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EXHIBIT 10.22 (d)
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U.S. $134,100,000
AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF FEBRUARY 3, 1997
By and Among
HVIDE MARINE INCORPORATED
and the Persons listed in Schedule A
as Borrowers,
and
CITIBANK, N.A.,
as Administrative Agent and Co-Agent,
and
THE FIRST NATIONAL BANK OF BOSTON,
as Letter of Credit Agent and Co-Agent,
and
CITIBANK, N.A.
THE FIRST NATIONAL BANK OF BOSTON
BNY FINANCIAL CORPORATION
HIBERNIA NATIONAL BANK
AMSOUTH BANK OF FLORIDA
as Banks
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AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 3, 1997 of
a Credit Agreement dated as of September 28, 1994 as subsequently amended by
Amendment No. 1 dated as of May 15, 1995, Amendment No. 2 dated as of March 26,
1996, the Amended and Restated Credit Agreement dated as of June 21, 1996 and
Amendment No. 1 dated as of December 17, 1996 to the Amended and Restated Credit
Agreement is made and entered into by and among HVIDE MARINE INCORPORATED, a
corporation organized and existing under the laws of the State of Florida
("Hvide" or a "Borrower"), and each of the other Borrowers, listed in Schedule A
(each a "Borrower" and together with each other Borrower, the "Borrowers") and
CITIBANK, N.A., a national banking association organized and existing under the
laws of the United States of America ("United States" or "U.S."), THE FIRST
NATIONAL BANK OF BOSTON, a national banking association organized and existing
under the laws of the United States and each of the other banks or other
institutions whose names may appear on the signature pages of this Agreement or,
if applicable, in the Register (each a "Bank" and, collectively, the "Banks")
for whom Citibank, N.A., subject to Article VII of this Agreement, acts as
Administrative Agent and Co-Agent and The First National Bank of Boston, subject
of Article VII of this Agreement acts as Letter of Credit Agent and Co-Agent.
Capitalized terms not otherwise herein defined shall have the respective
meanings set forth below in Section 1.01.
PRELIMINARY STATEMENTS
(1) As of the Effective Date, Hvide and the other Borrowers will repay the
Senior Subordinated Note.
(2) Hvide and the other Borrowers have requested the Banks to amend certain
covenants and to increase the amounts available under Facilities A and F.
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(3) The Borrowers have requested that the Banks enter into this Agreement
to provide the following Facilities:
Facility Principal Amount Purpose
A Twenty Million Dollars to finance seasonal working capital
($20,000,000) needs of Borrowers
B up to Fifty Six Million to finance acquisition of offshore
Seven Hundred Fifty supply vessels and to refinance
Thousand Dollars Crewboats' Note and to pay for a
($56,750,000) portion of the acquisition of the OMI
Vessels
C up to Five Million Six to replace an existing standby Letter
Hundred Thousand Dollars of Credit
($5,600,000)
D up to Six Million Dollars to provide other letters of
($6,000,000) (sublimit of credit
Facility A)
F up to Fifty Million Dollars to provide for acquisitions of
($50,000,000) vessels: If the sum of the undrawn
Commitment Facility F), all
Advances and Letters of Credit
is less than sixty five
percent (65%) of the Pledged Collateral,
availability of advances for an Acquisition
may be the lesser of:(x)up to one hundred
percent (100%) of the purchase price or
appraised value whichever is less) of the
Acquisition; or (y) a multiple of six times
EBITDA of the Acquisition. Otherwise,
availability of Advances for an Acquisition
is restricted to the lesser of:(x) sixty five
percent (65%) of the purchase price or appraised
value (whichever is less) of the Acquisition; or
(y) a multiple of six times EBITDA of the
Acquisition.
(4) The Borrowers have agreed to grant a first priority security interest
in the Mortgaged Vessels and the Receivables for all Obligations of the
Borrowers pursuant to Section 5.01(e).
(5) Each of the Banks has agreed severally, and not jointly, for such
Bank's Aggregate Amount and in the Percentage Interest in each Facility and to
provide the Loan upon the terms and conditions set forth herein.
(6) The Banks have requested each of the Administrative Agent and the
Letter of Credit Agent, and each of the Administrative Agent and the Letter of
Credit Agent has agreed, to act on behalf of the Banks in accordance with the
terms and conditions set forth herein.
(7) The Borrowers, the Administrative Agent, the Letter of Credit Agent and
each of the Banks party hereto desire
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to amend and restate this Credit Agreement in its entirety, following the
Effective Date, to reflect the changes occasioned by the Second Offering and by
the increase in the Facilities.
NOW, THEREFORE, the Borrowers, the Banks, the Administrative Agent and the
Letter of Credit Agent hereby agree among themselves as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.011 Definitions. As used in this Agreement, each of the following
terms shall have the respective meaning set forth below (such meanings, unless
otherwise indicated, to apply to both the singular and plural forms of the terms
defined) and all references to "Article", "Schedule", "Section" and "Exhibit"
shall mean an Article of, a Schedule to, a Section of, or Exhibit to, this
Agreement unless otherwise specified:
"Acquisition" means each of the Vessels or all of the equity interest in a
corporation or limited partnership or other entity acquired by Hvide which may
be funded with Advances under Facilities B or F subject to the terms of Section
2.01(a).
"Acquisition Documents" means each ▇▇▇▇ of sale, memorandum of agreement,
each invoice, each asset purchase agreement or stock purchase agreement and
related documentation in connection with an Acquisition by a Borrower.
"Acquisition Mortgage Supplement" means a mortgage supplement substantially
in the form of Exhibit N executed by the Mortgagee and a Borrower which is the
owner of a Vessel which is an Acquisition in order to mortgage the Vessel
pursuant to the terms of this Agreement.
"Administrative Agent" means Citibank, N.A., and any successor
administrative agent under this Agreement.
"Advance" means all amounts disbursed by the Banks and the Administrative
Agent to the Borrowers under this Agreement or owed to the Letter of Credit
Agent under Section 2.07(g).
"Affiliate" means, with respect to any Person, any other person
controlling, controlled by or under common control with, such Person. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling", "controlled by" and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to vote ten percent (10%) or more of the securities having voting power
for the election of directors of such Person, or otherwise to direct or cause
the direction of the management and
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policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"Aggregate Amount" means, as to a Bank the Dollar amount opposite such
Bank's name in Exhibit M hereto or, if applicable, in the Register, opposite
each Facility, as such amount may be adjusted from time to time pursuant to this
Agreement.
"Agreement" means this Agreement, as it may be restated, amended,
supplemented or otherwise modified from time to time.
"Agreement Date" means February 3, 1997 on which the respective parties
hereto shall have executed and delivered the Agreement.
"Alternate Base Rate" means, for any Interest Period or any other period, a
fluctuating interest rate per annum as shall be in effect from time to time,
which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank, N.A., in New
York, New York, from time to time, as its base rate;
(b) a rate equal to 1/2 of one percent per annum above the latest
three-week moving average of secondary market morning offering rates in the
United States for three-month certificates of deposit of major United
States money market banks, such three-week moving average determined weekly
on each Monday (or if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the previous
Friday by Citibank, N.A., on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal Reserve Bank
of New York or, if such publication shall be suspended or terminated, on
the basis of quotations for such rates received by Citibank, N.A., from
three New York certificate of deposit dealers of recognized standing
selected by Citibank, N.A., in each case adjusted to the nearest 1/4 of one
percent, or, if there is not nearest 1/4 of one percent, to the next higher
1/4 of one percent; or
(c) a rate equal to 1/2 of one percent per annum above the then
current Federal Funds Rate.
"Amendment and Restatement Fee" shall have the meaning set forth in Section
2.10 (d).
"Applicable Law" means anything in Section 8.09(d) to the contrary
notwithstanding, (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations
and orders of
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governmental bodies, including without limitation all provisions relating to the
environment, hazardous substances, health or safety, (ii) governmental approvals
and (iii) orders, decisions, judgments and decrees of all courts (whether at
law, in equity or admiralty) and arbitrators.
"Applicable Margin" means as to the Advances and any Letter of Credit, (a)
for the calendar year 1997, 1.25% as to the LIBOR Rate and 0.25% as to the
Alternate Base Rate; and (b) thereafter as to the LIBOR Rate or the Alternate
Base Rate, as the case may be, the Applicable Margin determined by the
Administrative Agent pursuant to Section 2.04(b)(iii)(A).
"Applicable Rate" means the Alternate Base Rate or the LIBOR Rate.
"Application" means an application for a letter of credit executed by the
Borrowers and delivered to the Letter of Credit Agent.
"Assignment and Acceptance" means any Assignment and Acceptance Agreement,
substantially in the form of Exhibit I and executed and delivered pursuant to
Section 7.10.
"Available Collateral" means, at any time (i) all Mortgaged Vessels; (ii)
Eligible Receivables; and (iii) all products and proceeds thereof.
"Available Commitment" shall have the meaning set forth in Exhibit K
hereto.
"Bank Taxes" means (i) net income, capital, doing business and franchise
taxes imposed on the Administrative Agent, the Letter of Credit Agent or a Bank
by the jurisdiction (a) under the laws of which the Administrative Agent, the
Letter of Credit Agent or such Bank is organized or any political subdivision or
taxing authority thereof or therein, (b) in which such Bank's lending office is
located or any political subdivision or taxing authority thereof or therein or
(c) in which such Bank is doing business or any political subdivision or taxing
authority thereof or therein and (ii) any tax, charge, fee, levy, impost, duty,
deduction or withholding that would not have been imposed but for the existence
of any present or former connection between the Administrative Agent, the Letter
of Credit Agent or Bank, as relevant (or between shareholders of such
Administrative Agent, the Letter of Credit Agent or Bank), and the United States
or any political subdivision thereof imposing such tax, charge, fee, levy,
impost, duty, deduction or withholding including, without limitation, the
Administrative Agent, the Letter of Credit Agent or Bank (or shareholders
thereof) being or having been a resident thereof, being or having been present
therein, being or having been engaged in a trade or business therein, or having
had a permanent establishment or fixed place of business therein (but excluding
a connection
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arising from the Administrative Agent's, Letter of Credit Agent's or a Bank's
execution or enforcement of or performance of its obligations under or receipt
of payment under the Loan Documents).
"Breakage Costs" has the meaning defined in Section 8.04(b).
"Business Day" means any day other than a Saturday, Sunday or any other day
on which commercial banks are required or authorized by law to close in New
York, New York, Boston, Massachusetts, London, England or in the city where the
Lending Office is located.
"Capital Expenditures" means the aggregate of all expenditures (including
that portion of leases which is capitalized on the consolidated balance sheet of
the Borrowers and their Subsidiaries and capitalized interest thereon) by the
Borrowers and their Subsidiaries that, in conformity with GAAP, should be, has
been or should have been included in the property, plant or equipment reflected
in a consolidated balance sheet of the Borrowers and their Subsidiaries.
"Capital Lease" means, with respect to any Person, any lease of any
property (whether real, personal or mixed) by such Person as lessee that, in
accordance with GAAP, either would be required to be classified and accounted
for as a capital lease on a balance sheet of such Person or otherwise be
disclosed as such in a note to such balance sheet, other than, in the case of
the Borrowers or a Subsidiary of the Borrowers, any such lease under which any
of the Borrowers or such Subsidiary is the lessor.
"Cash Collateral Account" has the meaning defined in Section 5.03.
"Change of Control" means any change in the share ownership of Class B
Common Stock of Hvide except as may be disclosed by the filings made with the
SEC or which is not in accordance with Hvide's Articles of Incorporation.
"Closing Date" means September 29, 1994 on which the original Credit
Agreement was executed and delivered.
"Co-Agent" means each of Citibank, N.A. and The First National Bank of
Boston, as Co-Agent under this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations promulgated and rulings issued thereunder.
"Collateral" means, collectively, the collateral listed in Schedule D and
all proceeds of the same and any property which becomes subject to the Security
Agreement after the date of this Agreement.
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"Commitment" means the obligation of each Bank to lend the amounts set
forth in Section 2.01 hereof, as such amounts may be reduced from time to time
pursuant to this Agreement.
"Commitment Fee" shall have the meaning set forth in Section 2.10(a).
"Commitment Termination Date" means January 14, 2002 with respect to
Facilities A and F; August 14, 1996 with respect to Facility B.
"Consolidated Assets" means, at any time, the consolidated assets of the
Borrowers and their consolidated subsidiaries as of such time.
"Consolidated Cash Flow" means for any period, EBITDA less cash taxes paid
plus Rental Expense less Capital Expenditures (excluding Acquisitions).
"Consolidated Financial Obligations" means for any period, all scheduled
principal payments in respect of Indebtedness plus Interest Expense and Rental
Expense which are to be paid by the Borrowers and their Consolidated
Subsidiaries.
"Consolidated Indebtedness" means Indebtedness of Hvide and its
Subsidiaries on a consolidated basis.
"Country of Registry" means each country under which a Vessel is documented
in the name of a Borrower as the owner and where the Mortgage in respect of said
Vessel is recorded.
"Credit Agreement" shall mean this Agreement, as from time to time
restated, amended, supplemented or modified.
"Crewboats Note" means the promissory note dated March 8, 1995 in the
original aggregate principal amount of Three Million United States Dollars (U.S.
$3,000,000) granted by Hvide in favor of Crewboats, Inc. and secured by First
Preferred mortgages over the U.S. flag vessels GULF RUNNER II, STORM RUNNER,
RAPID RUNNER and BIG BLUE.
"Default" means any event or condition that, with the giving of notice, the
lapse of time or both, would become an Event of Default.
"Dollars" and "$" means the lawful and freely transferable currency of the
United States of America.
"Drawdown Date" has the meaning set forth in Section 2.02(a).
"Earnings Assignment" means any assignment of earnings of a Mortgaged
Vessel by a Borrower to the Administrative Agent on behalf of the Banks,
substantially in the form of Exhibit G,
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and as the same may be amended, supplemented or otherwise modified from time to
time.
"EBITDA" means for any period and Person, the net income without giving
effect to adjustments, accruals, deductions or entries resulting from any gains
or losses from sales or other dispositions of assets of such Person for such
period plus, to the extent deducted in the calculation of net income, Interest
Expense, income taxes paid, depreciation, amortization and other non-cash
adjustments to income for such period excluding amortized drydocking expenses.
"EBITDAR" means EBITDA plus Rental Expenses.
"Effective Date" means the Business Day on which Hvide has received gross
proceeds of at least Sixty Five Million Dollars ($65,000,000) from its Second
Offering.
"Eligible Assignee" means (i) a commercial bank, savings and loan
institution, insurance company or financial institution organized under the laws
of the United States, or any State thereof, which bank has both assets in excess
of One Billion Dollars ($1,000,000,000) and combined capital and surplus in
excess of One Hundred Million Dollars ($100,000,000), or which insurance company
or financial institution has total assets in excess of One Billion Dollars
($1,000,000,000), and (ii) a finance company, insurance company or other
financial institution or a fund which is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business,
has total assets in excess of Five Hundred Million Dollars ($500,000,000), is
doing business in the United States and is organized under the laws of the
United States, or any State thereof, or under the laws of any member country of
the OECD.
"Eligible Receivable" has the meaning stated in the Security Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Event of Default" means any of the events specified as such in Section
6.01.
"Facility" means each of Facility A, B, C, D and F.
"Facility A" means, upon the Effective Date, the credit facility available
to the Borrowers pursuant to Section 2.01(a)(i).
"Facility B" means the credit facility available to the Borrowers pursuant
to Section 2.01(a)(ii).
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"Facility C" means the credit facility available to the Borrowers pursuant
to Sections 2.07(a)(i) and 2.07(b)(i).
"Facility D" means the credit facility available to the Borrowers pursuant
to Section 2.07(b)(ii).
"Facility F" means upon the Effective Date, the credit facility available
to the Borrowers pursuant to Section 2.01(a)(iii).
"Fair Market Value" has the meaning specified in Section 1.03.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum 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 of such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession for use in the United States; provided, however, that
if, as a result of any change in GAAP after the Closing Date, such change in the
opinion of the Banks adversely affects the basis or efficacy of the covenants
used in this Agreement to ascertain the financial condition of the Borrowers,
then the calculation of covenant compliance under this Agreement shall be
determined in accordance with GAAP, as applied as if such change had not
occurred.
"HMI Vessels" means each of HMI PETROCHEM, HMI DYNACHEM and HMI ASTRACHEM
acquired by Hvide from OMI Corp. as described in Exhibit L hereto.
"Home Port" means, as to each Vessel, the port of each Country of Registry
where documents of title and mortgages may be recorded in respect of such
Vessel.
"Hvide" means Hvide Marine Incorporated, formerly named Hvide Corp. as the
surviving corporation of the merger between Hvide Marine Incorporated and Hvide
Corp.
"Incorporation Jurisdiction" means the jurisdiction of incorporation or
legal organization of a Person.
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"Indebtedness" means (a) any liability of any Person (i) for borrowed
money, or under any reimbursement obligation related to a letter of credit or
bid or performance bond facility, or (ii) evidenced by a bond, note, debenture
or other evidence of indebtedness (including a purchase money obligation)
representing extensions of credit or given in connection with the acquisition of
any business, property, service or asset of any kind (other than a trade payable
or other current liability arising in the ordinary course of business) or (iii)
for obligations with respect to (A) an operating lease calculated on the basis
of the present value discounted at ten percent (10%) on the future payments from
such Person under such operating lease, or (B) a lease of real or personal
property that is or would be classified and accounted for as a Capital Lease;
(b) any liability of others either for any lease, dividend or letter of credit,
or for any obligation described in the preceding clause (a) that (i) the Person
has guaranteed or that is otherwise its legal liability (whether contingent or
otherwise or direct or indirect, but excluding endorsements of negotiable
instruments for deposit or collection in the ordinary course of business) or
(ii) is secured by any Lien on any property or asset owned or held by that
Person, regardless whether the obligation secured thereby shall have been
assumed by or is a personal liability of that Person; and (c) any amendment,
supplement, modification, deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b), above.
"Insurance Assignment" means any assignment of insurance in respect of a
Mortgaged Vessel by any of the Borrowers to the Administrative Agent on behalf
of the Banks, substantially in the form of Exhibit H, and as the same may be
amended, supplemented or otherwise modified from time to time.
"Interest Expense" means interest expense net of interest income as
determined in accordance with GAAP.
"Interest Payment Date" means with respect to any Advance (1) the last day
of each Interest Period for such Advance, (2) the last day of each three-month
portion of each Interest Period which is longer than three months, and (3) the
day any principal amount of such Advance matures and becomes due and payable.
"Interest Period" means with respect to each Advance (or any tranche
comprising a part thereof), each respective and successive (i) one-, two-,
three- or six-month calendar period for any portion of the Loan bearing interest
at a rate based on the LIBOR Rate and (ii) period for any portion of the Loan
bearing interest at a rate based on the Alternate Base Rate. Each such period
shall be designated by the Borrowers or the Administrative Agent, as the case
may be, pursuant to Section 2.04(b), and shall commence on the Drawdown Date or
the last day of the immediately preceding Interest Period, as the case may be,
of such Advance (or tranche comprising a part thereof) and
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continue until such date as the Advance (or such tranche) shall be paid in full,
provided, however, that (i) if any Interest Period (other than in respect of any
portion of the Loan bearing interest at a rate based on the Alternate Base Rate)
includes a Principal Payment Date but does not end on such date, then (x) the
principal amount of the Loan required to be paid on such date shall have an
Interest Period ending on such date and (y) the remainder (if any) of the Loan
shall have an Interest Period determined pursuant to Section 2.04, (ii) in all
cases each Interest Period shall commence on the expiry of the immediately
preceding Interest Period, and (iii) no Interest Period with respect to any
Facility shall commence on or extend past the Maturity Date of such Facility.
"IPO" means the initial public offering of Hvide stock described in that
certain Form S-1, Registration No. 33-78166, filed with the SEC on May 13, 1996
as amended by Amendments ▇▇. ▇, ▇▇. ▇ and No. 3.
"IPO Date" means August 14, 1996.
"Junior Subordinated Note" means the 8% Junior Subordinated Notes due 2014
in the principal amount of $25,000,000 purchased on or before September 29, 1994
under the Junior Subordinated Note and Common Stock Purchase Agreement dated as
of September 29, 1994.
"Lending Office" means the office of the Administrative Agent at One Court
Square, 7th Floor, Long Island City, New York, New York 11120-0001, or any other
office or affiliate of the Administrative Agent hereafter selected and notified
to the Borrowers from time to time by the Administrative Agent.
"Letter of Credit" means each Letter of Credit issued in respect of
Facilities C and D, substantially in the form of Exhibit A or in such form as
may be approved by the Letter of Credit Agent and as the same may be from time
to time amended, supplemented or otherwise modified.
"Letter of Credit Agent" means The First National Bank of Boston, and any
successor letter of credit agent under this Agreement.
"Letter of Credit Closing Date" means any date on which the Letter of
Credit Agent has issued one or more Letters of Credit pursuant to Facility C
and/or Facility D.
"Letter of Credit Renewal Date" means any date on which a Letter of Credit
by its terms, may be renewed.
"Leverage Ratio" means the ratio of Consolidated Indebtedness to Tangible
Net Worth as described in Section 5.01(d)(ii).
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"LIBOR Rate" means, for an Interest Period for any portion of the Loan
bearing interest at a rate based on the LIBOR Rate, the rate determined by the
Administrative Agent to be the rate of interest per annum equal to the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits in
United States Dollars are offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London interbank market
at 11:00 A.M. (London time) as published by Reuters or Telerate two Business
Days before the first day of such Interest Period for a term equal to such
Interest Period and in an amount substantially equal to such portion of the
Loan. The LIBOR Rate for an Interest Period shall be determined by the
Administrative Agent on the basis of applicable rate furnished to and received
by the Administrative Agent from the Reference Banks two Business Days before
the first day of such Interest Period. If at any time the Administrative Agent
shall determine that by reason of circumstances affecting the London interbank
market (i) adequate and reasonable means do not exist for ascertaining the LIBOR
Rate for the succeeding Interest Period or (ii) the making or continuance of any
Loan at a rate based on the LIBOR Rate has become impracticable as a result of a
contingency occurring after the date of this Agreement which materially and
adversely affects the London interbank market, the Administrative Agent shall so
notify the Banks and the Borrowers. Failing the availability of the LIBOR Rate,
the LIBOR Rate shall mean the Alternate Base Rate thereafter in effect from time
to time until such time as a LIBOR Rate may be determined by reference to the
London interbank market.
"Lien" means any lien, charge, easement, claim, mortgage, option, pledge,
right of first refusal, right of usufruct, security interest, servitude,
transfer restriction or other encumbrance or any restriction or limitation of
any kind (including, without limitation, any adverse claim to title, conditional
sale or other title retention agreement, any lease in the nature thereof, and
any agreement to give any security interest).
"Liquidity" means as to any Borrower unrestricted cash and Permitted
Investments of such Borrower.
"Loan" means the aggregate amount of the Advances to the Borrowers by each
Bank and all amounts owed by the Borrowers in respect of drawings under the
Letter of Credit provided for in Section 2.01.
"Loan Documents" means this Agreement, the Notes, the Letter of Credit, the
Applications and the Security Documents.
"Majority Banks" means any Bank or Banks having an aggregate of not less
than a (65%) Sixty Five Percentage Interest
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and holding at least Sixty Five percent (65%) of the then aggregate unpaid
principal amount of the Advances.
"Master Vessel Trust Agreement" means the amended and restated Master
Vessel Trust Agreement between the Mortgagee and the Administrative Agent on
behalf of the Banks, substantially in the form of Exhibit J, and as the same may
be from time to time amended, restated, supplemented or otherwise modified.
"Maturity Date" means in respect of Advances made under Facilities A, B, D
and F, January 15, 2002, and in respect of Advances made under Facility C,
January 15, 2000.
"Mortgage" means a mortgage by a Borrower of any Vessel delivered to the
Mortgagee for the benefit of the Banks, substantially in the form of Exhibit F,
and as the same may be from time to time amended, supplemented or otherwise
modified.
"Mortgaged Vessel" means a Vessel as described in each granting clause of a
Mortgage.
"Mortgagee" means First Union National Bank (as successor by merger with
First Fidelity Bank, National Association), a national banking association
organized and existing under the laws of the United States, or such other Person
as the Administrative Agent on behalf of the Banks shall designate as trustee
under the Master Vessel Trust Agreement to act as Mortgagee under the Mortgage.
"New Money Commitment" means the obligation of each Bank to lend the
amounts set forth in Exhibit B hereto, as such amounts may be reduced from time
to time pursuant to this Agreement.
"New Money Fee" has the meaning stated in Section 2.10(d).
"Note" means any of, and "Notes" means all, the promissory notes executed
and delivered by the Borrowers in connection with this Agreement, substantially
in the form of Exhibits ▇-▇, ▇-▇ ▇▇▇ ▇-▇, respectively, and as any such note may
be replaced, amended, supplemented or otherwise modified from time to time.
"Notice of Borrowing" has the meaning stated in Section 2.02(a).
"Notice of Margin Adjustment" has the meaning stated in Section
2.04(b)(iii)(B).
"OECD" means the Organization for Economic Cooperation and Development.
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"Obligations" means all obligations, including but not limited to, all
principal, interest, fees, expenses and other obligations, of every nature of
the Borrowers, or any of their Subsidiaries or Affiliates from time to time owed
to the Administrative Agent, any of the Banks, the Letter of Credit Agent, or
all of them, under this Agreement or any of the Loan Documents.
"Percentage Interest" means, as to a Bank, the percentage set forth
opposite such Bank's name on Exhibit M of this Agreement and any amendment
hereto, or if applicable, in the Register.
"Permitted Investments" means (i) direct obligations of, or obligations
guaranteed by, the Government of the United States or any agency thereof, in
each case backed by the full faith and credit of the United States and having
maturities of not later than the Principal Payment Date next succeeding the date
of acquisition, (ii) commercial paper, maturing not later than the Principal
Payment Date next succeeding the date of acquisition, rated at least P-1 by
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") or at least A-1 by Standard & Poor's
Corporation ("S&P"), (iii) Dollar denominated certificates of deposit, time
deposits and banker's acceptances maturing not later than the Principal Payment
Date next succeeding the date of acquisition, issued by (A) the Administrative
Agent, the Co-Agents or any one of the Banks hereunder, (B) a domestic
commercial bank that has a combined capital and surplus and undivided profits of
not less than $500,000,000, or (C) any bank whose short-term commercial paper
rating from ▇▇▇▇▇'▇ is at least P-1 or from S&P is at least A-1, and (iv)
repurchase agreements having maturities of not later than the Principal Payment
Date next succeeding the date of acquisition (A) which are entered into with
major money center banks included in the commercial banking institutions
described in clause (iii), and (B) which are secured by readily marketable
direct obligations of the Government of the United States of America or any
agency thereof having maturities of not later than the Principal Payment Date
next succeeding the date of acquisition.
"Person" means any individual, corporation, limited partnership,
partnership, business trust, joint venture, association, joint stock company,
trust or other unincorporated organization, whether or not a legal entity, or
any government or agency or political subdivision thereof.
"Pledged Collateral" shall have the meaning set forth in Section
5.01(e)(i).
"Principal Payment Date" means (a) as to each Advance in respect of
Facility A, the Maturity Date, (b) as to each Advance in respect of Facility B
and Facility F, the Maturity Date for such advance and the 15th day of each of
January, April, July and October of each year commencing on the dates provided
in
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Section 2.03, (c) as to any Advance in respect of Facility C, the date on which
demand for repayment is made, or January 15, 2000, whichever is earlier, and (d)
as to any Advance in respect of Facility D, the date on which demand for
repayment is made, or January 15, 2002, whichever is earlier.
"Receivables" has the meaning stated in the Security Agreement.
"Reference Bank" means Citibank, N.A.
"Register" has the meaning stated in Section 7.10(d).
"Related Party Contract" means those contracts listed in Schedule B.
"Relevant Amount" has the meaning stated in Section 2.04(b)(iii).
"Rental Expense" means operating lease payments and other rental payments
as determined in accordance with GAAP.
"Reserve Percentage" has the meaning stated in Section 2.06(b).
"S-1" means the Form S-1, Registration No. 33-18525 filed with the SEC on
December 23, 1996 as amended by Amendment No. 1 thereto and such other future
amendments as may be required by the SEC.
"SEABULK AMERICA" means that U.S. flag vessel owned by Seabulk Tankers
Partnership, Ltd., and bearing Official Number 961357.
"Seal Fleet Vessels" means each of the eight vessels acquired by Hvide from
Seal Fleet Inc., ▇▇▇▇ Seal Partners, Ltd., Bengal Seal Partners, Ltd., Indian
Seal Partners, Ltd., Baffin Seal Partners, Ltd., and Baltor Seal Partners, Ltd.,
as described in Exhibit L hereto.
"SEC" means the Securities and Exchange Commission of the United States and
its successors.
"Security Agreement" means the Security Agreement dated as of the date
hereof for the benefit of the Banks substantially in the form of Exhibit E, and
as the same may be from time to time amended, restated, supplemented or
otherwise modified.
"Security Documents" means the Master Vessel Trust Agreement, each
Mortgage, each Earnings Assignment, each Insurance Assignment, and the Security
Agreement.
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"Senior Subordinated Note" means Hvide's 12% Senior Subordinated Notes due
2004 in the original principal amount of $25,000,000 purchased on or before the
Closing Date under the Senior Subordinated Note and Common Stock Purchase
Agreement dated as of September 29, 1994.
"Second Offering" means the public offering of Six Million shares of Class
A Common Stock of Hvide described in the S-1.
"Solvent" means with respect to any Person on a particular date, that on
such date (i) the fair market value of the assets of such Person is greater than
the total amount of liabilities (including contingent liabilities) of such
Person, (ii) the present fair salable value of the assets of such Person is
greater than the amount that will be required to pay the probable liabilities of
such Person for its debts as they become absolute and matured, (iii) such Person
is able to realize upon its assets and pay its debts and other liabilities,
including contingent obligations, as they mature, and (iv) such Person does not
have unreasonably small capital for the business in which it is engaged.
"Subsidiary" means, with respect to any Person, any corporation,
association, limited partnership, partnership or other business entity of which
a majority of the voting power entitled to vote in the election of directors,
managers or trustees thereof (or in the case of a limited partnership, in the
control of the general partner) is at the time owned, directly or indirectly, by
such Person or by one or more other Subsidiaries, or by such Person and one or
more other Subsidiaries, or a combination thereof.
"Tangible Net Worth" means the excess of the total assets of the Borrowers
on a consolidated basis over Total Liabilities, excluding, however, from the
determination of total assets (i) goodwill, organizational expenses, research
and development expenses, trademarks, trade names, copyrights, patents, patent
applications, licenses and rights in any thereof and other similar intangibles,
(ii) unamortized debt discount and expense, (iii) all reserves carried and not
deducted from assets, (iv) treasury stock and capital stock, obligations or
other securities of or capital contributions to or investments in any
Subsidiary, (v) sinking or other analogous funds established for the purpose of
redemption, retirement or prepayment of capital stock, (vi) any write up in the
book value of any assets resulting from a revaluation thereof subsequent to
December 31, 1993, (vii) capitalized expenses in connection with the issuance of
debt or equity and (viii) any items not included in clauses (i) through (vii)
above which are treated as intangibles in conformity with GAAP.
"Taxes" means all income, excise, stamp or franchise taxes and any other
tax, charge, fee, levy, impost, duty,
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withholding, deduction or other assessment of any kind whatsoever, including any
interest, penalties or additions attributable thereto, imposed by any federal,
commonwealth, state, local or foreign taxing authority.
"Title XI Debt" means the United States Government Guaranteed Ship
Financing Bonds ("Title XI Bonds") issued pursuant to Title XI of the Merchant
Marine Act of 1936, as amended, which consist of approximately Four Million
Three Hundred Thousand Dollars ($4,300,000) in eight and one half percent (8.5%)
Title XI Bonds due 1999 relating to M/V SEABULK CHALLENGER and approximately Ten
Million Six Hundred Thousand Dollars ($10,600,000) in five and one quarter
percent (5.25%) Title XI Bonds due 2000 relating to M/V SEABULK MAGNACHEM and
five series of Title XI Bonds due 2006 totalling approximately Thirty Four
Million Seven Hundred Thousand Dollars ($34,700,000) and bearing interest at an
average rate of seven point sixty five percent (7.65%) relating to HMI PETROCHEM
and HMI DYNACHEM.
"Total Liabilities" means all the obligations in accordance with GAAP which
are included in determining the total liabilities as shown on the liabilities
side of the balance sheet of the Borrowers on a consolidated basis.
"Total Loss" means, in respect of any Vessel, any of the following events;
(x) the actual or constructive total loss of such Vessel or the agreed or
compromised total loss of such Vessel; or (y) the capture, condemnation,
confiscation, requisition, purchase, seizure or forfeiture of, or any taking of
title to, such Vessel. A Total Loss shall be deemed to have occurred (i) in the
event of an actual loss of such Vessel, on the date of such loss; (ii) in the
event of damage which results in a constructive or compromised or arranged total
loss of such Vessel, on the date of the event giving rise to such damage; or
(iii) in the case of any event referred to in clause (y) above, on the date of
the occurrence of such event. Notwithstanding the foregoing, if such Vessel is
subject to a Mortgage and such Vessel shall have been returned to the Borrowers
following any capture, requisition or seizure referred to in clause (y) above
prior to the date upon which payment is required to be made under Section
2.05(d), no Total Loss of such Vessel shall be deemed to have occurred by reason
of such capture, requisition or seizure.
"Total Outstandings" has the meaning stated in Section 5.01(e)(i).
"Transaction" means the financing contemplated by the Loan Documents.
"Uniform Customs" means Uniform Customs and Practice for Commercial
Documentary Credits of the International Chamber of Commerce, revision 500 of
1993 and as the same may be amended, modified or supplemented.
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"Unreimbursed Letter of Credit Obligations" means any amounts which the
Borrowers are obligated to reimburse the Letter of Credit Agent for drawings on
a Letter of Credit.
"Vessel" means any of, and "Vessels" mean all of, the vessels described in
Schedule D and any vessel which in the future may be owned by a Borrower and
covered by a Mortgage.
SECTION 1.012 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, consistently applied.
SECTION 1.013 Valuations. (a) "Fair Market Value" shall mean as to any
Vessel and any determination of "Fair Market Value" of a Vessel as the
Administrative Agent may require from time to time in accordance with this
Agreement, the fair market value of such Vessel determined as set forth in this
Section 1.03. All appraisers shall be selected from firms of independent
shipbrokers or marine surveyors of recognized standing and listed in Schedule C
to this Agreement, and as such schedule may be amended, modified or supplemented
from time to time.
(b) The Administrative Agent may at any time direct, and the Borrowers may,
and shall, if requested by the Administrative Agent, cause an appraiser
designated by the Administrative Agent to perform a valuation and such
determination will be binding; provided, however, if such appraisal is
challenged pursuant to (c) below, such determination shall be binding until the
resolution of the matter pursuant to (c) below. Except as otherwise provided in
paragraph (c) below, the cost of obtaining at the request of the Administrative
Agent up to two appraisals per calendar year for each Vessel shall be paid by
the Borrowers and the cost of appraisals obtained at the Borrowers' request
shall be paid by the Borrowers.
(c) In the event that the Borrowers or the Administrative Agent shall
dispute or challenge the fair market value determined by such appraiser, then
the Borrowers and the Administrative Agent shall each appoint a separate
appraiser (which need not be listed in Schedule C) and the two appraisers (which
need not be listed in Schedule C) appointed by the Administrative Agent and the
Borrowers shall appoint a third appraiser (which need not be listed in Schedule
C). Each appraiser so appointed shall make a separate determination of fair
market value on the same basis. The three determinations of fair market value
shall be averaged by the Administrative Agent and the determination which is
furthest from such average (whether higher or lower) shall be disregarded. The
remaining two determinations shall then be averaged by the Administrative Agent
with such average to be controlling for purposes of this Agreement with respect
to the then current fair market value of a Vessel. The cost of obtaining all
such opinions in the event of a dispute or challenge shall be payable by the
party disputing or challenging the original fair market value determination.
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(d) In the event the appraisers nominated by the parties fail to appoint a
third appraiser or any such appraiser, however appointed, fails to deliver a
valuation, unless otherwise agreed, the parties may petition the American
Arbitration Association in New York, New York to appoint a third appraiser. Upon
receipt of such appointed appraiser's appraisal, the Administrative Agent shall
determine the fair market value as provided in paragraph (c) above.
(e) All appraisals shall be made without, unless otherwise reasonably
required by the Administrative Agent, physical inspection and on the basis of an
arm's length purchase by a willing and able commercial buyer from a willing and
able commercial seller and without taking into account any charter party.
ARTICLE II.
AMOUNTS AND TERMS OF THE ADVANCES
AND LETTER OF CREDIT
SECTION 1.021 The Advances. (a) Upon the terms and subject to the
conditions set forth in this Agreement, the Banks agree, severally on the basis
of their respective Percentage Interests but not jointly, to make Advances as
follows:
(i) in respect of Facility A, subject to the terms of Section
2.07(b)(ii), in a maximum amount not to exceed at any time outstanding such
Bank's Aggregate Amount in respect of Facility A, and provided further that
any request for an advance under Facility A shall be in an aggregate amount
not less than $500,000 and an integral multiple of $100,000 if in excess
thereof;
(ii) in respect of Facility B, in an aggregate amount not to exceed at
any time outstanding such Bank's Aggregate Amount in respect of Facility B;
and
(iii) in respect of Facility F, in an aggregate amount not to exceed
at any time outstanding such Bank's Aggregate Amount in respect of Facility
F; PROVIDED HOWEVER, that amounts advanced under this Facility F are
restricted to Acquisitions which do not exceed: (A) the lesser of either
(x) one hundred percent (100%) of the purchase price or appraised value
(whichever is less) of the Acquisition being acquired or (y) a multiple of
six times the EBITDA of the Acquisition if the sum of the undrawn
Commitment (excluding Facility F) all Advances and Letters of Credit is
less than 65% of the Pledged Collateral; or (B)the lesser of either (x)
sixty five percent (65%) of the purchase price or appraised value
(whichever is less) of the Acquisition being acquired, or (y) a multiple of
six times EBITDA of the
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Acquisition if the sum of the undrawn Commitment (excluding Facility F) all
Advances and Letters of Credit is equal to or greater than 65% of the
Pledged Collateral .
(b) The total amount to be made available by each Bank as part of an
Advance for a Facility shall never exceed the Commitment of such Bank for
such Facility, and shall be proportionate always to such Bank's Percentage
Interest. The Banks are obligated to make Advances pursuant to this
Agreement until the relevant Commitment Termination Date. The obligation of
the Borrowers to repay each Advance shall be evidenced by this Agreement
and in the case of Facility A, Facility B, and Facility F, the Notes. In
respect of each Advance to the Borrowers under Facility A, Facility B, and
Facility F, the Borrowers shall issue in favor of each Bank a Note in
respect of each of such Facilities.
(c) The failure of any Bank to advance its Commitment in respect of
any Advance shall not relieve it or any other Bank of the obligation to
advance its Commitment, but no Bank or the Administrative Agent shall be
responsible for the failure of any other Bank to advance its Commitment to
the Borrowers.
SECTION 1.022 Disbursement of the Advances. (a) The Advance for each
Facility shall be made simultaneously, on at least three Business Days prior
written notice from the Borrowers to the Banks and the Administrative Agent
specifying the disbursement date therefor (a "Drawdown Date") which shall not be
later than the Business Day prior to the earlier of the Commitment Termination
Date or the Maturity Date. There shall be no more than three Drawdown Dates for
Facility B (except as to Advances made in respect of Facility C pursuant to
Section 2.03 (iii)). There shall be one Drawdown Date with respect to Facility
C. Each Drawdown Date shall be a Business Day. Not later than 10:00 A.M. (New
York City time) on such Drawdown Date, and upon fulfillment of the conditions in
Article III hereof, the Banks will make the Advances available to the
Administrative Agent for disbursement to the Borrowers in same day funds at the
Lending Office. Such notice of borrowing (the "Notice of Borrowing") shall be by
telex, telefacsimile or cable, confirmed immediately in writing signed by an
authorized officer of each of the Borrowers, in substantially the form of
Exhibit C, specifying therein (i) the requested date of such borrowing, (ii) the
aggregate Dollar amount to be borrowed and, but only to the extent the same may
be permitted or required in Section 2.04(b)(ii), the number of tranches and the
Dollar amount of each tranche and (iii) the Interest Period for such borrowing
(and each tranche thereof). The Commitment of each Bank shall terminate in an
amount equal to, and the Aggregate Amount of each Bank shall be reduced by, the
amount made available by such Bank in respect of each Advance.
(b) Each Notice of Borrowing sent shall be irrevocable and binding on the
Borrowers. If for any reason on a Drawdown
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Date specified in a Notice of Borrowing, any Advance is not made as a result of
any failure to fulfill on or before such Drawdown Date the applicable conditions
precedent, the Borrowers shall indemnify each Bank against any loss, cost or
expense incurred by such Bank as a result of such failure, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Bank to fund the
Advances to be made by such Bank as part of such borrowing.
SECTION 1.023 Repayment. The Borrowers shall repay the aggregate principal
amount of each Advance in respect of each Facility as follows:
(i) Advances with respect to Facility A shall be paid on the Maturity
Date with respect to such Facility; PROVIDED HOWEVER, that, beginning in
the calendar year 1997, the Borrowers shall repay any and all Advances in
respect of Facility A (including amounts drawn under Facility D) in excess
of Ten Million Dollars (US$10,000,000) annually and shall not reborrow such
amounts for a period of no less than 30 consecutive calendar days in each
calendar year.
(ii) Advances with respect to Facility B shall be repaid in 21
consecutive quarterly payments commencing on January 21, 1997 and on each
subsequent, January 15th, April 15th, July 15th and October 15th, until the
Maturity Date according to the amortization schedule set forth in Exhibit K
hereto.
(iii) Advances with respect to Facility C shall be repayable on
demand; PROVIDED HOWEVER, that, subject to the terms of this Agreement, the
Borrowers may request, and if there is no existing Event of Default each
Bank shall make, an additional Advance under Facility B to reimburse any
amounts drawn under Facility C (and in such case, the Advances will be
repaid according to the Schedule provided in Section 2.03(ii) pro rated
over the then remaining Principal Payment Dates).
(iv) Advances with respect to Facility F shall be repaid in
consecutive quarterly installments according to the Schedule set forth in
Exhibit K hereto.
(v) The final payment of all outstanding principal amounts of a
Facility shall be made on the Maturity Date for such Facility.
SECTION 1.024 Interest. (a) The Borrowers shall pay interest on the unpaid
principal amount of each Advance from the Drawdown Date for such Advance until
the principal amount of such Advance is paid in full, payable on each Interest
Payment Date with respect to each such Advance. Notwithstanding the preceding
sentence of this Section 2.04(a), all interest accrued on any
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Advance outstanding on the Maturity Date of such Advance shall be paid on the
Maturity Date for such Advance.
(b) As long as any Advance shall be outstanding, and payment of the
principal thereof and interest thereon shall not be in default, interest on the
Advance shall be payable at an interest rate which shall be adjusted as provided
in this Section, and in the case of the Alternate Base Rate and to reflect any
change in the Applicable Margin, as set forth herein during such Interest
Period, and which shall be determined as follows:
(i) with respect to each day of the period commencing on and following
a Drawdown Date and for each day of each successive Interest Period
thereafter, the Borrowers shall pay interest on each Advance in its
entirety or in one or more tranches permitted under Section 2.04(b)(ii) at
an interest rate equal to the sum of (y) the Applicable Margin plus (z) the
Alternate Base Rate or the LIBOR Rate, as the case may be, subject to
periodic adjustment as provided in Section 2.04(b)(iii);
(ii) with respect to each Interest Period, the Borrowers shall, by
telex notice to be received by the Administrative Agent by 10 A.M. New York
time at least four Business Days (one Business Day, in the case of an
Advance bearing interest at Alternate Base Rate) prior to the commencement
of each such successive period, elect the Applicable Rate and elect an
Interest Period of one, two, three or six months duration in the case of
LIBOR Rate, and such other period in the case of the Alternate Base Rate,
and one or more but no more than four tranches in total for all outstanding
Advances, provided each tranche shall be in an amount not less than the
scheduled principal amount due on the Maturity Date; provided the Borrowers
shall select Interest Periods, and if necessary shall select as the final
Interest Period for each Advance an Interest Period less than one month in
duration, so that the maturity date of each Advance shall be the last day
of the Interest Period for such Advance; provided that if the Borrowers
shall fail to elect the Applicable Rate or an Interest Period as herein
provided, and so long as any Event of Default has not occurred and is
continuing, the Administrative Agent shall elect the relevant Applicable
Rate and the Interest Period, which may be one day;
(iii) (A) the interest payable on each Advance during each successive
Interest Period shall be adjusted as set forth herein by the Administrative
Agent for any change in the Applicable Margin in addition to adjustments in
respect of the Alternate Base Rate, if such rate is then used. As to the
Letter of Credit and as to all other Advances beginning from January 1,
1998, the Applicable Margin for each Interest Period (and each day thereof)
shall
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be determined by the Administrative Agent (or the Letter of Credit Agent,
as the case may be) subject to further adjustment from time to time
pursuant to paragraph (B) of this sub-section (iii). In respect of the
Advances the highest Applicable Margin shall be in effect unless the
following test is met on a rolling four quarter basis:
Consolidated LIBOR and Alternate
Indebtedness/ Letter of Credit Base Rate
EBITDAR Applicable Margin Applicable Margin
------------ ----------------- -----------------
3.00 to 3.49 1.50% .50%
2.50 to 2.99 1.25% .25%
2.00 to 2.49 1.00% 0%
1.99 or Below 0.75% 0%
For the first three quarters following the IPO, the Administrative Agent
shall use Hvide's Pro Forma Consolidated Historical Financial Statements as
presented in the S-1 for purposes of determining whether the foregoing
tests have been met. From the fourth quarter following the IPO Date until
the Maturity Date, the Administrative Agent shall use the Borrowers' most
recent quarterly financial statements for purposes of determining whether
the foregoing tests have been met.
(B) To the extent of any change in the Applicable Margin during any
Interest Period, the Administrative Agent shall give prompt written notice
to the Borrowers and the Banks (a "Notice of Margin Adjustment") specifying
the amount, if any, of additional interest payable by the Borrowers, or
excess interest paid by the Borrowers, as the case may be, as a result of
such change in the Applicable Margin (such amount, the "Relevant Amount").
The Borrowers shall immediately pay to the Administrative Agent any such
Relevant Amount specified as payable in the Notice of Margin Adjustment,
together with interest to the date of payment calculated as for an Advance;
any Relevant Amount specified in the Notice of Margin Adjustment as an
excess payment by the Borrowers shall be credited to interest payable by
the Borrowers on the next Interest Payment Date;
(iv) the Administrative Agent shall give prompt notice to the
Borrowers and the Banks of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.04(b) and the rates
published by each Reference Bank and used for the purpose of determining
the applicable LIBOR Rate hereunder; and
(v) if, with respect to any Advance bearing interest at a rate based
on the LIBOR Rate, any Bank shall
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notify the Administrative Agent that the LIBOR Rate for any Interest
Period for such Advance will not adequately reflect the cost to such Bank
of making, funding or maintaining its portion of such Advance for such
Interest Period, the Administrative Agent shall forthwith so notify the
Borrowers and the Banks, whereupon
(A) each such Bank's portion of each such Advance bearing interest
at a rate based on the LIBOR Rate will automatically, on the last day of
the then existing Interest Period therefor, convert into an Advance
bearing interest at a rate based on the Alternate Base Rate, and
(B) the obligation of each such Bank to make Advances, or to convert
Advances into Advances, bearing interest at a rate based on the LIBOR
Rate shall be suspended until such Bank shall notify the Borrowers and
the Administrative Agent that the circumstances causing such suspension
no longer exist.
(c) In the event that the Administrative Agent or any Bank does not
receive on the due date any sum due under this Agreement or any of the other
Loan Documents in accordance with the terms hereof or thereof, or so long as any
Event of Default has occurred and is continuing, the Borrowers shall pay to the
Administrative Agent and such Banks, as the case may be, on demand in accordance
with Section 2.07 hereof, interest on all unpaid sums, from and including the
due date thereof or the date such Event of Default occurred, whichever is
earlier to but not including the date of actual payment (or date such Event of
Default is cured), at a rate per annum determined by the Administrative Agent
from time to time to be the sum of (a) two per cent (2%) and the Applicable
Margin plus (b) the Applicable Rate. Except as otherwise provided in the
following subsection (d), any such interest which is not paid when due shall be
compounded at the end of each Interest Period (both before and after any notice
of demand) by the Administrative Agent on behalf of the Banks under this
Agreement.
(d) Notwithstanding any provision contained in any of the Loan
Documents, none of the Banks, the Letter of Credit Agent nor the Administrative
Agent shall ever be entitled to receive, collect, or apply, as interest on the
Obligations, any amount in excess of the maximum rate of interest permitted to
be charged by Applicable Law. In the event any Bank, the Letter of Credit Agent
or the Administrative Agent ever receives, collects, or applies as interest, any
such excess, such amount which would be excessive interest shall be applied to
the reduction of the Obligations then outstanding. If the Obligations then
outstanding are paid in full, any remaining excess shall forthwith be paid to
the Borrowers. In determining whether or not the interest paid or payable, under
any specific contingency, exceeds the highest lawful rate, the Borrowers and any
Bank, the Letter of Credit Agent or the Administrative Agent, as the case
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may be, shall, to the maximum extent permitted under Applicable Law, (i)
characterize any non-principal payment as an expense, fee or premium rather
than as interest, (ii) exclude any voluntary prepayments and the effects
thereof, and (iii) spread the total amount of interest throughout the entire
contemplated term of the Obligations so that the interest rate is uniform
throughout the entire term of the Obligations.
SECTION 1.025 Prepayments. (a) Upon at least four Business Days' notice to
the Administrative Agent received by 10:00 A.M. New York time, the Borrowers may
prepay, subject to payment of Breakage Costs, if any, incurred by the Banks, the
outstanding amount of each Advance for a Facility, in whole or in part, on the
last day of any Interest Period for each such Advance or part thereof, with
accrued interest to the date of such prepayment on the amount prepaid, provided
that no such partial prepayment shall be in a principal amount of less than Two
Hundred Fifty Thousand Dollars ($250,000) and be in integral multiples of One
Hundred Thousand Dollars ($100,000) in addition to such minimum amount. The
Administrative Agent promptly shall give the Banks a copy of each such notice
received from the Borrowers. Optional repayments shall be applied to completely
repay the Facilities in the following order: Facility A, then Facility B, then
Facility F, and then, to the extent that the Borrowers have terminated the
Commitment under Facility A, to be deposited in the Cash Collateral Account as
security for Facility C and Facility D. Optional prepayments in respect of each
Facility shall be applied to such Facility (i) first to the next scheduled
payment of principal, (ii) then to the final payment due on the Maturity Date
and (iii) finally pro rata over the remaining scheduled principal payments.
Prepayments shall be applied pro rata to all Banks' Advances under the
respective Facility. If Facility B is prepaid, no part thereof may be
reborrowed. If Facility F is prepaid, amounts may be reborrowed to the extent of
the Available Commitment described in Exhibit K hereto.
(b) The Borrowers shall prepay the Advances as follows:
(i) an amount equal to one hundred percent (100%) of all proceeds
(net of Taxes and reasonable expenses in connection with the sale) from
the sale of any assets by the Borrowers in excess of One Hundred Thousand
Dollars ($100,000) in any one transaction or Five Hundred Thousand
Dollars ($500,000) in any calendar year; such prepayment to be made not
later than the date of such sale; any such prepayments shall be applied
ratably among all Advances of the Banks as follows (v) first, to repay to
the last installment due in respect of Advances for Facility B on the
Maturity Date and then pro rata over the remaining Principal Payment
Dates for Facility B, (w) second, to reduce Advances under Facility A to
the last installment due in respect of Advances (x) third, for Facility F
on the Maturity Date and
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then pro rata over the remaining Principal Payment Dates for Facility F,
fourth, and (y) to the extent that the Borrowers have terminated the
Commitment under Facility A, to be deposited to the Cash Collateral
Account as security for Facility C and Facility D; and
(ii) an amount as shall be necessary to comply with the provisions
of Section 5.01(e); such prepayment to be applied first to Advances
outstanding in respect of Facility B, and then to Advances outstanding in
respect of Facility A and Facility F in inverse order of maturity and
ratably among the Banks.
(c) If it shall become unlawful for any Bank to continue to fund or
maintain any Advance or to perform its obligations hereunder, such Bank shall
notify and consult with the Borrowers and the Administrative Agent before making
any demand under this Section 2.05(c), and such Bank and the Administrative
Agent shall use all reasonable efforts to change its lending office or take
other measures so that it can perform its obligations hereunder; provided that
neither such Bank nor the Administrative Agent shall be obligated to change its
lending office or take any other measures if in its sole reasonable judgment it
would be disadvantageous to do so. If such Bank does not change its lending
office because it determines in its sole reasonable judgment that it is
disadvantageous to do so or because such change would not render such Advance
lawful, then such Bank shall notify the Administrative Agent and the Borrowers,
as the case may be, and shall make an Advance, and the Borrowers shall borrow
such Advance, at a rate based on the Alternate Base Rate in an amount equal to
the amount of the Advance currently outstanding and made by such Bank to the
Borrowers, if in the sole reasonable judgment of such Bank such Advance can
lawfully be extended at a rate based on the Alternate Base Rate. Simultaneously
with making such Advance at a rate based on the Alternate Base Rate, the Advance
then outstanding made available by such Bank to the Borrowers shall be repaid
with accrued interest thereon to the date of payment. If any Bank makes an
Advance at a rate based on the Alternate Base Rate to the Borrowers pursuant to
this Section, the Borrowers may prepay such Advance made by such Bank, without
penalty, at any time upon five Business Days notice. If despite such Bank's
compliance with the preceding provisions of this Section 2.05(c), or if the
Borrowers shall refuse to borrow an Advance at a rate based on the Alternate
Base Rate as herein provided, and if it shall become unlawful for any Bank to
fund or maintain any Advance or perform its obligations hereunder, upon demand
by such Bank, the Borrowers shall prepay in full the outstanding Advance made by
such Bank, with accrued interest thereon and all other amounts payable by the
Borrowers hereunder, and upon such demand or any notice of prepayment the
obligation of such Bank to make any Advance to the Borrowers shall terminate.
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(d) (1) If a Total Loss occurs, the Borrowers shall give prompt written
notice to the Administrative Agent of such Total Loss. Unless the Borrowers
provide a Substitute Vessel under Section 2.05 (d)(3) and to the extent
necessary to comply with Section 5.01(e), not more than 120 days (the "Loss
Termination Date") after the date such Total Loss occurred, the Borrowers shall
pay to or to the order of the Administrative Agent, the sum of (a) the product
of the then outstanding principal amount of the Notes multiplied by a fraction,
in which the numerator is the Fair Market Value of the Vessel subject to the
Total Loss as determined by the last appraisal obtained pursuant to Section
1.03 prior to such Total Loss and the denominator is the aggregate Fair Market
Value similarly determined for all Mortgaged Vessels immediately prior to such
Total Loss, (b) accrued and unpaid interest on the Notes being prepaid through
the Loss Termination Date, (c) an amount equal to all out-of-pocket third party
expenses (including legal and investigatory fees) incurred by and not otherwise
reimbursed to, the Administrative Agent or the Banks in connection with the
occurrence of the Total Loss, as set forth in a certificate of the
Administrative Agent to be delivered to the Borrowers not less than five
Business Days prior to the Loss Termination Date, and (d) any other amounts
which have become due and payable under the Loan Documents but shall not have
been paid prior to the Loss Termination Date minus the sum of all insurance
proceeds actually received by the Administrative Agent in connection with such
Total Loss. All prepayments received after such Total Loss shall be applied as
provided in Section 6.02 hereunder.
(2) If a Total Loss occurs, the Borrowers, not less than 30 days before
the Loss Termination Date, may notify the Administrative Agent of their
intention to replace the Vessel constituting the Total Loss with a substitute
vessel (the "Substitute Vessel"). Prior to or at the time of any substitution
under this Section, the Borrowers will at their own expense and cost furnish
the Administrative Agent with a satisfactory appraisal of the proposed
Substitute Vessel. If the Administrative Agent and the Banks in their
reasonable discretion, have agreed to permit the substitution, the Borrowers at
their own cost and expense shall cause a Mortgage covering the Substitute
Vessel to be duly executed and recorded at the Home Port of the Substitute
Vessel and shall make such amendments to the Loan Documents and Security
Documents as the Administrative Agent shall deem necessary or desirable to
reflect such substitution.
(3) If the Fair Market Value of the Substitute Vessel is less than the
Fair Market Value of the Vessel which constituted such Total Loss, the
Borrowers may grant the Administrative Agent on behalf of the Banks a perfected
first priority security interest in additional collateral satisfactory to the
Administrative Agent and the Banks, in their sole discretion, the Fair Market
Value of which (as determined by an appraisal of the type described in Section
1.03) shall be added
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to the Fair Market Value of the Substitute Vessel for the purposes of complying
with Section 5.01(e)(ii).
(4) If the Banks, in their sole discretion, permit the sale or other such
disposition of any Mortgaged Vessel and if as a result of such sale or
disposition the Borrowers no longer comply with Section 5.01(e)(ii), then all
proceeds of such sale or disposition shall be paid to the Administrative Agent
and the Administrative Agent shall apply all such proceeds to the payment of
all such amounts payable as if in respect of a Total Loss of such Vessel
pursuant to subsection (d)(1) above.
(e) If at any time the Borrowers shall, or may reasonably be expected to,
be required to deduct and withhold, or indemnify any Bank with respect to, any
Taxes (as defined in Section 2.09) (in each case, as evidenced by an opinion
reasonably satisfactory in form and substance to the Borrowers, the
Administrative Agent, the Letter of Credit Agent and the Banks from independent
tax counsel reasonably satisfactory to the Borrowers, the Administrative Agent,
the Letter of Credit Agent and the Banks) the Borrowers, upon at least four
Business Days' notice to the Administrative Agent and the Banks, may prepay at
any time, pro rata, the outstanding principal amount of each Advance, in whole
or in part, together with accrued interest to the date of prepayment on the
amount prepaid and all other amounts, including without limitation Breakage
Costs, then payable to the Banks by the Borrowers; provided that, if such Taxes
relate to payments to fewer than all the Banks (the "Affected Banks"), the
Borrowers, upon at least four Business Days' notice to the Administrative Agent
and the Affected Banks, may prepay, in whole or in part, pro rata (except as
set forth in the following provision), the outstanding principal amount of
Advances made by the Affected Banks, with accrued interest thereon and all
other amounts payable to the Affected Banks by the Borrowers (without
prepayment any portion of any Advance made by any Bank that is not any Affected
Bank); provided further, that if the rate of Taxes with respect to any Affected
Bank is higher than with respect to another Affected Bank, the Borrowers may
prepay any portion of the Advance made by the former Affected Bank without
prepaying any portion of the Advance made by the latter Affected Bank. The
Administrative Agent shall give prompt written notice to the Banks of any
prepayments made under this paragraph (e). No amount of principal paid or
prepaid, as the case may be, may be reborrowed except as otherwise explicitly
provided in this Agreement. Prepayments shall be applied first to outstanding
interest and Breakage Costs, if any, and then to installments of outstanding
principal in inverse order of maturity, except as otherwise expressly provided
herein.
SECTION 1.026 Increased Costs; Additional Interest. (a) If on or after the
Closing Date due to (i) the introduction of or any change (including, without
limitation, any change by way of imposition or increase of reserve or capital
adequacy requirements) in, or in the interpretation of, any law or
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regulation, or (ii) the compliance by any Bank with any guideline or request
(including, with respect to reserve and capital adequacy requirements, those
Applicable Laws, policies, guidelines and directives and interpretations in
effect on the Closing Date) from any central bank or other governmental
authority, whether or not having the force of law, there shall be any increase
in the cost to, or reduction in the return on capital of any Bank in
consequence of, any Bank agreeing to make or making, funding or maintaining an
Advance, then the Borrowers shall from time to time, upon demand by such Bank,
pay to such Bank additional amounts sufficient to indemnify such Bank against
such increased cost (without duplication of any amounts pursuant to Section
2.06(b) herein).
(b) If any Bank shall determine that reserves under Regulation D of the
Board of Governors of the Federal Reserve System, as in effect from time to
time, are required to be maintained by it in respect of, or a portion of its
costs of maintaining reserves under Regulation D is properly attributable to,
one or more of its Advances, such Bank shall, subject to the provisions of
Section 2.06(d) below, give notice to the Borrowers, together with a
certificate as described below in Section 2.06(c) and the Borrowers, as the
case may be, shall pay to such Bank additional interest on the unpaid principal
amount of each such Advance, payable on the same day or days on which interest
is payable on such Advance, at an interest rate per annum equal at all times
during each Interest Period for such Advance to the excess of (i) the
Applicable Margin plus the rate obtained by dividing the LIBOR Rate for such
Interest Period by a percentage equal to 100% minus the Reserve Percentage
(defined in the next sentence), if any, applicable during such Interest Period
over (ii) the LIBOR Rate for such Interest Period. The "Reserve Percentage"
for any such period, with respect to any Advance, means the reserve percentage
applicable thereto under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York City with respect to (i) liabilities or
assets consisting of or including eurocurrency liabilities, as defined in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time, and having a term equal to any such period, or (ii)
any other category of liabilities which includes deposits by reference to which
the interest rate on such Advance is determined and which have a term equal to
any such period.
(c) If any Bank determines that compliance with any law or regulation or
any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) affects or would affect the amount of
capital required or expected to be maintained by the Bank or any corporation
controlling the Bank and that the amount of such capital is increased by or
based upon the existence of the Bank's
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commitment to lend hereunder and other commitments of this type, then, upon
demand by the Bank made in accordance with the provisions of Section 2.06(d)
hereof, the Borrowers shall immediately pay to the Bank, from time to time as
specified by the Bank in a certificate delivered to the Borrowers, additional
amounts sufficient to compensate the Bank or such corporation in the light of
such circumstance, to the extent that the Bank reasonably determines such
increase in capital to be allocable to the existence of the Bank's commitment
to lend hereunder. A certificate as to the amount of any such increased cost,
increased interest or reduced return under this Section 2.06, submitted to the
Borrowers and the Administrative Agent by such Bank, setting forth calculations
in reasonable detail shall be conclusive and binding for all purposes, absent
manifest error.
(d) Before making any demand under this Section 2.06, the Bank shall
consult with the Borrowers and the Administrative Agent and such Bank and the
Administrative Agent shall designate as to itself a different lending office or
take such other measures if such designation or measures would avoid the need
for, or reduce the amount of such increased cost or interest, provided that
neither such Bank nor the Administrative Agent shall be obliged to change its
lending office or take any other measures if in its sole reasonable judgment it
would be disadvantageous to do so.
(e) The Borrowers may, upon at least four Business Days' notice to the
Administrative Agent and any such Bank requesting payment of any amounts
pursuant to this Section 2.06, prepay the outstanding principal amount of each
Advance together with accrued interest to the date of prepayment on the amount
prepaid and all other amounts, including without limitation Breakage Costs, if
any, then payable to such Bank by the Borrowers.
SECTION 1.027 Letter of Credit. (a) Subject to the terms and conditions of
this Agreement, the Letter of Credit Agent, in reliance on the Agreements of the
Banks set forth in Section 2.07(f), agrees to issue:
(i) a Letter of Credit in respect of Facility C for the account of
the Borrowers on the Closing Date and on each Letter of Credit Renewal
Date in such form as may be approved from time to time by the Letter of
Credit Agent; and
(ii) one or more Letters of Credit in respect of Facility D for the
account of the Borrowers on a Letter of Credit Closing Date and on each
Letter of Credit Renewal Date in such form as may be approved from time
to time by the Letter of Credit Agent.
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(b) (i) The stated amount of a Letter of Credit in respect of Facility C
shall not exceed the following except to the extent cash collateral has been
provided pursuant to Section 5.01(o):
Facility C Letter of Credit
Date Maximum Face Amount
---- -------------------
September 30, 1994 $5,600,000
January 15, 1999 60% of Original Stated Amount
January 15, 2000 Zero (0).
(ii) The aggregate stated amount of all issued and outstanding Letters of
Credit (including Unreimbursed Letter of Credit Obligations) in respect of
Facility D shall not exceed Six Million United States Dollars (US $6,000,000)
at any one time. Subject to the Six Million United States Dollar limit imposed
in the preceding sentence, Letters of Credit in respect of Facility D may be
issued only to the extent that the aggregate stated amount (including
unreimbursed Letter of Credit Obligations, if any) of such Letters of Credit
shall be equal or less than (x) the sum of the aggregate amounts available to
be drawn in respect of Facility A minus (y) the sum of the outstanding Advances
in respect of Facility A. The amounts that may be drawn and are permitted to
be outstanding in respect of Facility A are reduced by the aggregate stated
amounts of all Letters of Credit issued and outstanding pursuant to Facility D.
The aggregate stated amounts of all Letters of Credit issued and outstanding
under Facility D shall not include any expired or canceled Letters of Credit
which have been issued under Facility D unless the expired or canceled Letters
of Credit constitute Unreimbursed Letter of Credit Obligations.
(c) Any Letter of Credit shall be subject to the Uniform Customs and, to
the extent not inconsistent, with the laws of the state in which the principal
office of the Letter of Credit Agent is located.
(d) The Letter of Credit Agent shall not be obligated to issue any Letter
of Credit hereunder if (x) such issuance would conflict with, or cause the
Letter of Credit Agent to exceed any limits imposed by Applicable Law; or (y)
if the Letter of Credit by its terms, expires after the applicable Maturity
Date.
(e) The Borrowers may request that the Letter of Credit Agent issue a
Letter of Credit by delivering to the Letter of Credit Agent and the
Administrative Agent an Application completed to the satisfaction of the Letter
of Credit Agent, the certificate referred to in Section 3.02 dated the date of
such Application and such other certificates, documents and other papers and
information as may be customary for a letter of credit of the kind being
requested and as the Letter of Credit Agent may
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reasonably request. Upon receipt of the Application, and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures, the Letter of Credit
Agent shall promptly issue any Letter of Credit requested thereby issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise
may be agreed by the Letter of Credit Agent and the Borrowers.
(f) (i) Effective on the date of issuance of a Letter of Credit, the
Letter of Credit Agent irrevocably agrees to grant and hereby grants to each
Bank, and each Bank irrevocably agrees to accept and purchase and thereby
accepts and purchases from the Letter of Credit Agent, on the terms and
conditions hereinafter stated, for such Bank's own account and risk an
undivided participation equal to such Bank's Percentage Interest in the
Facility relating to such Letter of Credit and in the Letter of Credit Agent's
obligations and rights under such Letter of Credit issued by the Letter of
Credit Agent and the amount of each draft paid by the Letter of Credit Agent
thereunder. Each Bank unconditionally and irrevocably agrees with the Letter
of Credit Agent that, if a draft is paid whether prior to the Maturity Date or
after the Maturity Date, under any Letter of Credit for which the Letter of
Credit Agent is not reimbursed in full by the Borrowers in accordance with the
terms of this Agreement, each Bank shall pay to the Letter of Credit Agent upon
demand at the Lending Office an amount equal to such Bank's Percentage Interest
of the unreimbursed amount of such draft or any part thereof. The Banks'
obligations hereunder shall be absolute without regard to the occurrence of any
Default or Event of Default, the lapsing of Maturity Date or the occurrence of
any other condition precedent whatsoever.
(ii) If the Letter of Credit Agent does not receive any payment from a
Bank required under this section on the date such payment is due, such Bank
shall pay to the Letter of Credit Agent, on demand, an amount equal to the
product of (x) such amount, and (y) the daily average Federal Funds Rate during
the period from and including the date such payment is required to the date on
which such payment is immediately available to the Letter of Credit Agent
multiplied by (z) a fraction the numerator of which is the number of days that
have elapsed during such period and the denominator of which is 360. If any
unreimbursed amount required to be paid by any Bank pursuant to this Section is
not made available to the Letter of Credit Agent by such Bank within three
Business Days after the date such payment is due, the Letter of Credit Agent
shall be entitled to recover from such Bank, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to Base Rate Advances hereunder. A certificate of the Letter of Credit Agent
submitted to any Bank with respect to any amounts owing under this Section
shall be conclusive in the absence of manifest error.
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(iii) If, at any time after the Letter of Credit Agent has paid a draft
under a Letter of Credit and has received from any Bank its pro rata share of
such payment in accordance with this Section, the Letter of Credit Agent
receives any payment (excluding any fees and other amounts paid pursuant to
Section 2.07(g)) related to such Letter of Credit (whether directly from the
Borrowers or otherwise, including proceeds of collateral applied thereto by the
Administrative Agent), or any payment of interest on account thereof, then the
Letter of Credit Agent shall pay to the Administrative Agent, for the account
of such Bank, its pro rata share thereof; provided, however, that if any such
payment received by the Letter of Credit Agent is required to be returned by
the Letter of Credit Agent, such Bank shall return to the Administrative Agent
for the account of the Letter of Credit Agent, the portion thereof previously
distributed to such Bank.
(g) The Letter of Credit Agent shall notify the Borrowers of the date and
amount of any draft presented under a Letter of Credit. The Borrowers agree to
reimburse the Letter of Credit Agent on each such date for all amounts paid by
the Letter of Credit Agent for the account of (i) such drafts so paid and (ii)
any Taxes, fees, charges or other costs or expenses incurred by the Letter of
Credit Agent in connection with such payment. Each payment shall be made to
the Letter of Credit Agent at its address for notices specified herein and in
lawful money of the United States and immediately available funds. Interest
shall be payable on any or all amounts remaining unpaid by the Borrowers under
this subsection from the date such amounts become payable until payment in full
at the rate which will be payable on Base Rate Advances at such time.
(h) Each of the Borrowers' obligations under this Section shall be
absolute and unconditional under any and all circumstances and without setoff,
counterclaim or defense to payment which any Borrower may have or have had
against the Letter of Credit Agent or any beneficiary of a Letter of Credit.
Each of the Borrowers also agrees with the Letter of Credit Agent that the
Letter of Credit Agent shall not be responsible for, and that the Borrowers'
obligations under this Section shall not be affected by, among other things,
the validity or genuineness of documents or any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged
or any dispute between or among the Borrowers and any beneficiary of a Letter
of Credit or any other party to which such Letter of Credit may be transferred
or any claims whatsoever of the Borrowers against any beneficiary of a Letter
of Credit or any such transferee. The Letter of Credit Agent shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with a
Letter of Credit, except for errors or omissions caused by the Letter of Credit
Agent's gross negligence or willful misconduct. The Borrowers agree that any
action taken or omitted by the Letter of Credit Agent in
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connection with a Letter of Credit or the related drafts or documents, if done
in the absence of gross negligence or willful misconduct and in accordance with
the standards of care specified in the Uniform Commercial Code of the state in
which the principal office of the Letter of Credit Agent is located, shall be
binding on the Borrowers and shall not result in any liability of the Letter of
Credit Agent to the Borrowers.
(i) If any draft shall be presented for payment of a Letter of Credit, the
Letter of Credit Agent shall promptly notify the Borrowers, the Banks and the
Administrative Agent of the date and amount thereof. The responsibility of the
Letter of Credit Agent to the Borrowers in connection with any draft presented
for payment under a Letter of Credit shall, in addition to any payment
obligation expressly provided in a Letter of Credit, be limited to determining
that the documents (including each draft delivered under a Letter of Credit in
connection with such presentment) are in conformity on their face with such
Letter of Credit.
(j) To the extent that any provision of the Application, including any
reimbursement provisions contained therein, related to a Letter of Credit is
inconsistent with the provisions of this Section, the provisions of this
Section shall prevail.
SECTION 1.028 Payments and Computations. (a) The Borrowers shall make
each payment hereunder and under any instrument and other Loan Document
delivered hereunder (except as otherwise provided in any such instrument) due
to any Bank or the Administrative Agent not later than 12:00 noon New York City
time on the date when due, without set off or counterclaim, in lawful and
freely transferable United States Dollars to the Administrative Agent at the
Lending Office for the account of the Administrative Agent in same day funds.
The Administrative Agent shall promptly disburse to the Banks funds of such
type as it shall have received in the manner provided by this Agreement.
(b) The Borrowers hereby authorize the Administrative Agent and each Bank,
if and to the extent payment is not made when due hereunder or under any
instrument delivered hereunder and the Borrowers have been given, or otherwise
have, notice thereof, to charge from time to time against any or all of the
Borrowers' accounts with the Administrative Agent or the Banks, as the case may
be, any amounts so due, provided that, so long as a Default or Event of Default
has occurred and is continuing, no such notice to the Borrowers shall be
required. The Borrowers further agree that not later than 12:00 noon (New York
City time) on each day on which a payment is due hereunder with respect to the
Advance or under any Note, it will have in its account maintained with the
Administrative Agent in New York City a credit balance at least equal to the
total amount so due on such day.
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(c) All computations of interest and fees shall be made by the
Administrative Agent, the Letter of Credit Agent and the Banks on the basis of
a year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fee
is payable except that interest in respect of the Base Rate shall be calculated
on the basis of actual days elapsed over a 365/366 day year.
(d) Whenever any payment to be made hereunder or under the Loan Documents
shall be stated to be due, or the Interest Payment Date would otherwise occur
on a day other than a Business Day, such payment shall be made, and the
Interest Payment Date shall occur, on the next succeeding Business Day, and any
such extension of time shall in all cases be taken into account in the
computation of payment of interest due hereunder or otherwise; provided,
however, if such extension would extend the Maturity Date or would cause such
payment to be made, or, in respect of an Interest Payment Date for any Advance
bearing interest at a rate based on the LIBOR Rate, to occur in a new calendar
month, such payment shall be made, and the Interest Payment Date shall occur on
the preceding Business Day.
(e) All parties to this Agreement acknowledge and agree that the
Obligations shall be automatically decreased (without any further action of any
Person being required) to the extent of any amounts received pursuant to
Section 2.08(a) hereof by the Administrative Agent, the Mortgagee or any of the
Banks under the Security Documents, as the case may be, which amounts the
Administrative Agent or the Banks, as the case may be, may freely apply or
cause to be applied to the repayment of the Obligations as provided in the Loan
Documents. Except as otherwise expressly provided in the preceding sentence,
the Security Documents shall not in any way negate or adversely affect the
liabilities and Obligations which the Borrowers and any other party have under
this Agreement and the other Loan Documents to the Banks, the Letter of Credit
Agent or the Administrative Agent.
SECTION 1.029 Taxes. (a) Any and all payments made by the Borrowers under
this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future Taxes, except as
required by Applicable Law. If any Taxes are required by Applicable Law to be
deducted or withheld from any payment hereunder to the Administrative Agent, the
Letter of Credit Agent or any Bank, the Borrowers shall (i) promptly notify the
Administrative Agent, the Letter of Credit Agent or such Bank, as applicable, of
such requirement, (ii) deduct or withhold the full amount of such Taxes in a
timely manner and pay such Taxes in a timely manner to the appropriate
authorities, (iii) promptly forward to the Administrative Agent for its own
account, the Letter of Credit Agent for its own account or the account of such
Bank, as applicable, an official receipt or certified copy thereof or other
documentary evidence
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satisfactory to the Administrative Agent, Letter of Credit Agent or such Bank
evidencing such payment and (iv) except in the case of Bank Taxes, pay such
additional amounts so that the amount received by the Administrative Agent, the
Letter of Credit Agent or such Bank with respect to such payment, after the
payment of such Taxes (including any Taxes on such additional amounts), equals
the full amount such Administrative Agent, the Letter of Credit Agent or such
Bank would have otherwise received with respect to such payment had no
deduction or withholding been required. Further, if any Taxes (other than Bank
Taxes) are asserted directly against the Administrative Agent, Letter of Credit
Agent or any Bank with respect to any payment hereunder to the Administrative
Agent, the Letter of Credit Agent or such Bank, the Administrative Agent, the
Letter of Credit Agent or such Bank may pay such Taxes and the Borrower shall
promptly pay such additional amounts (including any penalties, interest or
expenses) so that the amount received by the Administrative Agent, Letter of
Credit Agent or such Bank, after the payment of such Taxes (including any Taxes
on such additional amounts), equals the full amount the Administrative Agent,
the Letter of Credit Agent or such Bank would have otherwise received had no
such Taxes been asserted. If the Borrower fails to pay to the appropriate
authority any Taxes when due or fails to remit to the Administrative Agent, the
Letter of Credit Agent or such Bank, as applicable, the required receipts
evidencing payment of such Taxes, the Borrowers shall indemnify the
Administrative Agent, the Letter of Credit Agent or such Bank for any Taxes
that may become payable as a result of such failure.
(b) The Borrowers shall not be required to pay any additional amounts to
the Administrative Agent, Letter of Credit Agent or any Bank in respect of
United States federal withholding taxes pursuant to Section 2.09(a) above if
the obligation to pay such additional amounts would not have arisen but for a
failure by such Bank to comply with the provisions of Section 2.09(c). In the
event the Borrowers have actual knowledge that they are required to, or there
arises, in the Borrowers' reasonable opinion, a substantial likelihood that the
Borrowers will be required to, pay an increased amount or otherwise indemnify
the Administrative Agent, the Letter of Credit Agent or any Bank for or on
account of any Taxes pursuant to Section 2.09(a), the Borrowers shall promptly
notify the Administrative Agent, the Letter of Credit Agent and such Bank of
the nature of such Taxes and shall furnish such information to the
Administrative Agent, the Letter of Credit Agent and such Bank as the
Administrative Agent, the Letter of Credit Agent or such Bank may reasonably
request. In the event the Borrowers provide the notice described in the
preceding sentence, the Borrowers, the Administrative Agent, the Letter of
Credit Agent and each relevant Bank shall consult in good faith to determine
what may be required to avoid or reduce such Taxes and shall each use
reasonable efforts to avoid or reduce such Taxes (so long as such efforts
result in no incremental costs to the Administrative Agent, the Letter of
Credit Agent or such Bank, do not modify the terms of repayment
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of the Loans or materially disadvantage the Administrative Agent, the Letter of
Credit Agent or such Bank).
(c) Prior to the first payment to the Administrative Agent, the Letter of
Credit Agent or any Bank under this Agreement, each Bank that is not
incorporated under the laws of the United States, any State thereof or the
District of Columbia shall deliver to the Borrowers and the Administrative
Agent (i) two duly completed copies of United States Internal Revenue Service
Form 1001 or Form 4224 (or applicable successor form and any related forms as
may from time to time be adopted to document a claim to which such form
relates) and (ii) a duly completed copy of United States Internal Revenue
Service Form W-8 or W-9 (or applicable successor form and any related forms as
may from time to time be adopted to document a claim to which such form
relates). Such Bank shall certify that (x) in the case of any form provided
pursuant to clause (i) of the preceding sentence it is entitled to receive
payments hereunder without deduction or withholding of any United States
federal income taxes and (y) in the case of any form provided pursuant to
clause (ii) of the preceding sentence it is entitled to receive payments
hereunder without deduction or withholding of any United States federal backup
withholding taxes. Each such Bank also agrees to deliver further copies of
said Form 1001, 4224, W-8 or W-9 (or applicable successor form and any related
forms as may from time to time be adopted to document a claim to which such
form relates), and any related certification as described in the preceding
sentence, as the case may be, (i) on or before the date that any such form
previously provided expires or becomes obsolete, (ii) after the occurrence of
any event requiring a change in the most recent form previously provided
unless, in any case, an event (including, without limitation, any change in a
treaty, law or regulation) has occurred prior to the date on which delivery
would otherwise be required that renders all such forms inapplicable or that
would prevent such Bank from duly completing and delivering any such form with
respect to it and such Bank so advises the Borrowers and the Administrative
Agent and the Letter of Credit Agent and (iii) upon reasonable request of the
Borrower.
(d) The Borrowers will indemnify the Administrative Agent and each Bank
for the full amount of Taxes (other than Bank Taxes) payable by the
Administrative Agent or such Bank, as the case may be, on any and all payments
made hereunder or on any instrument delivered hereunder and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date the Administrative
Agent or the Bank, as the case may be, makes written demand therefor with
appropriate supporting documentation. The Administrative Agent or the Bank, as
the case may be, to the extent practicable, shall notify the Borrowers before
paying, or requiring the Borrowers to pay, any such Tax.
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(e) Within 30 days after the date of any payment of Taxes, the Borrowers
will deliver to the Administrative Agent and each Bank satisfactory evidence of
payment thereof. If no Taxes are payable in respect of any payment, the
Borrowers will, at the reasonable request of the Administrative Agent on behalf
of any Bank, as the case may be, deliver to the Administrative Agent a
certificate from each appropriate taxing authority or any political subdivision
thereof, or an opinion of counsel acceptable to the Administrative Agent, in a
form reasonably acceptable to the Administrative Agent, stating, or other
satisfactory evidence, that such payment is exempt from or not subject to
Taxes.
(f) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in subsections (a) through (f) of this Section 2.09 shall survive the payment
in full of the Obligations and the expiry of the Loan Documents.
SECTION 2.10 Fees. (a) On the Effective Date, the Borrowers shall pay
solely for the account of each Bank on the Effective Date $[ ] representing the
aggregate amount of any Commitment Fees and other fees owed the Banks accruing
prior to the Effective Date. The Borrowers shall pay the Administrative Agent,
solely for the account of each Bank, on the date which is three months from the
Effective Date and quarterly thereafter, a non-refundable commitment fee (as to
each Bank, its "Commitment Fee") of one-half of one percent (1/2%) per annum of
each such Bank's respective Commitment daily in respect of the unused portion of
the Bank's Commitment. The Commitment Fee shall be calculated quarterly in
arrears from the Effective Date. Notwithstanding anything to the contrary
contained in this Agreement or in any other agreement, each Bank's Commitment
Fee and the fees described in the first sentence of this subsection shall be
solely for the account of such Bank.
(b) The Borrowers shall pay the Co-Agents for their own accounts on the
Closing Date, and not later than the anniversary of such date of each year
thereafter so long as any amount payable by the Borrowers hereunder remains
outstanding, an annual agency fee in an amount mutually agreed between them.
(c) (i) The Borrower shall pay a letter of credit fee to the
Administrative Agent for the account of the Letter of Credit Agent. Upon
receipt of the letter of credit fee, the Letter of Credit Agent shall
distribute such fee to the Banks pro rata and without deduction. The letter of
credit fee shall be at the per annum rate equal to the Applicable Margin for
the LIBOR Rate (as determined in Section 2.04(b)(iii) on the average daily
aggregate amount available to be drawn under the Letter of Credit for the
period for which the fee is calculated. Such fee shall accrue from the date on
which the Letter of Credit is issued and shall be payable quarterly in arrears
commencing on December 31
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and quarterly thereafter until the termination of the Letter of Credit.
(ii) In addition to the foregoing fees and commissions, the Borrowers
shall pay or reimburse the Letter of Credit Agent for such normal and customary
costs and expenses as are incurred or charged by the Letter of Credit Agent in
issuing, effecting payment under or amending any Letter of Credit.
(d) On the Agreement Date, the Borrowers shall pay to the Administrative
Agent the Amendment and Restatement Fees of Two Hundred Ninety Seven Thousand
Dollars (US$297,000) and New Money Fees of Two Hundred Thousand Five Hundred
Dollars (US$200,500) which Amendment and Restatement Fees and New Money Fees
shall be shared by the Banks according to their respective Percentage
Interests.
SECTION 2.11 Optional Reduction. Upon at least four Business Days' notice,
the Borrowers shall have the right to terminate, in whole or in part, the
undrawn portion of Facility A. Any such partial terminations shall be in a
minimum amount of Two Hundred Fifty Thousand Dollars (US$250,000) and integral
multiples thereof. Reductions shall be applied ratably among the Banks'
Commitments. Once terminated, the Borrowers shall have no right to reinstate
such terminated Commitment.
ARTICLE III.
CONDITION PRECEDENT
SECTION 1.031 Conditions Precedent to an Advance on the Agreemenet Date.
(a) The obligations of the Banks to make an Advance on the Agreement Date is
subject to the conditions precedent that the Administrative Agent, the Letter
of Credit Agent and the Banks shall have received on or before such Date, the
following in form and substance satisfactory to the Administrative Agent, the
Letter of Credit Agent and the Banks:
(i) The Agreement, and the Notes each duly executed by the
Borrowers.
(ii) Each of the Security Documents, duly executed by the parties
thereto.
(iii) A certificate of each of the Secretary or an Assistant
Secretary of each of the Borrowers, dated such Date, as follows: (A)
certifying the Board of Directors has authorized, and approved the
Transaction, the Second Offering, the Loan Documents and all the other
transactions contemplated in and by this Agreement; (B) attaching a copy
of the organizational documents of such Borrowers certified by an
official of the relevant Incorporation Jurisdiction;
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(C) and attaching evidence of the good standing of such Borrowers in its
Incorporation Jurisdiction.
(iv) Copies of the Acquisition Documents.
(v) A certificate of each of the Secretary or an Assistant
Secretary of each Borrower dated such date, certifying the names and true
signatures of the officers of such Borrower who are fully authorized to
sign the Agreement and the other Loan Documents, and any other document
to be delivered by or in respect of such Borrowers hereunder.
(vi) Proper financing statements or other filings, duly executed by
each of the Borrowers under the Uniform Commercial Code or Applicable Law
of all jurisdictions as the Administrative Agent may deem necessary or
desirable in order to perfect the security interests created by the
Security Documents in the Collateral covered thereby.
(vii) Favorable opinions of Messrs. ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, and
Panamanian counsel, special counsel for the Borrowers, dated such Date,
in form and as to such matters as the Administrative Agent, the Letter of
Credit Agent and the Banks may request.
(viii) A favorable opinion of Messrs. Winthrop, Stimson, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, special counsel for the Administrative Agent, the Letter of
Credit Agent and the Banks, in form and substance satisfactory to the
Administrative Agent, the Letter of Credit Agent and the Banks.
(ix) Evidence that all other actions have been taken which are
necessary or, in the opinion of the Administrative Agent, desirable, to
perfect or protect the first priority Liens in favor of the
Administrative Agent or the Mortgagee for the benefit of the Banks in the
Collateral.
(x) Each of the Banks shall be satisfied with the final terms and
conditions of the transactions contemplated by the Second Offering,
including without limitation all legal and tax aspects thereof; all
documentation relating to such transactions shall be in form and
substance satisfactory to the Banks; and a copy certified, as true and
complete by the Secretary or an Assistant Secretary of Hvide, of each
such document or filing as of such Date (together with all documents and
consents, if any, to be delivered under each thereof), together with all
exhibits, schedules and other documents furnished in connection
therewith, and the opinions of counsel, if any, delivered to the
Borrowers thereunder, together with a letter of such
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counsel addressed to the Banks to the effect that they each may rely upon
such opinions as though an addressee thereof.
(xi) A certificate of the chief financial officer of the Borrowers,
as of the Agreement Date and, to the extent necessary supplemented as of
the Effective Date attaching: (1) a list of all agreements of the
Borrowers and of their Subsidiaries relating to any Indebtedness of the
Borrowers or any Subsidiary, which Indebtedness, singly or in the
aggregate, equals or exceeds Five Hundred Thousand Dollars ($500,000),
specifying the amount of Indebtedness outstanding and which may be
outstanding under each such agreement; (2) a list of all consensual Liens
and known Liens for Taxes, assessments or other governmental charges or
levies, in each case on any vessel or other properties or assets of any
kind, real or personal, tangible or intangible, of the Borrowers or any
of its Subsidiaries; (3) a list of any other Liens on any vessel or other
properties or assets of any kind, real or personal, tangible or
intangible, of the Borrowers or any of its Subsidiaries, having a value
in each case equal to or greater than Five Hundred Thousand Dollars
($500,000), specifying the amount of such Liens in each case; (4) as to
any Acquisition to be funded by Facility F, the calculations and
supporting documentation required under Section 2.01(iii) to determine
the amount which may be advanced; (5) the calculations and the supporting
documentation evidencing that the Borrowers are, and upon giving effect
to the making of the Loan hereunder shall be in compliance with the
financial covenants contained in Section 5.01(d) and (6) confirming that
the Borrowers are, and immediately upon giving effect to the making of
the Loan hereunder, shall be in compliance with their obligations under
Section 5.01(e).
(xii) As to each Vessel:
(A) evidence satisfactory to the Administrative Agent, that
each Borrower has good title to such Vessel owned by such Borrower
and that each such Vessel is duly documented in the name and
ownership of such Borrower under the laws and flag of the United
States for the trade in which it is to engage or under the laws and
flag of such other Country of Registry as may be approved by the
Administrative Agent at the direction of the Majority Banks, free
of recorded Liens except the Mortgage;
(B) evidence satisfactory to the Administrative Agent, that
such Vessel and such other risks as may be required to be covered
by the terms of the relevant Mortgage have been insured upon terms
and with underwriters in respect of such events as may be
acceptable to the Banks in their reasonable discretion and that the
interest of the Mortgagee in any such
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insurances as assignee has been effected and will be noted by all
underwriters, brokers and mutual clubs and associations concerned;
(C) letters of undertaking and opinions as to insurance
coverage addressed to the Mortgagee and the Banks by relevant
brokers, underwriters and mutual clubs and associations covering
such Vessel's insurance policies and mutual club entries, in each
case reasonably satisfactory to the Mortgagee and the
Administrative Agent;
(D) as to acquired Vessels which are classed, a certificate of
class (dated not more than ten (10) days prior to the date of the
Acquisition) evidencing that such Vessel is in class and classed in
the highest classification for vessels of the same age and type by
a classification society reasonably acceptable to the Banks, free
of any outstanding recommendations affecting class;
(E) an appraisal of any such acquired Vessel completed in
accordance with the provisions of Section 1.03 hereof not more than
30 days prior to the date of such Acquisition;
(F) evidence satisfactory to the Administrative Agent that
each of the Mortgages has been duly recorded at the Home Port of
each of the Mortgaged Vessels and constitute a first "Preferred
Mortgage" within the meaning of Chapter 313 of Title 46 of the
United States Code.
(xiii) all governmental and third party consents and approvals
necessary in connection with the Transactions and the transactions
contemplated by the Second Offering shall have been obtained (without the
imposition of any conditions that are not acceptable to the Banks) and
shall be in full force and effect; all applicable waiting periods shall
have expired without any action being taken by any competent authority;
and no law or regulation shall be applicable in the judgment of the Banks
that restrains, prevents or imposes materially adverse conditions upon
the Transactions or transactions contemplated by the Second Offering.
The Banks shall have completed a due diligence investigation of each
Borrower and its Subsidiaries in scope and with results satisfactory to
the Banks; and the Banks shall be satisfied with each Borrower's
management and with the arrangements between the Borrowers and their
respective managements including any management agreements, contracts,
consulting agreements or similar agreements.
(xiv) Each Borrower shall have satisfied the Banks that such
Borrower is in compliance with all material
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environmental statutes and regulations and maintains adequate reserves in
connection therewith, including without limitation if requested a Phase I
report in respect of any facilities to be acquired as part of the
transactions contemplated by the Acquisition Documents.
(xv) The Banks shall be satisfied that each Borrower and each of
their Affiliates shall be able to meet its obligations under all employee
and retiree welfare plans, that each Borrower's and each Affiliates'
employee benefit plans are funded in accordance with the minimum
statutory requirements, that no material "reportable event" (as defined
in ERISA) has occurred as to any such employee benefit plan and that no
termination of, or withdrawal from, any such employee benefit plan has
occurred or is contemplated that could result in a material liability.
(xvi) The Banks (A) shall be satisfied with the terms and
conditions of the Second Offering (B) shall have received a copy
certified as true and complete by the Secretary or an Assistant Secretary
or other appropriate officer of the S-1, the prospectus and all of the
other documents and consents, if any, delivered in connection therewith
(C) shall have received evidence of gross receipt by Hvide of at least
Sixty Five Million Dollars ($65,000,000) in connection with the Second
Offering (D) shall have received evidence that (x) the Senior
Subordinated Note and the Indebtedness related thereto has been retired
and (y) the Junior Subordinated Note have been redeemed or shall be
converted into Class A or Class B shares of Hvide stock, and (E) shall
have received evidence that the Acquisitions as described in Exhibit L
shall have been completed in form and substance acceptable to the Banks.
(xvii) Audited, consolidated financial statements of Hvide as of
December 31, 1995, (as updated on September 30, 1996).
SECTION 1.032 Conditions Precedent to Each Advance and Letter of Credit
Following the Agreement Date. The obligation of the Banks to make each Advance
on a Drawdown Date and the Letter of Credit Agent to renew the Letter of Credit
shall be subject to the conditions precedent in Section 3.01 hereof and the
following additional conditions precedent that on each Drawdown Date or Letter
of Credit Renewal Date:
(a) the following statements shall be true and correct, and the
Administrative Agent on behalf of the Banks shall have received a
certificate signed by a duly authorized officer of the Borrowers and
dated the Drawdown Date of the Advance or Letter of Credit Renewal Date,
as the case may be, to attest that:
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(i) The representations and warranties of the Borrowers
contained in this Agreement, the other Loan Documents are true and
correct on and as of the Drawdown Date, as though made on and as of
such date, and no Default or Event of Default has occurred and is
continuing, or would result from such Advance, Letter of Credit or
the Transaction; and
(ii) The Borrowers are, and immediately upon giving effect to
the making of the Loan hereunder, shall be in compliance with their
obligations under Section 5.01(e) and the financial covenants
contained in Section 5.01(d) hereof;
(b) the Borrowers shall have paid or caused to be paid all fees
required to be paid under this Agreement on prior to such Drawdown Date
or Letter of Credit Renewal Date;
(c) no material adverse change shall have occurred since December
31, 1995 (as updated on September 30, 1996), in the business, operations,
properties, prospects or condition (financial or otherwise) of any of the
Borrowers or their Subsidiaries taken as a whole;
(d) the Advance when added to previous Advances and such Letter of
Credit when renewed are in an aggregate amount not greater than the
aggregate available on undisbursed or undrawn sum of the then available
Commitments of the Banks;
(e) all corporate, organizational or other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by the Loan Documents and the Transaction shall
be satisfactory in form and substance to the Administrative Agent, the
Banks and their counsel;
(f) the Banks shall have received copies of the Acquisition
Documents and the calculations required under Section 2.01(iii) for each
Acquisition;
(g) the Administrative Agent shall have received two notarized
Mortgage Supplements (in the form of Exhibit N hereto), duly executed by
the Borrower which is the owner of any Acquisition which is funded in
whole or in part by an Advance and which is not a Mortgage Vessel but
which is required to be mortgaged pursuant to Section 5.01(m) hereof;
(h) the Administrative shall receive an executed amendment to the
Credit Agreement and such other documentation in connection therewith as
it deems necessary or desirable in connection with an Acquisition; and
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(i) such other approvals, financial information, vessel information,
opinions, or documents as the Banks may reasonably request.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 1.041 Representations and Warranties of the Borrowers. Each of the
Borrowers represents and warrants as follows:
(a) Due Existence; Compliance. Each of the Borrowers is a corporation or
limited partnership duly organized, validly existing and in good standing, where
applicable under the laws of its Incorporation Jurisdiction and has all
requisite power and authority under such laws to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to be
conducted, and to execute, deliver and perform its obligations under the Loan
Documents to which it is, or will be, a party. Each of the Borrowers and its
Subsidiaries is duly qualified or licensed to do business as a foreign
corporation or entity and is in good standing, where applicable, in all
jurisdictions in which it owns or leases property (including vessels), or
proposes to own or lease property (including vessels), or in which the conduct
of its business, and the conduct of its business upon consummation of the
Transaction, requires it to so qualify or be licensed, except to the extent that
the failure to so qualify or be in good standing would have no material adverse
effect on the business, operations, properties, prospects or condition
(financial or otherwise) of any of the Borrowers and its Subsidiaries or the
ability of any such Person to perform its obligations under any of the Loan
Documents to which it is or may be a party. Each of the Borrowers and their
Subsidiaries is in compliance in all material respects with all Applicable Law,
rules, regulations and orders.
(b) Corporation Authorities; No Conflicts. The execution, delivery and
performance by each of the Borrowers of this Agreement, the other Loan Documents
and the Acquisition Documents to which it is or will be a party are within its
corporate or limited partnership powers and have been duly authorized by all
necessary corporate and stockholder approvals or partnership approvals and (i)
do not contravene its organizational documents or any law, rule, regulation,
judgment, order or decree applicable to or binding on any of the Borrowers or
their Subsidiaries and (ii) do not contravene, and will not result in the
creation of any lien under, any provision of any contract, indenture, mortgage
or agreement to which any of the Borrowers or their Subsidiaries is a party, or
by which it or any of its properties are bound.
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(c) Government Approvals and Authorizations. No authorization or approval
or other action by, and no notice to or filing with, any governmental authority
or regulatory body is required for the due execution, delivery and performance
by or enforcement against each of the Borrowers of the Loan Documents or the
Acquisition Documents (except such governmental approvals or authorizations as
have been duly obtained or made and remain in full force and effect).
(d) Legal, Valid and Binding. Each of the Loan Documents and the
Acquisition Documents to which any of the Borrowers is a party is, or upon
delivery will be, the legal, valid and binding obligation of such Borrowers,
enforceable against such Borrowers in accordance with its terms.
(e) Financial Information. The consolidated annual audited balance sheet of
the Borrowers as of December 31, 1995 (as updated on September 30, 1996) and the
related statements of operations and changes in financial position of the
Borrowers for the fiscal year then ended, copies of which have been furnished to
the Administrative Agent, fairly present the consolidated financial condition of
the Borrowers as of such date and the results of the operations of the Borrowers
for the period ended on such date, all in accordance with GAAP consistently
applied. There has been no material adverse change in the business, operations,
properties or condition (financial or otherwise) of any of the Borrowers or any
of its Subsidiaries taken as a whole since December 31, 1995.
(f) Litigation. There is no pending or threatened action or proceeding
affecting any of the Borrowers or any of their Subsidiaries by or before any
court, governmental agency or arbitrator, which may materially adversely affect
the condition, operations, business, prospects, properties or assets of the
Borrowers or their Subsidiaries taken as a whole, or prohibit, limit in any way
or materially adversely affect the consummation of the Transaction, including,
without limitation, the ability of any of the Borrowers or their Subsidiaries to
perform its respective obligations under the Loan Documents or Acquisition
Documents to which it is or may be a party, except as disclosed to the Banks in
Schedule E.
(g) Immunities. None of the Borrowers or any of their Subsidiaries, or the
property of any of them, has any immunity from jurisdiction of any court or from
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under
Applicable Law.
(h) No Taxes. There is no Tax or similar item imposed by the United States,
the States of New York or Florida or any other jurisdiction in which the
Borrowers conduct business, or by any political subdivision of any of the
foregoing, on or by virtue of the execution or delivery or enforcement of this
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Agreement or the Loan Documents or any other document to be furnished
hereunder, including without limitation any document included in the Collateral
or any Acquisition Document.
(i) No Filing. To ensure the legality, validity, enforceability or
admissibility in evidence of this Agreement and the other Loan Documents in each
of the Incorporation Jurisdictions and the States of New York or Florida or any
other jurisdiction in which the Borrowers conduct business, it is not necessary
that any Loan Document, or any other document related to any thereof except the
Mortgages, be filed or recorded with any court or other authority in such
jurisdiction, or that any stamp or similar tax be paid on or with respect to
this Agreement or any of the other Loan Documents.
(j) Loan Document Representations and Warranties. The representations and
warranties of the Borrowers in the Loan Documents were true and correct in all
material respects when made, and are true and correct in all material respects
on the date hereof as if made as of the date hereof.
(k) No Defaults. There does not exist (i) any event of default, or any
event that with notice or lapse of time or both would constitute an event of
default, under any agreement to which any of the Borrowers or any of their
Subsidiaries is a party or by which any of them may be bound, or to which any of
their properties or assets may be subject which default would have a material
adverse effect on the Borrowers and their Subsidiaries taken as a whole, or
would materially adversely affect any of the Borrowers' ability to perform its
obligations under the Loan Documents to which it is or may be a party, or (ii)
any event which is a Default or Event of Default.
(l) Margin Regulations. No part of the proceeds of the Loan will be used
for any purpose that violates the provisions of any of Regulations G, T, U or X
of the Board of Governors of the Federal Reserve System of the United States or
any other regulation of such Board of Governors. Neither the Borrowers nor any
of their Subsidiaries is engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock, within the meaning of
Regulations G, T, U and X issued by the Board of Governors of the Federal
Reserve System of the United States.
(m) Investment Company Act. None of the Borrowers is an "investment
company" or a company "controlled" by an "investment company" (as each of such
terms is defined or used in the Investment Company Act of 1940, as amended) of
the United States.
(n) Taxes Paid. (i) Each of the Borrowers and their Subsidiaries (A) has
filed or caused to be filed, or has timely requested an extension to file or has
received from the relevant governmental authorities an extension to file, all
material tax
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returns which are required to have been filed, and (B) has paid all Taxes shown
to be due and payable on said returns or extension requests or on any
assessments made against it or any of its properties, and all other Taxes, fees
or other charges imposed on it or any of its properties by any governmental
authority (other than those the amount or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
appropriate reserves in conformity with GAAP have been provided on its books);
and (ii) no tax liens have been filed and no claims are being asserted with
respect to any such Taxes, fees or other charges other than those the amount or
validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which appropriate reserves in accordance with
GAAP have been provided on its books.
(o) Disclosure. No representation, warranty or statements made or document
or financial statement provided by any of the Borrowers or any Affiliate or
Subsidiary thereof, in or pursuant to this Agreement, any other Loan Document,
or in any other document furnished in connection with this Agreement, any other
Loan Document or the Transaction, is untrue or incomplete in any material
respect or contains any misrepresentation of a material fact or omits to state
any material fact necessary to make any such statement herein or therein not
misleading.
(p) The Security Documents. The provisions of each of the Security
Documents create in favor of the Administrative Agent or the Mortgagee under the
Master Vessel Trust Agreement for the Banks a valid, binding and enforceable
security interest and Lien in all right, title and interest in the Collateral
therein described, and shall, upon execution by the parties thereto constitute a
fully perfected first priority security interest in favor of the Banks and the
Mortgagee on behalf of the Banks in all right, title and interest in such
Collateral, subject in the case of (x) each Mortgage, to the recordation of the
Mortgage as described in the following sentence, (y) each Earnings Assignment,
to notice being given to charterers and account parties and (z) each Insurance
Assignment to notice being given to underwriters and protection and indemnity
clubs, and their consent being obtained where policy provisions or club rules so
require. Upon execution and delivery of a Mortgage by each of the Borrowers who
are owners of a Mortgaged Vessel and the recordation of a Mortgage in the Home
Port of such Vessel, the Mortgage for each such Vessel will be a first
"preferred mortgage" within the meaning of Chapter 313 of Title 46 of the United
States Code and will qualify for the benefits accorded a "preferred mortgage"
under Chapter 313 of Title 46 of the United States Code and no other filing or
recording or refiling or rerecording or any other act is necessary or advisable
to create or perfect such security interests under such Mortgage or in the
mortgaged property therein described. No consent, approval or authorization of
any Person is necessary or desirable for the realization of the benefits
afforded by the Security Documents or
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for enforcement of the rights and remedies therein contained by the
Administrative Agent, the Mortgagee or the Banks.
(q) Good Title. Each of the Borrowers has good title to its properties and
assets, except for (i) as created hereby and permitted hereunder, existing or
future Liens, security interests, mortgages, conditional sales arrangements and
other encumbrances either securing Indebtedness or other liabilities of any of
the Borrowers or any of their Subsidiaries; (ii) other than in respect of
Collateral, Liens which the Borrowers in their reasonable business judgment has
determined would not be reasonably expected to materially interfere with the
business or operations of the Borrowers or their Subsidiaries as conducted from
time to time, (iii) minor irregularities therein which do not materially
adversely affect their value or utility; and (iv) Liens disclosed in Schedule F.
(r) ERISA. None of the Borrowers nor any of their Subsidiaries, is or has
been subject to, or has any liability, or has incurred any liability of any sort
whatsoever to any Person in respect of any plan within the meaning of, ERISA or
the Code.
(s) Solvency. Each of the Borrowers is on the date hereof, and at all times
will be, Solvent.
(t) Chief Executive Offices. The chief executive offices of the Borrowers
are located at Fort Lauderdale, Florida.
(u) Burdensome Provisions. None of the Borrowers or any of their
Subsidiaries is a party to or bound by any contract or applicable law,
compliance with which will have a materially adverse effect on (a) the Borrowers
and their consolidated Subsidiaries taken as a whole, or (b) any Loan Document
to which any of the Borrowers is a party or (c) the Collateral.
(v) Pari Passu Status. The Obligations of the Borrowers to the Banks under
the Loan Documents will at all times rank at least pari passu in priority of
payment with all of the Borrowers' other Indebtedness.
(w) Citizenship. Each of Hvide and each Borrower owning a Vessel engaged in
the coastwise trade of the United States is a "citizen of the United States"
within the meaning of Section 2 of the Shipping Act, 1916, as amended, for
purposes of engaging in the coastwise trade of the United States.
ARTICLE V.
COVENANTS OF THE BORROWERS
SECTION 1.051 Affirmative Covenants. So long as an Advance or any other
Obligation shall remain unpaid or any Bank shall have any Commitment under this
Agreement, each of the
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Borrowers shall, unless the Administrative Agent on behalf of the Banks shall
otherwise consent in writing in accordance with Section 7.04, comply with each
of the following affirmative covenants:
(a) Compliance With Laws. Each of the Borrowers shall comply, and cause
each of their Subsidiaries to comply, in all material respects with Applicable
Law, and to pay when due all Taxes, assessments and governmental charges imposed
upon it or upon its properties, and all lawful claims and liabilities which, if
unpaid, might by law become a Lien upon its properties, provided, however, that
the Borrowers shall not be required to pay or discharge any such Tax,
assessment, charge or claim that is being contested in good faith by appropriate
proceedings properly instituted, diligently conducted and for which adequate
reserves in conformity with GAAP have been provided. Each of the Borrowers will
take such action and make such payments which may be required by any change in
applicable laws affecting any of the Loan Documents, in whole or in part, so
that it may continue to perform this Agreement, the Loan Documents and the other
related documents in compliance with such laws.
(b) Use of Proceeds. The Borrowers shall use all proceeds of the Advances
under this Agreement for the purposes set out in Recital 1 of this Agreement.
(c) Financial Information; Defaults.
(i) Each of the Borrowers shall promptly inform the Administrative
Agent of any event which is a Default or Event of Default, or any event
which materially adversely affects its ability fully to perform any of its
obligations under any Loan Document, or any Event of Default which has
occurred and is continuing under any material agreement to which such
Borrower or any of its Subsidiaries is a party;
(ii) As soon as the same become available, but in any event within 90
days after the end of each fiscal year, the Borrowers shall deliver to the
Administrative Agent on behalf of the Banks (x) audited consolidated
financial statements of the Borrowers and their Subsidiaries in accordance
with GAAP (y) unaudited consolidating financial statements reconciled to
the audited financial statements and certified by Hvide's Chief Financial
Officer and (z) a certificate of the chief financial officer of Hvide
setting forth an audited calculation of the financial tests specified in
Sections 5.01(d),(e) and Section 5.02 (i) in accordance with GAAP showing
compliance therewith and stating that no Event of Default or Default has
occurred and is continuing, or setting forth in detail any such Event of
Default or Default and any steps being taken by the Borrowers to cure the
same; all such audited consolidated financial statements shall be
accompanied by an opinion thereon of independent certified public
accountants of
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recognized national standing acceptable to the Administrative Agent,
which opinion shall state that said financial statements fairly
present the consolidated financial condition and results of operations
of the Borrowers and their Subsidiaries as at the end of, and for,
such fiscal year;
(iii) As soon as the same become available and in any event
within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, the Borrowers shall deliver to the
Administrative Agent on behalf of the Banks unaudited consolidated and
consolidating financial statements of the Borrowers and their
Subsidiaries including statements of income, retained earnings and
cash flow and consolidated balance sheets for such quarter in
accordance with GAAP and (z) a certificate of the chief financial
officer of Hvide, which certificate shall state that such financial
statements fairly present the consolidated financial condition and
results of the operations of the Borrowers and their Subsidiaries, as
at the end of, and for, such period (subject to normal year end audit
adjustments) in accordance with GAAP, consistently applied and set
forth in reasonable detail a calculation of the financial tests
specified in Sections 5.01(d) and (e) and Section 5.02 (i) in
accordance with GAAP, showing compliance therewith and stating that no
Event of Default or Default has occurred and is continuing, or setting
forth in detail any such Event of Default or Default and any steps
being taken by the Borrowers to cure the same;
(iv) Not later than 30 days after the close of each month,
beginning with the month ended December 31, 1994, monthly financial
statements on a consolidating and consolidated basis of the Borrowers
showing income statements, balance sheets, cash flows and actual cash
position, together with a certificate of the Chief Financial Officer
of Hvide stating that no Event of Default or Default has occurred and
is continuing, or setting forth in detail any such Event of Default or
Default and any steps being taken by the Borrowers to cure the same;
(v) As soon as the same become available and in any event not
later than January 15 of each year, the Borrowers shall deliver to the
Administrative Agent on behalf of the Banks an annual business plan of
the Borrowers on a consolidated basis for such fiscal year, financial
projections for the Borrowers on a consolidated basis for three years
including statements of income and cash flow, and balance sheets and
the assumptions underlying such plan in reasonable detail, certified
by the chief financial officer of the Borrowers as a reasonable
forecast of the anticipated financial condition of the Borrowers and
their Subsidiaries on a consolidated basis and business segment basis
in respect of such fiscal years;
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(vi) Promptly upon their becoming available, the Borrowers shall
deliver to the Administrative Agent copies of any registration
statements and periodic reports which the Borrowers shall have filed
with the SEC or any national securities exchange or market and, to the
extent any of the Borrowers has notice of the same, any ratings (and
changes thereto) of its debt by any rating agency or service in the
United States;
(vii) Promptly upon obtaining knowledge of the same give notice
to the Administrative Agent, the Letter of Credit Agent and the Banks
of any material litigation against, any of the Borrowers or their
Affiliates or Subsidiaries;
(viii) As soon as reasonably possible, in the event any of the
Borrowers or any of their Subsidiaries incurs any liability under
ERISA the Borrowers shall deliver to the Administrative Agent copies
of all reports and notices which it or any of its Subsidiaries files
under ERISA; and
(ix) From time to time on request, the Borrowers shall furnish
the Administrative Agent, the Letter of Credit Agent and the Banks
with such information and documents respecting the condition of
operations, financial or otherwise, of each of the Borrowers and its
Subsidiaries, and provide access to the properties, accounts, books,
records and agreements of such Borrowers or any Subsidiary or
Affiliate, as the Administrative Agent or any of the Banks may
reasonably require.
(d) Financial Covenants. The Borrowers shall ensure that on a
consolidated basis:
(i) From the Effective Date, at all times Hvide's minimum
Liquidity shall be not less than Six Million United States Dollars
($6,000,000).
(ii) At all times Hvide's maximum Leverage Ratio shall be no
greater than the ratios listed below:
Period Ratio
------ -----
12/31/95 to 6/29/96 5.25
6/30/96 to 12/31/96 3.00
1/1/97 and thereafter 1.75
(iii) At the end of each of Hvide's fiscal quarters, for such
quarter taken together with the immediately preceding three fiscal
quarters; the ratio of Hvide's Consolidated Indebtedness to EBITDAR
shall not be greater than the amount shown below for the respective
periods:
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Test Period
(Fiscal Quarters Ending) Ratio
------------------------ -----
12/31/95 to 2/28/96 7.00
2/29/96 to 6/29/96 6.50
6/30/96 to 12/31/96 5.50
1/1/97 to thereafter 3.50
(iv) At the end of each of Hvide's fiscal quarters, for such
quarter taken together with the three immediately preceding fiscal
quarters, the ratio of Hvide's Consolidated Cash Flow to Consolidated
Financial Obligations shall not be less than the amount shown below
for the respective period:
Test Period
(Quarters Ending) Ratio
----------------- -----
12/31/95 to 6/29/96 1.00
6/30/96 to 12/30/97 1.10
12/31/97 and thereafter 1.20
(v) Notwithstanding the foregoing, for the period from the IPO
Date until the first day of the last quarter following the IPO Date,
all calculations made under this Section 5.01(d) shall be made using
Hvide's Pro Forma Consolidated Historical Financial Statements as
presented in the S-1 giving effect to the proposed Second Offering and
Acquisitions. Thereafter, the Administrative Agent shall use the
Borrowers' most recent quarterly financial statements for purposes of
determining whether the foregoing tests have been met.
(e) Collateral Maintenance and Valuation. (i) The
Borrowers shall ensure that at all times on and after the first Drawdown Date
the aggregate amount of unpaid principal in respect of Facilities A, B, and F
and the undrawn amounts of any Letters of Credit, issued in respect of
Facilities C and D and Unreimbursed Letter of Credit Obligations ("Total
Outstandings") will be less than the sum of (1) 70% of the Aggregate Fair
Market Value of all Mortgaged Vessels (provided that as to the SEABULK AMERICA,
the value for such Vessel shall not be greater than the maximum amount of the
Mortgage on such Vessel), (2) 70% of all Eligible Receivables and (3) other
such unencumbered material assets reasonably acceptable to the Banks and
pledged to the Banks on a first priority basis as security at such advance
rates as shall be determined reasonably by the Banks (collectively the "Pledged
Collateral"). At any time the Borrowers fail to satisfy the test prescribed in
the preceding sentence, the Borrowers will promptly either (a) provide
additional collateral reasonably acceptable to the Banks or (b) make a
mandatory prepayment in
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respect of Facilities A, B, or F or cause any Letter of Credit to be reduced or
terminated in the case of Facilities C and D sufficient to comply with the test
in the preceding sentence.
(ii) For purposes of covenant testing the Fair Market Value of each such
Mortgaged Vessel shall be the most recent value determined pursuant to Section
1.03 hereof provided that the value of a Mortgaged Vessel which is a Total Loss
shall be zero unless (a) such Total Loss is covered by valid and effective
uncontested insurance complying with the requirements of the Mortgage for such
Mortgaged Vessel and the Loss Termination Date has not passed; or (b) such Total
Loss has been replaced by a Substitute Vessel pursuant to Section 2.05(d)(2) and
such additional collateral as may be required by Section 2.05(d)(3) hereof and
all of the requirements of the Administrative Agent in connection therewith have
been fulfilled and complied with to the satisfaction of the Administrative
Agent.
(iii) At any time that the Borrowers demonstrate to the reasonable
satisfaction of the Banks for each fiscal quarter after the Effective Date that
the ratio of Total Outstandings to the Pledged Collateral is less than fifty
percent (50%), the Banks agree that in respect of the then next following
quarter (A) the requirement for a pledge or mortgage on all Vessels acquired
after the Closing Date (except for the Vessels listed in Exhibit L hereto which
are required to be mortgaged) is waived (provided, however, that there shall be
no release of existing Mortgaged Vessels) and (B) the restriction on
contributing Mortgaged Vessels to joint ventures and partnerships will be
relaxed for such next following quarter from two percent (2%) to five percent
(5%). However, if the ratio of Total Outstandings to the Pledged Collateral is
equal to or greater than fifty percent (50%) in successive quarters, the
requirement for a pledge or mortgage on all Vessels acquired after the Closing
Date will be re-imposed and the restriction on future contributions of Mortgaged
Vessels to joint ventures and partnerships will be reduced to two percent (2%).
(f) Insurance. Each of the Borrowers shall, and shall cause each of its
Subsidiaries to, insure and keep insured, with financially sound and reputable
insurers, so much of its properties, in such amounts and against such risks, as
to all the foregoing, in each case, reasonably satisfactory to the
Administrative Agent on behalf of the Banks and as are usually and customarily
insured by companies engaged in a similar business with respect to properties of
a similar character (other than with respect to Vessels which shall be insured
as provided in the Mortgages).
(g) Access to Books and Records. Each of the Borrowers shall permit the
Administrative Agent or its authorized representatives, promptly upon request,
to make such inspection, examination, copy and audit of its properties, books,
records and accounts and those of its Subsidiaries as the Administrative
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Agent or its authorized representative may reasonably deem necessary or
appropriate in connection with this Agreement or any of the Loan Documents or
the Acquisition Documents.
(h) Good Standing. Each of the Borrowers shall remain a corporation or
limited partnership duly organized and in good standing under the laws of its
Incorporation Jurisdiction.
(i) Keeping of Books and Records. The Borrowers shall keep proper books of
record and accounts, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Borrowers and its
Subsidiaries, respectively, in accordance with GAAP consistently applied, or as
otherwise required by applicable rules and regulations of any governmental
agency or regulatory authