, 2001 1.25:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
September 30, 2001 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
December 31, 2001 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
March 31, 2002 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
June 31, 2002 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
September 30, 2002 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
December 31, 2002 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
March 31, 2003 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
June 30, 2003 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
September 30, 2003 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
December 31, 2003 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
March 31, 2004 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
June 30, 2004 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
September 30, 2004 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
December 31, 2004 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
March 31, 2005 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
June 30, 2005 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
September 30, 2005 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
December 31, 2005 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
March 31, 2006 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
June 30, 2006 1.5:0.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
September 30, 2006 1.5:1.00
------------------------------------ ----------------------------
------------------------------------ ----------------------------
December 31, 2006 1.5:1.00
------------------------------------ ----------------------------
8.12 Subsidiaries. The Borrower will not, and will not permit
its Subsidiaries to, on and after the Effective Date establish, create or
acquire any new Subsidiary unless the Borrower and its Subsidiaries (including
such new Subsidiary) comply with Section 7.08.
8.13 Restriction on Payment Restrictions Affecting
Subsidiaries. The Borrower shall not, and shall not permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction (other than pursuant to this Agreement)
on the ability of the Borrower's Subsidiaries to (a) pay dividends or make any
other distributions on its capital stock or any other interest or participation
in its profits, owed by the Borrower or pay any Indebtedness owed to the
Borrower, (b) make advances or loans to the Borrower or (c) transfer any of its
properties or assets to the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) the Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Borrower or such Subsidiary,
(iv) customary restrictions on dispositions of real property interests and (v)
restrictions on the payment of dividend related to the Title XI guarantee
financing documents.
8.14 Change in Business The Borrower will not and will not
permit any of its Subsidiaries to engage (directly or indirectly) in any
business other than the business of the Borrower and its Subsidiaries as of the
Effective Date and other businesses reasonably related thereto.
8.15 Limitation on Modifications or Prepayment of
Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries
to, (i) amend or modify, or permit the amendment or modification of, any
provision of the Senior Secured Second Lien Notes Documents or of any agreement
relating thereto, (ii) make (or give notice in respect of) any voluntary or
optional payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when
due) any Senior Secured Second Lien Note.
8.16 Limitation on Issuance of Capital Stock. (a) The Borrower
will not directly or indirectly, sell issue, any capital stock which is
preferred stock.
(b) The Borrower will not permit any of its Subsidiaries to
issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and additional issuances which do
not decrease the percentage ownership of the Borrower or any of its Subsidiaries
in any class of the capital stock of such Subsidiary, (iii) in the case of
Foreign Subsidiaries of the Borrower, to qualify directors to the extent
required by applicable law, and (iv) Subsidiaries of the Borrower formed after
the Effective Date may issue capital stock to the Borrower or the respective
Subsidiary of the Borrower which is to own such stock in accordance with the
requirements of Section 7.08 and (v) pursuant to mergers and consolidations
permitted under Section 8.04(v). All capital stock issued in accordance with
this Section 8.16(b) shall, to the extent required by the Pledge Agreement, be
delivered to the Collateral Agent for pledge pursuant to the Pledge Agreement.
Section 9. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment
when due of any payment of principal of its Loans or Notes or of any Unpaid
Drawing or (ii) default, and such default shall continue for at least three
Business Days, in any payment of interest on its Loans or Notes or on any Unpaid
Drawing or any Fees or any other amounts owing by it hereunder or thereunder; or
9.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be incorrect
or misleading in any material respect when made; or
9.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 7.06 or any provision of Section 8 or (ii) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Sections 9.01 and 9.02 and clause (i) of this Section 9.03)
contained in this Agreement or any other Credit Document and such default shall
continue unremedied for a period of 30 days after written notice to the Borrower
by the Administrative Agent or the Required Lenders; or
9.04 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following thirty (30) days, any Plan which
is subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been terminated or to be the subject of termination
proceedings under ERISA, any Plan shall have an Unfunded Current Liability, a
contribution required to be made with respect to a Plan or a Foreign Pension
Plan has not been timely made, the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate has incurred or is likely to incur any liability to or on
account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the
Code or on account of a group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) under Section 4980B of the Code, or the
Borrower or any Subsidiary of the Borrower has incurred liabilities pursuant to
one or more employee welfare benefit plans (as defined in Section 3(1) of ERISA)
that provide benefits to retired employees or other former employees (other than
as required by Section 601 of ERISA) or Plans or Foreign Pension Plans, or a
"default," within the meaning of Section 4219(c)(5) of ERISA, shall occur with
respect to any Plan; any applicable law, rule or regulation is adopted, changed
or interpreted, or the interpretation or administration thereof is changed, in
each case after the date hereof, by any governmental authority or agency or by
any court (a "Change in Law"), or, as a result of a Change in Law, an event
occurs following a Change in Law, with respect to or otherwise affecting any
Plan; (b) there shall result from any such event or events the imposition of a
lien, the granting of a security interest, or a liability; and (c) such lien,
security interest or liability, individually, and/or in the aggregate, in the
reasonable opinion of the Required Lenders, has had, or could reasonably be
expected to have, a Material Adverse Effect; or
9.05 Security Documents. Any Security Document shall cease to
be in full force and effect, or any Lien purported to be created by any Security
Document in any of the Collateral purported to be covered thereby shall, for any
reason (other than the release of such Lien in accordance with the terms hereof
or thereof), cease to be valid or shall cease to have the priorities set forth
in this Agreement or the other Credit Documents, or the Borrower shall default
in the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to the Security Documents and such
default (other than a default arising from the failure to deliver or perfect
Collateral) shall continue for at least 30 days after written notice to the
Borrower by the Administrative Agent or the Required Lenders; or
9.06 Judgments. One or more judgments or decrees shall be
entered against the Borrower or any of its Subsidiaries involving in the
aggregate for the Borrower or any of its Subsidiaries a liability (to the extent
not paid or fully covered (subject to a deductible not in excess of 5% of such
liability) by insurance) of $2,000,000 or more outstanding at any one time, and
either (i) enforcement proceedings shall have been commenced and shall be
continuing by any creditor upon such judgments or orders or (ii) there shall be
any period of 60 consecutive days during which a stay of enforcement of such
judgments or orders, by reason of a pending appeal or otherwise, shall not be in
effect; or
9.07 Change of Control. A Change of Control shall occur and be
continuing; or
9.08 Default Under Other Agreements. (a) The Borrower or any
of its Subsidiaries shall (i) default in any payment in respect of any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided as the instrument or agreement under which such Indebtedness was
created or (ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, any such
Indebtedness to become due prior to its stated maturity; or (b) any such
Indebtedness (other than the Obligations) of the Borrower or any such Subsidiary
shall be declared to be due and payable, or required to be prepaid other than by
a regularly scheduled required prepayment, prior to the stated maturity thereof,
provided that it shall not constitute an Event of Default pursuant to clause (a)
or (b) of this Section 9.08 unless the principal amount of any one issue of such
Indebtedness exceeds $2,500,000 or the aggregate amount of all such Indebtedness
referred to in clauses (a) and (b) above exceeds $5,000,000 at any one time; or
9.09 Bankruptcy, etc. (i) The Borrower or any of its
Subsidiaries shall commence voluntary cases concerning themselves under the
Bankruptcy Code; or an involuntary case is commenced against the Borrower or any
of its Subsidiaries and the petition is not controverted within 10 Business
Days, or is not dismissed within 30 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of the Borrower or any of its
Subsidiaries; or the Borrower or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or such
Subsidiary; or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 30
days; or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 30 days; or the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or (ii) for any reason, the Confirmation Order or any provision
thereof, are reversed, nullified, vacated or rescinded and the effect of which
is to subject the Borrower, its Subsidiaries or any of their properties or
assets to the proceedings or actions described in clause (i) above; or
9.10 Subsidiary Guaranty. After the execution and delivery
thereof, the Subsidiary Guaranty or any provision thereof shall cease to be in
full force or effect (other than the release of any Subsidiary Guarantor in
accordance with the terms hereof or thereof), or any Subsidiary Guarantor or any
Person acting by or on behalf of any such Subsidiary Guarantor shall deny or
disaffirm such Subsidiary Guarantor's obligations under such Subsidiary Guaranty
or any such Subsidiary Guarantor shall default in the due performance or
observance of any material term, covenant or agreement on its part to be
performed or observed by it pursuant to the Guaranty;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent shall upon the written
request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Note to enforce its claims
against the Borrower (provided that if an Event of Default specified in Section
9.09 shall occur with respect to the Borrower, the result which would occur upon
the giving of written notice by the Administrative Agent as specified in clauses
(i) and (ii) below shall occur automatically without the giving of any such
notice): (i) declare the Total Commitments terminated, whereupon the Commitments
of each Lender shall forthwith terminate immediately and any Commitment
Commission and Fees shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and all Obligations owing hereunder to be, whereupon the
same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; (iv) declare all reimbursement obligations in respect
of all outstanding Letters of Credit, whether or not then due and payable or
matured, to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; (v) direct the Collateral Agent to enforce
any or all of the Liens and security interests created pursuant to this
Agreement and the Security Documents; (vi) apply any cash collateral held by the
Administrative Agent; and (vii) exercise any other rights or remedies
(including, without limitation, set-off rights) under the Credit Documents and
applicable law.
Section 10. Definitions.
10.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Adjusted Certificate of Deposit Rate" shall mean, on any day,
the sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by
dividing (x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitled "Select
Interest Rates," published weekly on Form H.15 as of the date hereof, or if such
publication or a substitute containing the foregoing rate information shall not
be published by the Federal Reserve System for any week, the weekly average
offering rate determined by the Administrative Agent on the basis of quotations
for such certificates received by it from three certificate of deposit dealers
in New York of recognized standing or, if such quotations are unavailable, then
on the basis of other sources reasonably selected by the Administrative Agent,
by (y) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable on such day to a
three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily net
annual assessment rate as estimated by the Administrative Agent for determining
the current annual assessment payable by the Administrative Agent to the Federal
Deposit Insurance Corporation for insuring three-month certificates of deposit.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization (including amortization of dry docking expenses),
deferred tax expense and non-cash interest expense) and net non-cash losses
which were included in arriving at Consolidated Net Income for such period less
the sum of the amount of all net non-cash gains included in arriving at
Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash, Cash Equivalents
and Foreign Cash Equivalents) less Consolidated Current Liabilities.
"Adjusted Total Revolving Loan Commitment" shall mean at any
time the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Lenders.
"Administrative Agent" shall mean BTCo, as administrative
agent for this Agreement, and any successor administrative agent appointed under
Section 11.09.
"Affected Eurodollar Loans" shall have the meaning provided in
Section 4.02(B)(a).
"Affiliate" shall mean, with respect to any Person, any other
Person (i) directly or indirectly controlling (including, but not limited to,
all directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person, or (ii) that directly or indirectly
owns more than 10% of the voting securities of such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of Voting
Securities, by contract or otherwise.
"Agents" shall mean the Administrative Agent and the
Collateral Agent.
"Aggregate Unutilized Revolving Loan Commitments" shall mean,
at any time, the amount equal to (i) the Total Revolving Loan Commitment less
(ii) the sum of (x) the aggregate outstanding principal amount of Revolving
Loans and Swingline Loans and (y) the aggregate Letter of Credit Outstandings.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Margin" shall mean (A) in the case of Tranche A
Term Loans and Revolving Loans that are maintained as (x) Base Rate Loans,
2.25%, and (y) Eurodollar Loans, 3.25%, (B) in the case of Tranche B Term Loans
that are maintained as (x) Base Rate Loans, 2.75% and (y) Eurodollar Loans,
3.75% and (c) in the case of Tranche C Term Loans that are maintained as (x)
Base Rate Loans, 3.25% and (y) as Eurodollar Loans, 4.25%.
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement in the form of Exhibit N hereto
appropriately completed.
"Assignor" shall mean the Borrower and each Subsidiary
Guarantor.
"Bankruptcy Code" shall mean Title 11 of the United States
Code entitled "Bankruptcy", as in effect from time to time.
"Bankruptcy Court" shall mean the United States Bankruptcy
Court for the District of Delaware presiding over the chapter 11 cases of the
Borrower and Subsidiary Guarantors under consolidated Case No. 99-30 24 (PJW).
"Base Rate" at any time shall mean the higher of (x) the per
annum rate of interest which is 1/2 of 1% in excess of the Adjusted Certificate
of Deposit Rate and (y) the Prime Lending Rate as in effect from time to time.
"Base Rate Loans" shall mean any Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the incurrence of one Type of Loan of a
single Tranche from all the Lenders having Commitments for the respective
Tranche (or from the Swingline Lender in the case of Swingline Loans) on a given
date (or resulting from conversions or continuations on a given date), having in
the case of Eurodollar Loans the same Interest Period, provided that Base Rate
Loans incurred pursuant to Section 1.10(b) shall be considered part of the
related Borrowing of Eurodollar Loans.
"BTCo" shall have the meaning provided in the first paragraph
of this Agreement.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking institutions
are authorized by law or other government action to close and (ii) with respect
to all notices and determinations in connection with, and payments of principal
and interest on, Eurodollar Loans, any day which is a Business Day described in
clause (i) above and which is also a day for trading by and between banks in the
interbank Eurodollar market.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under GAAP, are or will be required to be capitalized
on the books of such Person, in each case taken at the amount thereof accounted
for as indebtedness in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States, is pledged in support thereof) having
maturities of not more than one year from the date of acquisition, (ii) time
deposits and certificates of deposit of any commercial bank or trust company
having, or which is the principal banking subsidiary of a bank holding company
or trust company organized under the laws of the United States, any State
thereof, the District of Columbia, or any foreign jurisdiction having capital,
surplus and undivided profits aggregating in excess of $200,000,000, with
maturities of not more than one year from the date of acquisition by such
Person, (iii) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-1 or the equivalent thereof by Standard & Poor's Corporation or at least
P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc., any having
such ratings and in each case maturing not more than one year after the date of
acquisition by such Person, (v) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (iv) above and (vi) demand deposit accounts maintained in
the ordinary course of business not in excess of $100,000 in the aggregate.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as same may be amended from time to
time.
"Change in Law" shall have the meaning provided in Section
9.04 of this Agreement.
"Change of Control" shall mean (a) the acquisition, whether
directly or indirectly, after the Effective Date by any Person or "group" as
defined in Section 13(d) (3) of the Securities Exchange Act of 1934, as amended,
of (i) shares, or the right to vote shares, constituting more than 30% of the
common stock or other voting securities of the Borrower or (ii) the power to
elect a majority of the Borrower's board of directors, (b) the election of a
majority of the Borrower's board of directors which does not consist of
Continuing Directors or (c) a "change of control" or similar event under the
Senior Secured Second Lien Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all the "Collateral" referred to in
the Security Documents.
"Collateral Agent" shall mean BTCo acting as collateral agent
pursuant to this Agreement and the Security Documents.
"Commitment" shall mean any of the Commitments of any Lender,
i.e., whether the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment, the Tranche C Term Loan Commitment or the Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Company" shall mean any corporation, limited liability
company, partnership or other business entity (and the adjectival form thereof,
where appropriate).
"Concentration Account" shall have the meaning provided in
Section 6.25.
"Confidential Material" shall have the meaning provided in
Section 12.13.
"Confidentiality Agreement" shall mean an agreement in the
form of Exhibit O hereto.
"Confirmation Order" shall have the meaning provided in
Section 5.01(d).
"Consolidated Capital Expenditures" shall mean, the aggregate
of all expenditures by the Borrower and its Subsidiaries which should be
capitalized in accordance with GAAP, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance, dry docking and repairs which should be capitalized in
accordance with GAAP) and the amount of Capitalized Lease Obligations incurred
by the Borrower and its Subsidiaries which are required to be reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries.
"Consolidated Cash Interest Expense", shall mean, for any
period, the portion of Consolidated Interest Expense paid in cash.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Borrower and its Subsidiaries.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Borrower and its Subsidiaries at
such time plus the principal amount of outstanding Revolving Loans and Swingline
Loans.
"Consolidated EBIT" shall mean, for any period, the
Consolidated Net Income of the Borrower and its Subsidiaries, before
Consolidated Net Interest Expense and provision for taxes and without giving
effect to any extraordinary gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT, adjusted by adding thereto the amount of all amortization of intangibles,
all amounts accounted for as deferred dry docking expenses and depreciation, all
non-cash charges in respect of pension and retiree benefits, in each case that
were deducted in arriving at Consolidated EBIT for such period.
"Consolidated Fixed Charges" shall mean, for any period, the
sum during such period of (i) Consolidated Cash Interest Expense, (ii) cash
taxes paid, (iii) mandatory principal repayments of Indebtedness and (iv)
Consolidated Capital Expenditures.
"Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of the Borrower and its Subsidiaries
determined in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period,
the total consolidated interest expense of the Borrower and its Subsidiaries for
such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Subsidiaries representing the interest
factor for such period.
"Consolidated Subsidiaries" shall mean, as to the Borrower,
all Subsidiaries of the Borrower and all other Persons (including the Lightship
Tanker Entities) which are consolidated with the Borrower for financial
reporting purposes in accordance with GAAP.
"Consolidated Working Capital" at any time shall mean
Consolidated Current Assets less Consolidated Current Liabilities (but excluding
the current portion of the Term Loans).
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable pursuant
to the terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Continuing Directors" shall mean the directors of the
Borrower on the Effective Date and each other director if such director's
nomination for the election to the board of directors of the Borrower is
recommended by a majority of the other Continuing Directors.
"Credit Documents" shall mean this Agreement, and once
executed and delivered pursuant to the terms of this Agreement, each Note, each
Security Document and the Subsidiary Guaranty.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary
Guarantor.
"Customary Permitted Liens" shall mean
(i) Liens (other than any Lien imposed under ERISA) for taxes,
assessments or charges of any government authority or claims not yet
due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with the
provisions of generally accepted accounting principles;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens (other than any
Lien imposed under ERISA) imposed by law created in the ordinary course
of business for amounts not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP or which in the aggregate do not detract from
the value of the Borrower or any Subsidiary's property or assets or
materially impair the use thereof in the operation of the business of
the Borrower or such Subsidiary;
(iii) licenses, leases or subleases granted to other Persons in
the ordinary course of business not materially interfering with the
conduct of the business of the Borrower and its Subsidiaries taken as a
whole;
(iv) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing Indebtedness and not materially
interfering with the conduct of the business of the Borrower or any of
its Subsidiaries;
(v) rights of tenants, subtenants, franchisees or parties in
possession (other than a debtor in possession, trustee in bankruptcy or
receiver of the Borrower), or options or rights of first refusal,
whether pursuant to leases, subleases, franchise agreements, other
occupancy agreements or otherwise, if such rights were vested on the
Effective Date or created thereafter in the ordinary course of business
in transactions permitted under this Agreement;
(vi) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this
Agreement;
(vii) Liens in favor of a banking institution arising as a matter
of law encumbering deposits (including the right of set-off) held by
such banking institutions incurred in the ordinary course of business
and which are within the general parameters customary in the banking
industry;
(viii) Liens in favor of customs and revenue authorities arising
as a matter of law to secure the payment of customs duties in
connection with the importation of goods;
(ix) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the purchase or sale of goods
entered into by the Borrower or any of its Subsidiaries in the ordinary
course of business in accordance with the past practices of the
Borrower and its Subsidiaries; and
(x) deposits made to secure statutory obligations in the form
of excise taxes.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"DIP Facility" shall have the meaning provided in the recitals
to this Agreement.
"Disclosure Statement" shall mean the disclosure statement in
the form of the Debtors' Disclosure Statement with respect to the First Amended
Joint Plan of Reorganization pursuant to Section 1125 of the Bankruptcy Code,
dated November 1, 1999.
"Dividend" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or authorized or made any other distribution, payment or delivery
of property (other than common stock of such Person) or cash to its stockholders
as such, or redeemed, retired, purchased or otherwise acquired, directly or
indirectly, for consideration any shares of any class of its capital stock
outstanding on or after the Effective Date (or any options or warrants issued by
such Person with respect to its capital stock), or set aside any funds for any
of the foregoing purposes, or shall have permitted any of its Subsidiaries to
purchase or otherwise acquire for consideration any shares of any class of the
capital stock of such Person outstanding on or after the Effective Date (or any
options or warrants issued by such Person with respect to its capital stock).
Without limiting the foregoing, "Dividends" with respect to any Person shall
also include all payments made or required to be made by such Person with
respect to any stock appreciation rights, plans, equity incentive or achievement
plans or any similar plans or setting aside of any funds for the foregoing
purposes.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States (expressed in dollars).
"Domestic Subsidiary" shall mean each Subsidiary of the
Borrower incorporated or organized in the United States or any State or
territory thereof.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Effective Date" shall have the meaning provided in Section
5.01.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution or other institutional "accredited investor" (as
defined in Regulation D of the Securities Act).
"Employment Agreements" shall mean any employment related
agreements to which the Borrower and/or the Subsidiary Guarantors is a party.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" means any applicable federal, state,
provincial, foreign or local statute, law, rule, regulation, ordinance, code,
binding and enforceable guideline, binding and enforceable written policy or
rule of common law now or hereafter in effect and in each case as amended, or
any binding judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, to the extent
binding on the Borrower or any of its Subsidiaries, relating to the environment,
employee health and safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 USC. ss.
1251 et seq.; the Toxic Substances Control Act, 15 USC. ss. 2601 et seq.; the
Clean Air Act, 42 USC. ss. 7401 et seq.; the Safe Drinking Water Act, 42 USC.
ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 USC. ss. 2701 et seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 USC. ss.
11001 et seq.; the Hazardous Material Transportation Act, 49 USC. ss. 1801 et
seq.; and the Occupational Safety and Health Act, 29 USC. ss. 651 et seq. (to
the extent it regulates occupational exposure to Hazardous Materials); any state
and local or foreign counterparts or equivalents, in each case as amended from
time to time.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement, and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the Borrower or a Subsidiary of the
Borrower would be deemed to be a "single employer" (i) within the meaning of
Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the Borrower
or a Subsidiary of the Borrower being or having been a general partner of such
person.
"Escrow Agreement" shall mean the escrow agreement created for
the interest paid under the Senior Secured Second Lien Notes.
"Eurodollar Loan" shall mean any Loan (excluding Swingline
Loans) designated as such by the Borrower at the time of the incurrence thereof
or conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to
first-class banks in the New York interbank Eurodollar market by the
Administrative Agent for Dollar deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the Eurodollar Loan of
the Administrative Agent with maturities comparable to the Interest Period
applicable to such Eurodollar Loan commencing two Business Days thereafter as of
10:00 A.M. (New York time) on the date which is two Business Days prior to the
commencement of such Interest Period, divided (and rounded off to the nearest
1/100 of 1%) by (b) a percentage equal to 100% minus the then stated maximum
rate of all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves required by applicable law)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency funding or liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section
9.
"Excess Cash Flow" shall mean, for any period, the remainder
of (a) the sum of (i) Adjusted Consolidated Net Income for such period, and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, minus (b) the sum of (i) the amount of
Consolidated Capital Expenditures made by the Borrower and its Subsidiaries on a
consolidated basis during such period, in each case except to the extent
financed with the proceeds of Indebtedness or pursuant to Capitalized Lease
Obligations, (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the Borrower and its Subsidiaries and the
permanent repayment of the principal component of Capitalized Lease Obligations
of the Borrower and its Subsidiaries or deposits for debt service reserves
(including, without limitation reserve fund payments required to be deposited
pursuant to Title XI guarantee financing documents, (excluding (1) payments with
proceeds of sale of assets, (2) payments with the proceeds of other Indebtedness
or equity and (3) payments of Loans or other Obligations, provided that
repayments of Loans shall be deducted in determining Excess Cash Flow if such
repayments were (x) required as a result of a Scheduled Repayment under Section
4.02(A)(d), 4.02(A)(e) or 4.02(A)(f) (but not as a reduction to the amount of
Scheduled Repayments pursuant to another provision of this Agreement) or (y)
made as a voluntary prepayment pursuant to Section 4.01 with internally
generated funds (but in the case of a voluntary prepayment of Revolving Loans or
Swingline Loans, only to the extent accompanied by a voluntary reduction to the
Total Revolving Loan Commitment)) during such period and (iii) the increase, if
any, in Adjusted Consolidated Working Capital from the first day to the last day
of such period.
"Excess Cash Payment Date" shall mean the date occurring 120
days after the last day of each fiscal year of the Borrower, beginning with the
fiscal year of the Borrower ending December 31, 2000.
"Excess Cash Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Existing Indebtedness" shall have the meaning provided in
Section 6.19.
"Existing Indebtedness Agreements" shall have the meaning
provided in Section 5.01(q).
"Existing Letters of Credit" shall mean the letters of credit
of the Borrower outstanding on the Effective Date.
"Facing Fee" shall have the meaning provided in Section
3.01(b).
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by 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 which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"First Preferred Vessel Value" shall have the meaning provided
in Section 8.09.
"Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of (x) Consolidated EBITDA for such period plus (i) $20 million for the
period ending December 31, 2000, (ii) $15 million for the period ending March
31, 2001 and (iii) $10 million for each period ending on the last day of each
fiscal quarter thereafter to (y) Consolidated Fixed Charges for such period.
"Foreign Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by a foreign
nation (i.e., nations other than the United States or any agency or
instrumentality thereof), provided that the full faith and credit of such nation
is pledged in support thereof having maturities of not more than one year from
such date of acquisition, (ii) time deposits and certificates of deposit of any
foreign commercial bank having, or which is the principal banking subsidiary of
a bank holding company organized under the laws of any foreign nation or any
state, province, district, or jurisdiction thereof, having capital, surplus and
undivided profits aggregating in excess of $200,000,000, with maturities of not
more than one year from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than 90 days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper issued by
any Person incorporated or organized in any foreign nation rated at least A-1 or
the equivalent thereof by Standard & Poor's Rating Services or at least P-1 or
the equivalent thereof of ▇▇▇▇▇'▇ Investors Service, Inc. and in each case
maturing not more than one year after the date of acquisition by such Person,
(v) investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (iv) above
and (vi) demand deposit accounts maintained in the ordinary course of business.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the Borrower
or any one or more of its Subsidiaries primarily for the benefit of employees of
the Borrower or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA or
the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the
Borrower which is not a Domestic Subsidiary.
"GAAP" shall have the meaning provided in Section 12.07(a).
"Governmental Authority" shall mean any government,
parliament, legislature, regulatory authority, agency, commission, tribunal,
department, commission, board, instrumentality, court, arbitration board or
arbitrator or other law, regulation or rule making entity (including a Minister
of the Crown) having or purporting to have jurisdiction on behalf of, or
pursuant to the laws of, any country in which any Credit Party is organized,
continued, amalgamated, merged or otherwise created or established or in which
any Credit Party carries on business or holds property, or any province,
territory, state, municipality, district or political subdivision of any such
country or of any such state, province or territory of such country.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," "dangerous goods," or
"pollutants," or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority under
Environmental Laws.
"Hedging Agreement" shall mean any interest rate protection
contracts, foreign exchange contracts, currency swap agreements, commodity
agreements or other similar agreements or arrangements designed to protect
against the fluctuations in interest rates or currency or commodity values.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all liabilities of the types
described in clauses (i), (ii), (iv), (v), (vi) and (vii) secured by any Lien on
any property owned by such Person (to the extent of the value of the respective
property), whether or not such liabilities have been assumed by such Person,
(iv) the aggregate amount required to be capitalized under leases under which
such Person is the lessee, (v) all Contingent Obligations of such Person (other
than Contingent Obligations arising from the guaranty by such Person of the
obligations of the Borrower and/or its Subsidiaries to the extent that such
guaranteed obligations do not constitute Indebtedness and are permitted
hereunder), (vi) all obligations of such Person to pay a specified purchase
price for goods or services, whether or not delivered or accepted, i.e.,
"take-or-pay" or other similar arrangements and (vii) all obligations of such
Person under Hedging Agreements, provided that Indebtedness shall not include
Trade Payables and accrued expenses, in each case arising in the ordinary course
of business.
"Insurance Assignments" shall have the meaning provided in
Section 5.01(n).
"Insurance Proceeds" shall have the meeting provided in
Section 4.02(A)(j).
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Issuing Lender" shall mean BTCo (or any affiliate of BTCo,
which shall include, without limitation Deutsche Bank AG, New York Branch) and
any Lender which at the request of the Borrower and with the consent of the
Administrative Agent agrees, in such Lender's sole discretion, to become an
Issuing Lender for the purpose of issuing Letters of Credit pursuant to Section
2. The sole Issuing Lender on the Effective Date is BTCo.
"LC Sublimit" shall have the meaning provided in Section
2.01(c).
"L/C Supportable Obligations" shall mean any obligations of
the Borrower and its Subsidiaries entered into in compliance with law and this
Agreement.
"Lender" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Lender" hereunder pursuant to
Sections 1.13 and 12.04(b).
"Lender Default" shall mean (i) the refusal (which has not
been retracted) of a Lender to make available its portion of any Borrowing or to
fund its portion of any unreimbursed payment under Section 2.03(c) or (ii) a
Lender having notified in writing the Borrower and/or the Administrative Agent
that it does not intend to comply with its obligations under Sections 1.01 or
2.03 or having otherwise repudiated its Commitment.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate of the Stated Amount of each outstanding Letter of
Credit in respect of which the Termination Date has not occurred and (ii) the
aggregate amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, for any period, the ratio of (i)
Indebtedness for borrowed money and reimbursement obligations in respect of
letters of credit (including Letters of Credit) on the last day of such period
to (ii) Consolidated EBITDA for the Test Period most recently ended; provided
that Consolidated EBITDA for the Test Periods ending March 31, 2000, June 30,
2000 and September 30, 2000, Consolidated EBITDA shall be multiplied by 4, 2 and
4/3, respectively.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other applicable personal property security legislation in any
jurisdiction or any other similar recording or notice statute, and any lease
having substantially the same effect as any of the foregoing).
"Lightship Tanker Entities" shall mean Lightship Tanker
Holdings, L.L.C., Lightship Partners, L.P., Lightship Tankers I, L.L.C.,
Lightship Tankers II, L.L.C., Lightship Tankers III, L.L.C., Lightship Tankers
IV, L.L.C., Lightship Tankers V, L.L.C., Delaware Tanker Holdings I, Inc.,
Delaware Tanker Holdings II, Inc., Delaware Tanker Holdings III, Inc., Delaware
Tanker Holdings IV, Inc., Delaware Tanker Holdings V, Inc. and Tankers L.L.C.
"Loan" shall mean each Tranche A Term Loan, each Tranche B
Term Loan, each Tranche C Term Loan, each Revolving Loan, and each Swingline
Loan.
"Majority Lenders" of any Tranche shall mean the
Non-Defaulting Lenders which would constitute the Required Lenders under, and as
defined in, this Agreement if all outstanding Obligations of the other Tranches
under this Agreement were repaid in full and all Commitments with respect
thereto were terminated.
"Management Agreements" shall mean any material agreements
with members of, or with respect to, the management of the Borrower or any of
its Subsidiaries.
"Margin Stock" shall have the meaning provided in Regulation U
of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" shall mean a material adverse change
in the business, properties, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of the Borrower and its Subsidiaries
taken as a whole.
"Maturity Date" shall mean with respect to any Tranche of
Loans, the Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity
Date, the Tranche C Term Loan Maturity Date, the Revolving Loan Maturity Date as
the case may be.
"Maximum Swingline Amount" shall mean $5,000,000.
"Mortgaged Vessels" shall have the meaning provided in Section
5.01(l), and shall include any Vessels which become subject to a Vessel Mortgage
in accordance with Section 7.08.
"Minimum Borrowing Amount" shall mean (i) for Term Loans and
Revolving Loans maintained as Base Rate Loans, $2,500,000, (ii) for Term Loans
and Revolving Loans maintained as Eurodollar Loans, $5,000,000 and (iii) for
Swingline Loans, $50,000.
"Net Sale Proceeds" shall mean for any sale, lease, transfer
or other disposition of assets of the Borrower or any of its Subsidiaries, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received by the Borrower or any of its Subsidiaries from such sale,
lease, transfer or other disposition, net of transaction costs (including,
without limitation, any underwriting, brokerage or other customary selling
commissions, taxes payable (or reasonably estimated to be payable) within one
year of the disposition and reasonable legal, advisory and other fees and
expenses, including title and recording expenses and reasonable expenses
incurred for preparing such assets for sale, associated therewith) and the
amount of such gross cash proceeds required to be used to repay any Indebtedness
(other than Indebtedness of the Lenders pursuant to this Agreement) which is
senior to the Indebtedness of the Lenders pursuant to this Agreement and secured
by the assets sold.
"Non-Defaulting Lender" shall mean and include each Lender
other than a Defaulting Lender.
"Note" shall mean each Tranche A Term Note, each Tranche B
Term Note, each Tranche C Term Note, each Revolving Note and the Swingline Note.
"Note Subsidiary Guaranty" shall be the guaranty of the
obligations of the Borrower under the Senior Secured Second Lien Notes as set
forth in the Senior Secured Second Lien Documents.
"Notice of Borrowing" shall have the meaning provided in
Section 1.02(a).
"Notice of Conversion/Continuation" shall have the meaning
provided in Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent shown opposite its name on the signature pages hereof, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender
pursuant to the terms of this Agreement or any other Credit Document.
"Participant" shall have the meaning provided in Section
2.03(a).
"Payment Office" shall mean the office of BTCo located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or such other office as the Administrative
Agent may designate to the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA or any successor thereto.
"Permitted Existing Liens" shall have the meaning provided in
Section 8.01(i).
"Permitted Liens" shall have the meaning provided in Section
8.01.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any pension plan, as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of), the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, a Subsidiary of the Borrower or
an ERISA Affiliate maintained, contributed or had an obligation to contribute to
such plan.
"Plan Effective Date" shall mean the "Effective Date" under
and as defined in the Reorganization Plan.
"Pledge Agreement" shall have the meaning provided in Section
5.01(k), and shall include any pledge agreement entered into in accordance with
Section 7.08.
"Prime Lending Rate" shall mean the per annum rate of interest
which BTCo announces from time to time as its prime lending rate, the Prime
Lending Rate to change when and as such prime lending rate changes. The Prime
Lending Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. The Administrative Agent may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Proceeds" shall have the meaning provided in the Uniform
Commercial Code as in effect in the State of New York on the date hereof or
under other relevant law and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Collateral Agent or the Borrower from time to time with respect
to any of the Collateral, (ii) any and all payments (in any form whatsoever)
made or due and payable to the Borrower from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Projections" shall mean the projections of the Borrower dated
December 15, 1999 and delivered to the Lenders prior to the Effective Date.
"Proportionate Share" shall mean, with respect to any Lender,
a fraction (expressed as a percentage), the numerator of which shall be the
amount of such Lender's Revolving Loan Commitment, and the denominator of which
shall be the Total Revolving Commitment, or, if the Total Revolving Loan
Commitments are terminated, a fraction the numerator of which shall be the
amount of such Lender's outstanding Revolving Loans and the denominator of which
shall be the aggregate amount of then outstanding Revolving Loans, of all the
Lenders.
"Quarterly Payment Date" shall mean the last Business Day of
April, July, October and January occurring after the Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as same may be amended from time to time 42 USC.ss.6901 et seq.
"Real Property" shall mean all of the right, title and
interest of any Person in and to land, improvements and fixtures, including
leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any
of its Subsidiaries of any cash insurance proceeds or condemnation award payable
(i) by reason of theft, loss, physical destruction or damage, condemnation
action or conveyance in lieu thereof or any other similar event with respect to
any property or assets of the Borrower or any of its Subsidiaries, (ii) under
any policy of insurance required to be maintained under Section 7.03 or (iii) by
any condemning authority (or any authority receiving a conveyance in lieu of
condemning the subject property).
"Register" shall have the meaning provided in Section 12.14.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing or migration into the environment.
"Released Creditors" shall mean and include all creditors
holding any claims relating to Indebtedness or preferred stock or otherwise of
the Borrower or its Subsidiaries (or their predecessors in interest) which are
repaid, converted into equity, cancelled or extinguished in connection with the
consummation of the Reorganization Plan.
"Reorganization Plan" shall mean the Plan of Reorganization in
the form of the Debtors' First Amended Joint Plan of Reorganization under
Chapter 11 of the Bankruptcy Code, dated November 1, 1999, and all exhibits and
annexes thereto, as modified by the Confirmation Order.
"Replaced Lender" shall have the meaning provided in Section
1.13.
"Replacement Lender" shall have the meaning provided in
Section 1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
"Required Lenders" at any time shall mean Non-Defaulting
Lenders whose outstanding Term Loans and Revolving Loan Commitments (or after
the termination thereof, outstanding Revolving Loans, and Proportionate Share of
outstanding Swingline Loans and Letters of Credit Outstandings) represent an
amount greater than 50% of the sum of all outstanding Term Loans of
Non-Defaulting Lenders and the Adjusted Total Revolving Loan Commitment (or, if
the Adjusted Total Revolving Loan Commitment has been terminated, of the
Adjusted Total Revolving Loan Commitment as in effect immediately prior to such
termination).
"Responsible Officer" shall mean the Chief Financial Officer,
the Chief Executive Officer (or any person having a similar capacity), any
senior vice-president, director of treasury and finance and any other officer
designated by the Chief Financial Officer of the Borrower acceptable to the
Administrative Agent.
"Returns" shall have the meaning provided in Section 6.09.
"Revolving Loan" shall have the meaning provided in Section
1.01(d).
"Revolving Loan Commitment" shall mean, for each Lender, the
amount set for the opposite such lender's name in Schedule I hereto directly
below the column entitled "Revolving Loan Commitment", as same may be reduced
from the time pursuant to Sections 3.02, 3.03, 4.02 and/or 9 or adjusted from
time to time as a result of assignments to or from such Lender pursuant to
Section 1.13 or 12.04(b).
"Revolving Loan Maturity Date" shall mean December 15, 2004.
"Revolving Note" shall have the meaning provided in Section
1.05(e).
"SEC" shall have the meaning provided in Section 7.01(d).
"Scheduled Repayments" shall mean Tranche A Scheduled
Repayments, Tranche B Scheduled Repayments, and Tranche C Scheduled Repayments.
"Second Preferred Mortgage" shall have the meaning provided in
Section 5.01(l).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b)(ii).
"Security Agreement" shall have the meaning provided in
Section 5.01(i), and shall include any security agreement entered into in
accordance with Section 7.08.
"Security Documents" shall mean all contracts, instruments and
other documents now or hereafter executed and delivered in connection with this
Agreement (including Section 7.08), pursuant to which liens and security
interests are granted to the Collateral Agent for the benefit of the Lenders,
including without limitation, each Vessel Mortgage, the Security Agreement, the
Insurance Assignments, and the Pledge Agreement.
"Senior Secured Second Lien Documents" shall mean all
documents and agreements evidencing or entered in connection with the issuance
of the Senior Secured Second Lien Notes, including the Senior Secured Second
Lien Indenture, the guaranty executed substantially in the form of exhibit E
thereto, and the Escrow Agreement, as the same may be modified, amended or
supplemented from time to time in accordance with the terms hereof or thereof.
"Senior Secured Second Lien Indenture" shall mean the
Indenture, dated December 15, 1999, between the Borrower and State Street Bank
and Trust Company of Connecticut, N.A., as Trustee as the same may be modified,
amended or supplemented from time to time in accordance with the terms hereof
and thereof.
"Senior Secured Second Lien Notes" shall mean the Borrower's
senior secured second lien notes, issued pursuant to the Senior Secured Second
Lien Indenture in accordance with Section 5.01(t), as the same may be modified,
supplemented or amended from time to time pursuant to the terms hereof and
thereof.
"Shareholder Agreements" shall mean all agreements entered
into by the Borrower or any of its Subsidiaries governing the terms and relative
rights of their capital stock.
"Standby Letters of Credit" shall have the meaning provided in
Section 2.01(a) of this Agreement.
"Stated Amount" of each Letter of Credit shall mean the
maximum amount available to be drawn thereunder, determined without regard to
whether any conditions to drawing could then be met, as such amount may be
reduced from time to time in accordance with the terms of such Letter of Credit
(determined without regard to whether any conditions to drawing could then be
met).
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any limited liability company,
partnership, association, joint venture or other entity in which such Person
and/or one or more Subsidiaries of such Person has more than a 50% equity
interest at the time. For purposes of this Agreement the Lightship Entities
shall not be considered Subsidiaries of the Borrower so long as their
liabilities and obligations are without recourse to, and are not and do not
become liabilities or obligations of, the Borrower and its other Subsidiaries.
"Subsidiary Guarantor" shall mean each direct and indirect
Subsidiary of the Borrower designated as "Subsidiary Guarantor" on Schedule II
hereto, and each new Subsidiary created or acquired in accordance with Section
7.08.
"Subsidiary Guaranty" shall have the meaning provided in
Section 5.01(j), and shall include any guaranty entered into in accordance with
Section 7.08.
"Swingline Expiry Date" shall mean the date which is two
Business days prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean BTCo.
"Swingline Loan" shall have the meaning provided in Section
1.01(e).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Syndication Date" shall mean that date upon which the
Administrative Agent determines (and notifies the Borrower) that the primary
syndication has been completed.
"Taxes" shall have the meaning provided in Section 4.04.
"Tax Sharing Agreements" shall mean all tax sharing, tax
allocation and other similar agreements entered into by the Borrower and/or any
of its Subsidiaries.
"Term Loan" shall mean each Tranche A Term Loan, each Tranche
B Term Loan and each Tranche C Term Loan.
"Term Loan Commitment" shall mean each Tranche A Term Loan
Commitment, each Tranche B Term Loan Commitment and each Tranche C Term Loan
Commitment, with the Term Loan Commitment of any Lender at any time to equal the
sum of its Tranche A Term Loan Commitment, Tranche B Term Loan Commitment and
each Tranche C Term Loan Commitment as then in effect.
"Termination Date" shall mean with respect to each Letter of
Credit (x) if no drawing is made thereunder, the final expiration date thereof
or such earlier date on which such Letter of Credit was cancelled and returned
to the respective Issuing Lender or (y) if a drawing or drawings are made
thereunder, the date of payment of the final drawing thereunder as provided by
the terms thereof.
"Test Period" shall mean (i) for the first three Test Periods
ending after the Effective Date, the periods beginning on January 1, 2000 and
ending on March 31, 2000, June 30, 2000 and September 30, 2000, respectively (in
each case taken as one accounting period) and (ii) for each Test Period ending
thereafter, the four consecutive fiscal quarters then ended (taken as one
accounting period).
"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Lenders (which on the Effective Date shall be
$225,000,000).
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Lenders (which on the
Effective Date shall be $25,000,000).
"Total Term Loan Commitment" shall mean, at any time, the sum
of the total Tranche A Term Loan Commitment, Total Tranche B Term Loan
Commitment and Total Tranche C Term Loan Commitment (which on the Effective Date
shall be $200,000,000).
"Total Tranche A Term Loan Commitment" shall mean, at any
time, the sum of the Tranche A Term Loan Commitments of each of the Lenders
(which on the Effective Date shall be $75,000,000).
"Total Tranche B Term Loan Commitment" shall mean, at any
time, the sum of the Tranche B Term Loan Commitments of each of the Lenders
(which on the Effective Date shall be $30,000,000).
"Total Tranche C Term Loan Commitment" shall mean, at any
time, the sum of the Tranche C Term Loan Commitments of each of the Lenders
(which on the Effective Date shall be $95,000,000).
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of the then Total Revolving Loan
Commitment, less the sum of the aggregate principal amount of Revolving Loans
and Swingline Loans then outstanding plus the then aggregate amount of Letter of
Credit Outstandings.
"Trade Letters of Credit" shall have the meaning provided in
Section 2.01(a) of this Agreement.
"Trade Payables" shall mean, as of any date of determination,
the accounts payable of the Borrower determined in accordance with generally
accepted accounting principles in favor of trade vendors.
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being four separate Tranches,
i.e., Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans and
Revolving Loans.
"Tranche A Scheduled Repayment" shall have the meaning
provided in Section 4.02(A)(d).
"Tranche A Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(A)(d).
"Tranche A Term Loan" shall have the meaning provided in
Section 1.01(a).
"Tranche A Term Loan Commitment" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto directly
below the column entitled "Tranche A Term Loan Commitment" as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 12.04(b).
"Tranche A Term Loan Maturity Date" shall mean December 15,
2004.
"Tranche A Term Note" shall have the meaning provided in
Section 1.03(a)
"Tranche B Scheduled Repayment" shall have the meaning
provided in Section 4.02(A)(e).
"Tranche B Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(A)(e).
"Tranche B Term Loan" shall have the meaning provided in
Section 1.01(b).
"Tranche B Term Loan Commitment" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto directly
below the column entitled "Tranche B Term Loan Commitment", as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 12.04(b).
"Tranche B Term Loan Maturity Date" shall mean December 15,
2005.
"Tranche B Term Note" shall have the meaning provided in
Section 1.05(a).
"Tranche C Scheduled Repayment" shall have the meaning
provided in Section 4.02(A)(f).
"Tranche C Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(A)(f).
"Tranche C Term Loan" shall have the meaning provided in
Section 1.01(c).
"Tranche C Term Loan Commitment" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto directly
below the column entitled "Trance C Term Loan Commitment", as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 12.04(b).
"Tranche C Term Loan Maturity Date" shall mean December 15,
2006.
"Tranche C Term Note" shall have the meaning provided in
Section 1.05(a).
"Type" shall mean any type of Loan determined with respect to
the interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar
Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the value of the accumulated plan benefits under the Plan
determined on a plan termination basis in accordance with actuarial assumptions
at such time consistent with those prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"United States" and "US" shall each mean the United States of
America.
"Unpaid Drawings" shall have the meaning provided in Section
2.04(a).
"Unutilized Revolving Loan Commitment" shall mean for each
Lender, at any time, the amount, if positive, equal to (x) such Lender's
Revolving Loan Commitment at such time less (y) the sum of (i) the aggregate
outstanding principal amount of all Revolving Loans made by such Lender and (ii)
such Lender's Proportionate Share of the Letter of Credit Outstandings at such
time that have not been converted to Revolving Loans.
"Unutilized Excess Cash Flow" shall mean for any period, the
Excess Cash Flow of the Borrower and its Subsidiaries in excess of the amount
required to be applied to repay Term Loans or reduce the Total Revolving Loan
Commitment pursuant to the terms of this Agreement.
"Vessel" shall mean, collectively, all vessels owned by the
Borrower and its Subsidiaries, and, individually, any of such vessels.
"Vessel Mortgages" shall have the meaning provided in Section
5.01(l), and shall include any vessel mortgages entered into in accordance with
Section 7.08.
"Waivable Repayment" shall have the meaning provided in
Section 4.02(B)(c).
"Warrants" shall have the meaning provided in Section
4.02(A)(h).
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation, 100% of whose capital stock (other than directors' qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any limited liability company, partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Working Capital Ratio" shall mean the ratio of Consolidated
Current Assets to Consolidated Current Liabilities.
"written" or "in writing" shall mean any form of written
communication or a communication by means of telex, telecopier or facsimile
device, telegraph or cable.
"Year 2000 Problem" shall mean any significant risk that
computer hardware or software used in the Borrower's or its respective
Subsidiaries' business or operations will not store and provide data input
information without creating an ambiguity as to the century.
10.02 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, any other Credit Document or any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in the Notes, any other Credit Document
and any certificate or other document made or delivered pursuant hereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
subsection 10.01 and accounting terms partly defined in subsection 10.01 to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
Section 11. The Administrative Agent.
11.01 Appointment. (a) Each Lender hereby designates BTCo as
Administrative Agent (for purposes of this Section 11, the term "Administrative
Agent" shall include BTCo as Administrative Agent, and as Collateral Agent).
Each Lender hereby irrevocably authorizes, and each holder of any Note or
participation in any Letter of Credit by the acceptance of a Note or
participation shall be deemed irrevocably to authorize, the Administrative Agent
to take such action on its behalf under the provisions of this Agreement and the
Notes and any other instruments and agreements referred to herein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
The Administrative Agent may perform any of their duties hereunder by or through
its agents or employees.
(b) The provisions of this Section 11 are solely for the
benefit of the Administrative Agent, and the Lenders, and neither the Borrower
nor any of the Borrower's Subsidiaries shall have any rights as a third party
beneficiary of any of the provisions hereof (other than Sections 11.09. In
performing its functions and duties under this Agreement, the Administrative
Agent and the Collateral Agent shall act solely as agents of the Lenders and do
not assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for the Borrower or any of the
Borrower's Subsidiaries.
11.02 Nature of Duties of Administrative Agent. The
Administrative Agent shall not have duties or responsibilities except those
expressly set forth in this Agreement and the other Credit Documents. Neither
the Administrative Agent, nor any of its officers, directors, employees or
agents shall be liable for any action taken or omitted by it as such hereunder
or in connection herewith, unless caused by its or their gross negligence or
willful misconduct. The duties of the Administrative Agent shall be mechanical
and administrative in nature; the Administrative Agent shall not have by reason
of this Agreement or the other Credit Documents a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or the other Credit
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations in respect of this
Agreement or the other Credit Documents except as expressly set forth herein or
therein.
11.03 Lack of Reliance on Administrative Agent. (a)
Independently and without reliance upon the Administrative Agent, each Lender,
to the extent it deems appropriate, has made and shall continue to make (i) its
own independent investigation of the financial or other condition and affairs of
the Borrower and its Subsidiaries in connection with the taking or not taking of
any action in connection herewith and (ii) its own appraisal of the
creditworthiness of the Borrower and its Subsidiaries, and, except as expressly
provided in this Agreement, the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto, whether coming into
its possession before the making of the Revolving Loans or at any time or times
thereafter.
(b) The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this Agreement or the
other Credit Documents or the financial or other condition of the Borrower or
any of its Subsidiaries. The Administrative Agent shall not be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or the other Credit Documents, or the
financial condition of the Borrower or any of Borrower's Subsidiaries, or the
existence or possible existence of any Default or Event of Default, unless
specifically requested to do so in writing by any Lender.
11.04 Certain Rights of the Administrative Agent. The
Administrative Agent shall have the right to request instructions from the
Required Lenders at any time. If the Administrative Agent shall request
instructions from the Required Lenders with respect to any act or action
(including the failure to act) in connection with this Agreement or the other
Credit Documents, the Administrative Agent shall be entitled to refrain from
such act or taking such action unless and until the Administrative Agent shall
have received instructions from the Required Lenders, and the Administrative
Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
11.05 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, statement, certificate, telex, teletype
or telecopier message, cablegram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper person. The Administrative
Agent may consult with legal counsel (including counsel for the Borrower with
the consent of the Borrower and with respect to matters concerning the Borrower
and its Subsidiaries), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants or
experts.
11.06 Indemnification of Administrative Agent. To the extent
the Administrative Agent and its advisors are not reimbursed and indemnified by
the Borrower, each Lender will reimburse and indemnify the Administrative Agent
and its advisors in proportion to its respective outstandings credit expense,
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including reasonable
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever (including all reasonable expenses) which may be imposed on, incurred
by or asserted against the Administrative Agent in performing its duties
hereunder, in any way relating to or arising out of this Agreement or for any
payments made by the Administrative Agent to its advisors; provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. The agreements contained in this Section shall survive any
termination of this Agreement and the other Credit Documents and the payment in
full of the Obligations.
11.07 The Administrative Agent in Its Individual Capacity.
With respect to its obligation to lend under this Agreement, the Loans made by
them and the Notes issued to it, and its participation in Letters of Credit
issued hereunder, the Administrative Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Note or participation interests and
may exercise the same as though it was not performing the duties specified
herein; and the terms "Lenders," "Required Lenders," "holders of Revolving
Notes," or any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent may accept deposits from, lend money to, acquire equity
interests in, and generally engage in any kind of banking, trust, financial
advisory or other business with the Borrower or any Affiliate of the Borrower as
if it were not performing the duties specified herein, and may accept fees and
other consideration from the Borrower for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
11.08 Holders of Notes. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
11.09 Successor Administrative Agent. (a) The Administrative
Agent may, upon five Business Days' notice to the Lenders and the Borrowers,
resign at any time (effective pursuant to the following provisions of this
Section 11.09) by giving written notice thereof to the Lenders and the Borrower.
Such resignation of the Administrative Agent shall also operate as a resignation
as an Issuing Lender. Upon any such resignation, the Required Lenders shall have
the right, upon five days' notice and approval by the Borrower (which approval
shall not be unreasonably withheld or delayed), to appoint a successor
Administrative Agent (which shall also serve as a successor Issuing Lender). If
no successor Administrative Agent (i) shall have been so appointed by the
Required Lenders and (ii) shall have accepted such appointment, within thirty
days after the retiring Administrative Agent's giving of notice of resignation,
then, upon five days' notice and approval by the Borrower (which approval shall
not be unreasonably withheld or delayed), the retiring Administrative Agent, on
behalf of the Lenders, may appoint a successor Administrative Agent, which shall
also serve as a successor Issuing Lender. In the event that no successor
Administrative Agent is appointed pursuant to the foregoing provisions, the
Administrative Agent's resignation shall become effective on the date which is
forty-five days after the retiring Administrative Agent's giving of notice of
resignation, and the Required Lenders shall perform the duties of the
Administrative Agent hereunder.
(b) Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Section 11
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
11.10 Actions with Respect to Defaults. In addition to the
Administrative Agent's right to take actions on its own accord as permitted
under this Agreement, the Administrative Agent shall take such action with
respect to an Event of Default as shall be directed by the Required Lenders;
provided that until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Event of
Default as it shall deem advisable and in the best interests of the Lenders.
11.11 Delivery of Information. The Administrative Agent shall
not be required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by the
Administrative Agent from the Borrowers, any Subsidiary, the Required Lenders,
any Lender or any other Person under or in connection with this Agreement or any
other Credit Document except (i) as specifically provided in this Agreement or
any other Credit Document and (ii) as specifically requested from time to time
in writing by any Lender with respect to a specific document, instrument, notice
or other written communication received by and in the possession of the
Administrative Agent at the time of receipt of such request and then only in
accordance with such specific request.
Section 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White &
Case LLP and local counsel) in connection with the preparation, execution,
delivery and administration of this Agreement and the other Credit Documents and
the documents and instruments referred to herein and therein and any amendment,
waiver or consent relating hereto or thereto, of the Administrative Agent in
connection with its syndication efforts with respect to this Agreement and of
the Administrative Agent and, following and during the continuation of an Event
of Default, each of the Lenders in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Administrative Agent and, following
and during the continuation of an Event of Default, for each of the Lenders)
which expenses shall include, without being limited to the cost of record
searches, the reasonable fees and expenses of attorneys and paralegals, all
reasonable costs and expenses incurred by the Administrative Agent in opening
bank accounts, depositing checks, electronically or otherwise receiving and
transferring funds, and any charges imposed on the Administrative Agent due to
insufficient funds of deposited checks and the standard fees of the
Administrative Agent relating thereto, collateral examination fees and expenses,
reasonable fees and expenses of accountants, appraisers or other consultants,
experts or advisors employed or retained by the Administrative Agent; (ii) pay
and hold each of the Lenders harmless from and against any and all present and
future stamp, excise and other similar taxes with respect to the foregoing
matters and save each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Lender) to pay such taxes; (iii) pay all
reasonable fees, expenses and disbursements of any Lender or Agent and their
counsel incurred in connection with the filing and recordation of the Collateral
Agent's liens and security interests pursuant to the Security Documents and with
UCC searches and maritime registry searches and obtaining vessel abstracts and
similar documentation from the Coast Guard National Vessel Documentation Center
and any other maritime authority; and (iv) indemnify the Administrative Agent,
and each Lender, and each of their respective officers, directors, employees,
representatives (each, an "Indemnitee") from and hold each of them harmless
against any and all liabilities, obligations (including removal or remedial
actions), losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' and consultants'
fees and disbursements) (all of such liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses and disbursements
collectively, the "Indemnified Amounts") incurred by, imposed on or assessed
against any of them as a result of, or arising out of, or in any way related to,
or by reason of, (a) any investigation, litigation or other proceeding (whether
or not the Administrative Agent, or any Lender is a party thereto) related to
the entering into and/or performance of this Agreement or any other Credit
Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of any transactions contemplated herein or in any
other Credit Document or the exercise of any of their rights or remedies
provided herein or in the other Credit Documents, or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on
the surface or subsurface of any Real Property owned or at any time operated by
the Borrower or any of its Subsidiaries, the generation, storage,
transportation, handling or disposal of Hazardous Materials at any location,
whether or not owned or operated by the Borrower or any of its Subsidiaries, the
non-compliance of any Real Property with foreign, federal, state, provincial and
local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to any Real Property, or any Environmental Claim asserted
against the Borrower, any of its Subsidiaries or any Real Property owned or at
any time operated by the Borrower or any of its Subsidiaries, including, in each
case, without limitation, the reasonable fees and disbursements of counsel and
other consultants incurred in connection with any such investigation, litigation
or other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified); provided, however, that the
Borrower shall not have any obligation to any Indemnitee for any Indemnified
Amounts to the extent such Indemnified Amounts resulted from the gross
negligence or willful misconduct of such Indemnitee as determined by a court of
competent jurisdiction. To the extent that the undertaking to indemnify, pay or
hold harmless the Administrative Agent or any Lender set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible under
applicable law.
12.02 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.01 and 12.06 shall,
subject to Section 12.15 (to the extent applicable), survive the execution and
delivery of this Agreement and the Notes and the making and repayment of the
Loans.
12.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to the Borrower, at
the Borrower's address specified opposite its signature below; if to any Lender,
at its address specified opposite its signature below; and if to the
Administrative Agent, at its Notice Office; or, as to any Credit Party or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties hereto and, as to each Lender, at such
other address as shall be designated by such Lender in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails with first-class
postage prepaid, delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier, except that notices
and communications to the Administrative Agent or the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.
12.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Credit Party
may assign or transfer any of its rights, obligations or interest hereunder or
under any Credit Document without the prior written consent of the Lenders. Each
Lender may at any time grant participations in any of its rights hereunder or
under any of the Notes to another financial institution, including, without
limitation, investment funds, provided that in the case of any such
participation, the participant shall not have any rights under this Agreement or
any of the other Credit Documents (the participant's rights against such Lender
in respect of such participation to be those set forth in the agreement executed
by such Lender in favor of the participant relating thereto) and all amounts
payable by the Borrower hereunder shall be determined as if such Lender had not
sold such participation, except that the participant shall be entitled to the
benefits of Sections 1.10, 2.04 and 4.04 to the extent that such Lender would be
entitled to such benefits if the participation had not been entered into or
sold, and, provided further, that no Lender shall transfer, grant or assign any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of the applicability of any
post-default increase in interest rates), or reduce the principal amount thereof
(it being understood that any amendment or modification to the financial
definitions in this Agreement shall not constitute a reduction in the rate of
interest for purposes of this clause (i)), or increase such participant's
participating interest in any Commitment over the amount thereof then in effect
(it being understood that (x) a waiver of any Default or Event of Default or of
a mandatory prepayment, shall not constitute a change in the terms of any
Commitment and (y) an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof), (ii) release all or substantially all of the
Collateral which support the Loans in which such participant is participating
(except as expressly permitted in any Credit Documents), (iii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement, (iv) reduce the percentage specified in the definition of
Required Lenders or (v) amend, modify or waive any provision of this Section
12.04.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may, with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed), (x) assign all or a portion of its Revolving Loan Commitments (and
related outstanding obligations hereunder) and/or its outstanding Term Loans to
(i) its parent company or individual parent and/or any Affiliate of such Lender
which is at least 50% owned by such Lender, its parent company or individual
parent or (ii) to one or more Lenders or (iii) in the case of any Lender that is
a fund that invests primarily in bank loans, any other fund that invests
primarily in bank loans and is managed or advised by the same investment advisor
of such Lender or by an Affiliate of such investment advisor or (y) assign all,
or if less than all, a portion equal to at least $5,000,000 in the aggregate for
the assigning Lender or assigning Lenders, of such Revolving Loan Commitment
(and related outstandings) and outstanding principal amount of Term Loans
hereunder to one or more Eligible Transferees, treating any fund that invests in
bank loans and any other fund that invests in bank loans and is managed or
advised by the same investment advisor of such fund or by an Affiliate of such
investment advisor as a single Eligible Transferee, each of which assignees
shall become a party to this Agreement as a Lender by execution of an Assignment
and Assumption Agreement, provided that, (i) at such time Schedule I shall be
deemed modified to reflect the Commitments (and/or outstanding Term Loans, as
the case may be) of such new Lender and of the existing Lenders, (ii) upon
surrender of the old Notes, new Notes will be issued, at the Borrower's expense,
to such new Lender and to the assigning Lender, such new Notes to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments (and/or
outstanding Term Loans, as the case may be), (iii) the Administrative Agent
shall receive at the time of each such assignment from the assigning or assignee
Lender other than an assignment to an affiliate of such Lender, the payment of a
non-refundable assignment fee of $3,500 and (iv) in connection with any
assignment described in clause (y) above, so long as no Event of Default exists
at the time of such assignment, the consent of the Borrower shall be required
(which consent shall not be unreasonably withheld or delayed) and, provided
further, that such transfer or assignment will not be effective until recorded
by the Administrative Agent on the Register pursuant to Section 12.14 hereof. To
the extent of any assignment pursuant to this Section 12.04(b), the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments. At the time of each assignment pursuant to this Section
12.04(b) to a Person which is not already a Lender hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for federal income tax purposes, the respective assignee Lender shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Lender's Commitments and related outstanding Obligations pursuant
to Section 1.13 or this Section 12.04(b) would, at the time of such assignment,
result in increased costs under Sections 1.10, 1.11, 2.05 or 4.04 from those
being charged by the respective assigning Lender prior to such assignment, then
the Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its rights under this Agreement and/or its Loans and/or
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank and, with the consent of the
Administrative Agent, any Lender which is a fund may pledge all or any portion
of its Notes or Loans to a trustee for the benefit of investors and in support
of its obligation to such investors).
12.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent, any Issuing Lender or any Lender or any
holder of a Note in exercising any right, power or privilege hereunder or under
any other Credit Document and no course of dealing between any Credit Party and
the Administrative Agent, any Issuing Lender or any Lender or the holder of any
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights, powers and
remedies herein or in any other Credit Document expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, any Issuing Lender or any Lender or the holder of any Note
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent, any Issuing Lender, the Lenders or the holder of any Note
to any other or further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrowers in respect of any Obligations
of the Borrower hereunder or under any Credit Document, it shall distribute such
payment to the Lenders (other than any Lender which has consented in writing to
waive its pro rata share of any such payment) pro rata based upon their
respective shares, if any, of the Obligations with respect to which such payment
was received.
(b) Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such Obligation then owed and due
to such Lender bears to the total of such Obligation then owed and due to all of
the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Credit Party to
such Lenders in such amount as shall result in a proportional participation by
all the Lenders in such amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 12.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, different
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
12.07 Calculations; Computations. (a) The financial statements
to be furnished to the Administrative Agent on behalf of the Lenders pursuant
hereto shall be made and prepared in accordance with generally accepted
accounting policies and principles in the United States consistently applied
throughout the periods involved (except as set forth in the notes thereto or as
otherwise disclosed in writing by the Borrower to the Administrative Agent on
behalf of the Lenders) (with the foregoing generally accepted accounting
principles herein called "GAAP"). All calculations and computations determining
compliance with Section 8 shall utilize accounting principles and policies in
conformity with those used to prepare the financial statements referred to in
Section 6.06(a).
(b) All computations of interest, Commitment Commission and
Fees hereunder shall be made by the Administrative Agent on the basis of a year
of 360 days or 365 or 366 days, as the case may be, in the case of interest on
Base Rate Loans for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest,
Commitment Commission or Fees are payable.
(c) All interest payments to be made under this Agreement will
be paid without allowance or deduction for deemed re-investment or otherwise,
both before and after maturity and before and after default and/or judgment, if
any, until payment of the amount on which such interest is accruing, and
interest will accrue on overdue interest, if any.
12.08 Governing Law. This Agreement and the other Credit
Documents and the rights and obligations of the Borrower hereunder and
thereunder shall be construed in accordance with and be governed by the law of
the State of New York.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
12.10 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
12.11 Amendment or Waiver. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Party thereto and the Required
Lenders; provided, however, that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting
Lender) with Obligations being directly affected thereby, (i) extend the final
scheduled maturity of any Loan or Note or extend the stated maturity of any
Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon (except in connection
with a waiver of applicability of any post-default increase in interest rates),
or reduce the principal amount thereof (except to the extent repaid in cash),
(ii) amend, modify or waive any provision of this Section 12.11 (it being
understood that, with the consent of the Required Lenders, additional extensions
of credit pursuant to this Agreement may be provided with similar protections to
those set forth in this Section 12.11 on substantially the same basis as the
Term Loans and Revolving Loan Commitment are included on the Effective Date),
(iii) reduce the percentage specified in the definition of Required Lenders (it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Effective Date), (iv) release all or substantially all of the Collateral from
the security interests and Liens created pursuant to the Credit Documents
(except as set forth in the Credit Documents), or (v) consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement; provided further, that no such change, waiver, discharge or
termination shall (v) increase the Commitments of any Lender over the amount
thereof then in effect without the consent of such Lender (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment, shall not
constitute an increase of the Commitment of any Lender, and that increase in the
available portion of any Commitment of any Lender shall not constitute an
increase in the Commitment of such Lender), (w) without the consent of the
Issuing Lender, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit or without the consent
of the Swingline Lender, alter its rights or obligations in respect of Swingline
Loans, (x) without the consent of the Administrative Agent, amend, modify or
waive any provision of Section 11 as same applies to such Administrative Agent
or any other provision as same relates to the rights or obligations of such
Administrative Agent, (y) without the consent of the Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent, (z) without the consent of the Required Lenders of each
Tranche which is being allocated a lesser prepayment, repayment or commitment
reduction as a result of the actions described below (or without the consent of
the Majority Lenders of each Tranche in the case of an amendment to the
definition of Majority Lenders), amend the definition of Majority Lenders (it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Majority Lenders on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Effective Date) or alter the required application of any prepayments or
repayments (or commitment reductions), as between the various Tranches, pursuant
to Section 4.01 or 4.02 (excluding Sections 4.02(A)(d), (e) and (f)) (although
(x) the Required Lenders may waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the relative application, as
amongst the various Tranches, of any such prepayment, repayment or commitment
reduction which is still required to be made is not altered and (y) if
additional Tranches of Term Loans are extended after the Effective Date with the
consent of the Required Lenders as required above, such Tranches may be included
on a pro rata basis (as is originally done with the Tranche A Term Loans,
Tranche B Term Loans and Tranche C Term Loans) in the various prepayments or
repayments required pursuant to Sections 4.01 and 4.02 (excluding Sections
4.02(A)(d), (e) and (f) and any section providing Scheduled Repayments for any
new Tranche of Term Loans). Notwithstanding anything to the contrary contained
herein, the modifications contemplated by Section 12.04, to the extent needed to
make new Lenders party to this Agreement, shall be permitted in accordance with
the terms thereof. All amendments effected in compliance with this Section 12.11
shall be effective and enforceable against all parties hereto.
(b) If, in connection with any proposed change, waiver,
discharge or termination to or of any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 12.11(a), the consent of the Required Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not
obtained, then the Borrower shall have the right, so long as all non-consenting
Lenders whose individual consent is required are treated as described below, to
replace each such non-consenting Lender or Lenders with one or more Replacement
Lenders pursuant to Section 1.13 so long as at the time of such replacement,
each such Replacement Lender consents to the proposed change, waiver, discharge
or termination, provided that in any event the Borrower shall not have the right
to replace a Lender, terminate its Revolving Loan Commitments or repay its Loans
solely as a result of the exercise of such Lender's right pursuant to clause (i)
of Section 12.11(a) not to have its Commitment increased (and the withholding of
any required consent by such Lender).
12.12 Domicile of Loans. Each Lender may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Lender. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 12.12 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11, 2.05
or 4.04 from those being charged by the respective Lender prior to such
transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes giving rise to such increased
costs after (and not reasonably expected to occur after) the date of the
respective transfer).
12.13 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 12.13, each Lender agrees that it will use its best efforts
not to disclose without the prior consent of the Borrower (other than to its
employees, auditors, advisors or counsel or to another Lender if the Lender or
such Lender's holding or parent company in its sole discretion determines that
any such party should have access to such information, provided such Persons
shall be subject to the provisions of this Section 12.13 to the same extent as
such Lender) any information with respect to the Borrower or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Credit Document and which is designated by the Borrower to the
Lenders in writing as confidential (collectively, the "Confidential Material"),
provided that any Lender may disclose any Confidential Material (a) as may be
required in any report, statement or testimony submitted to any municipal,
state, provincial or federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States, or elsewhere) or their successors, (b) as may be required in respect to
any summons or subpoena or in connection with any litigation, (c) in order to
comply with any law, order, regulation or ruling applicable to such Lender, (d)
to the Administrative Agent or the Collateral Agent and (e) to any prospective
or actual transferee or participant in connection with any contemplated transfer
of any of the Notes or Commitments or any interest therein by such Lender,
provided that such prospective transferee or participant executes a
Confidentiality Agreement with such Lender containing provisions substantially
the same as to those contained in this Section.
(b) Each Credit Party hereby acknowledges and agrees that each
Lender may share with any of its Affiliates any Confidential Material related to
any Credit Party (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Credit Parties, provided such
Affiliate shall be subject to the provisions of this Section 12.13 to the same
extent as such Lender).
12.14 Registry. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 12.14, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Lenders, the Loans made
by each of the Lenders and each repayment in respect of the principal amount of
the Loans of each Lender. Failure to make any such recordation, or any error in
such recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans shall
remain owing to the transferor. The registration of assignment or transfer of
all or part of any Commitments and Loans shall be recorded by the Administrative
Agent on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to
Section 12.04(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and registration
of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender. The Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 12.14.
12.15 Limitation on Additional Amounts, etc. Notwithstanding
anything to the contrary contained in Sections 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Lender gives notice to the Borrowers that they are obligated
to pay an amount under any such Section within one year after the later of (x)
the date the Lender incurs the respective increased costs, Taxes, loss, expense
or liability, reduction in amounts received or receivable or reduction in return
on capital or (y) the date such Lender has actual knowledge of its expense or
liability, reductions in amounts received or receivable or reduction in return
on capital, then such Lender shall only be entitled to be compensated for such
amount by the Borrower pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the
case may be, to the extent the costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital
are incurred or suffered on or after the date which occurs one year prior to
such Lender giving notice to the Borrowers that they are obligated to pay the
respective amounts pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the
case may be. This Section 12.15 shall have no applicability to any Section of
this Agreement other than said Sections 1.10, 1.11, 2.05 or 4.04.
12.16 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each
Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Lender (including, without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of the Borrower but in any event excluding assets held
in trust for any such Person against and on account of the Obligations and
liabilities of the Borrower to such Lender under this Agreement or under any of
the other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Lender pursuant to Section 12.06(b), and all other
claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such
Lender shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
HVIDE MARINE INCORPORATED
BANKERS TRUST COMPANY
MEESPIERSON CAPITAL CORP.