FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of April 13, 2000 among HVIDE
MARINE INCORPORATED, a corporation existing under the laws of Delaware, as
borrower (the "Borrower"), the financial institutions party to the Credit
Agreement referred to below (the "Lenders") and Bankers Trust Company ("BTCo"),
as administrative agent (in such capacity, the "Administrative Agent"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties
to a Credit Agreement, dated as of December 15, 1999 among the Borrower, the
Administrative Agent, the Lenders, Deutsche Bank Securities, Inc., as lead
arranger and book manager, MeesPierson Capital Corp., as syndication agent and
co-arranger, GMAC Commercial Credit and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated as co-documentation agents (the "Credit
Agreement");
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement; and
WHEREAS, subject to the terms and conditions of this Amendment, the Lenders
are willing to grant such amendments.
NOW, THEREFORE, it is agreed:
1. Section 1.01(d) of the Credit Agreement is hereby amended
by (i) deleting the word "and" appearing at the end of sub-clause (ii) and
inserting a semi-colon in lieu thereof, (ii) deleting the period appearing at
the end of sub-clause (iii) and inserting the word "and" in lieu thereof and
(iii) inserting the following new sub-clause (iv) immediately after sub-clause
(iii) appearing therein:
"(iv) shall not exceed $17,500,000 without the consent of the
Required Lenders.
2. Section 4.02(A)(g) of the Credit Agreement is hereby
amended by inserting the text "(other than, except with respect to Permitted
Scheduled Asset Sales, (i) the sale or other disposition of the Lightship Tanker
Entities as provided in Section 8.02(xiii), provided, that the Lenders receive
100% of the first $15,000,000, 50% of the next $10,000,000, and 100% of any
proceeds in excess thereof, of the proceeds from such sale, (ii)" in lieu of the
text "(other than (i)" appearing therein, inserting the text "disposition,
(iii)" in lieu of the text "disposition, (ii)" appearing therein and inserting
the text "Borrower and (iv)" in lieu of the text "Borrower and (iii)" appearing
therein.
3. Section 6.25 of the Credit Agreement is hereby amended by
(i) deleting the text "60 days after the Effective Date" appearing therein and
inserting the text "45 days after the First Amendment Effective Date" in lieu
thereof and (ii) inserting the text "or established such an account with a
banking institution and in a manner satisfactory to the Administrative Agent"
immediately after the text "at BTCo" appearing therein.
4. Section 7.14 of the Credit Agreement is hereby amended by
(i) deleting the text "60 days after the Effective Date" appearing therein and
inserting the text "45 days after the First Amendment Effective Date" in lieu
thereof.
5. Section 8.02(x) of the Credit Agreement is hereby amended
by (i) deleting the text "$20 million" appearing therein and inserting the text
"$5 million" in lieu thereof, (ii) deleting the text "and" appearing at the end
thereof and (iii) inserting the following text "(other than the Permitted
Scheduled Asset Sales)" immediately after the text "sales or dispositions of
assets" appearing therein.
6. Section 8.02 of the Credit Agreement is further amended by
(i) deleting the period appearing at the end of sub-clause (xi) appearing
therein and inserting a semi-colon in lieu thereof and (ii) inserting the
following new sub-clauses (xii) and (xiii) immediately after sub-clause (xi)
appearing therein:
"(xii) sale or disposition of any assets described on Schedule
X; 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 100% of the consideration
therefor shall be in cash and (iii) the proceeds thereof shall be applied as
required under Section 4.02(A)(g) (such sales, the "Permitted Scheduled Asset
Sales") and
"(xiii) sale or disposition of all or a portion of the
Lightship Tanker Entities on terms satisfactory to the Administrative Agent."
7. Section 8.08 of the Credit Agreement is hereby amended by
(i) inserting the text "(a)" immediately prior to the text "The Borrower will"
appearing therein, (ii) deleting the text appearing in the column entitled
"Minimum EBITDA" immediately prior to the text "$60 million" appearing therein,
and inserting the following text in lieu thereof;
"$8.0 million
$17.0 million
$27.0 million
$37.0 million
$43.0 million" and
(iii) inserting the following sub-clause (b) immediately after
the columns appearing therein:
"(b) The Borrower will (i) not permit Consolidated EBITDA to
be less than a total of $30,000,000 for the three fiscal quarters ending on
September 30, 2000 or a total of $44,000,000 for the four fiscal quarters ending
on December 31, 2000 and (ii) make repayments sufficient to reduce the aggregate
principal amount of Term Loans outstanding by $10,000,000 before June 30, 2000,
$35,000,000 before August 31, 2000 (such amount to be reduced by the amount
committed as consideration for the sale or disposition of the Lightship Tanker
Entities as permitted in Section 8.02(xiii), provided that the Lenders receive
the proceeds from such sale or disposition in accordance with Section
4.02(A)(g)(i) within 60 days of such proceeds being so committed) and
$60,000,000 before January 1, 2001 with the proceeds thereof applied in
accordance with Section 4.02(B); provided, however, that the Borrower's failure
to meet the requirements of this Section 8.08(b) shall not be an Event of
Default if the Borrower sells, within 90 days (such period to be extended only
with the approval of 66 2/3% of the Lenders) of receiving the Notice of Lender
Designation (as defined hereafter), at fair market-value and with at least 100%
of the consideration therefor in cash, $35,000,000 of First Preferred Vessel
Value that the Required Lenders set forth, in their sole discretion, in a notice
of lender designation that shall specify (a) the assets to be sold and (b) a
timetable for the completion of the asset sales (such notice, the "Notice of
Lender Designation"). Upon the Borrower's failure to meet any of the
requirements of this Section 8.08(b), the Lenders shall have the option to
present to the Borrower the Notice of Lender Designation and require the
Borrower to sell the assets set forth therein. Once the Lenders have exercised
their option and the Borrower has complied with the terms of the Notice of
Lender Designation and sold the assets set forth therein, the Borrower shall not
be required to comply with the remaining provisions of this Section 8.08(b)
other than reducing the aggregate principal amount of Term Loans outstanding by
$60,000,000 before January 1, 2001 pursuant to clause (ii), above. The terms of
the Notice of Lender Designation shall not be amended or waived without the
approval of 66 2/3% of the Lenders."
8. Section 8.09 of the Credit Agreement is hereby amended by
(i) deleting text "Total Revolving Loan Commitment" appearing therein and (ii)
inserting the text "sum of the aggregate principal amount of Revolving Loans and
Swingline Loans then outstanding plus the aggregate amount of Letter of Credit
Outstandings" in lieu thereof.
9. Section 8.10 of the Credit Agreement is hereby amended by
deleting the text "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." appearing therein
and inserting the following text in lieu thereof:
"on the last day of the Test Period ended on December 31, 2000
and the fiscal quarter ended March 31, 2001 to be less than 0.60:1.00 and on the
last day of any fiscal quarter thereafter to be 1.00:1.00."
10. Section 10 of the Credit Agreement is hereby amended by
(i) inserting the text "(excluding payments required under Section 8.08(b))"
immediately prior to the text "and (iv)" in the definition of `Consolidated
Fixed Charges' appearing therein;
(ii) inserting the text, "excluding any interest payments
covered by the Escrow Agreement" immediately before the period appearing at the
end of the definition of `Consolidated Cash Interest Expense' appearing therein;
(iii) inserting the text "minus the amounts owed under current
maturities of long term debt" immediately after the text "at such time"
appearing in the definition of `Consolidated Current Liabilities';
(iv) deleting the definition of `Fixed Charge Coverage Ratio'
in its entirety and inserting the following definition in lieu thereof:
"`Fixed Charge Coverage Ratio' shall mean, for any period, the
ratio of (x) Consolidated EBITDA for such period to (y) Consolidated Fixed
Charges for such period";
(v) deleting the period appearing at the end of the definition
of `Consolidated EBIT' and inserting the text "or any non-cash effects of any
reserves or elimination of reserves or accruals to be made with respect to
payments to ▇▇▇▇ ▇▇▇▇▇ or the creation of a reserve for payments to ▇▇▇▇ ▇▇▇▇▇."
in lieu thereof; and
(vi)inserting the following new definitions in the appropriate
alphabetical location:
"`Consolidated Funded Indebtedness' shall mean the
consolidated indebtedness of the Borrower and its Subsidiaries as shown on the
balance sheet of the Borrower and its Subsidiaries, including Capitalized Lease
Obligations and excluding the consolidated indebtedness attributable to the
Lightship Tanker Entities.
"`Notice of Lender Designation' shall have the meaning
provided in Section 8.08(b).
"`Permitted Scheduled Asset Sales' shall have the meaning
provided in Section 8.02(xii)."
11. The Table of Contents of the Credit Agreement is hereby
amended by inserting the text " SCHEDULE X Permitted Scheduled Asset Sales"
immediately below the text "SCHEDULE IX Existing Investments" appearing therein.
12. Notwithstanding anything to the contrary contained herein,
in the Credit Agreement or the fee letter, dated December 8, 1999, executed
between the Borrower and the Administrative Agent, the Borrower hereby agrees to
pay a First Amendment Fee of $4,500,000. Such First Amendment Fee shall be
payable on the earliest of (i) the repayment in full of all Term Loans and
Revolving Loans, (ii) 24 months from the date hereof or (iii) the date on which
the ratio of (a) the Consolidated Funded Indebtedness to (b) Consolidated EBITDA
for the preceding full fiscal quarter period on the last day of any fiscal
quarter after December 31, 2000 is 4.00:1.00 or less. The First Amendment Fee
shall accrue interest at a rate of 15% per annum compounded quarterly from the
date hereof. The First Amendment Fee and interest accrued thereon shall not be
included in the calculation of any financial covenants provided in Sections
8.06, 8.08, 8.09, 8.10 or 8.11 of the Credit Agreement.
13. The Borrower hereby represents and warrants that after
giving effect to this Amendment (x) no Default or Event of Default exists on the
First Amendment Effective Date (as defined below) and (y) all of the
representations and warranties contained in the Credit Agreement or the other
Credit Documents shall be true and correct in all material respects on the First
Amendment Effective Date with the same effect as though such representations and
warranties had been made on and as of such date (it being understood that any
representation or warranty made as of a specific date shall be true and correct
in all material respects as of such specific date).
14. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document. All capitalized terms not defined
herein shall have the meaning given to them in the Credit Agreement.
15. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
16. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
17. This Amendment shall become effective on the date (the
"First Amendment Effective Date") when each of the Borrower and the Required
Lenders shall have signed a copy hereof (whether the same or different copies)
and, in each case, shall have delivered (including by way of telecopier) the
same to the Administrative Agent at the Notice Office.
* * *
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
HVIDE MARINE INCORPORATED
By________________________________
Name:
Title:
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By________________________________
Name:
Title:
MEES PIERSON CAPITAL CORP.,
By________________________________
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By________________________________
Name:
Title:
GMAC COMMERICAL CREDIT
By________________________________
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By: NatWest Capital Markets Limited, its Agent
By: Greenwich Capital Markets, Inc., its Agent
By________________________________
Name:
Title:
PROVIDENT BANK
By________________________________
Name:
Title:
OFFITBANK
By________________________________
Name:
Title: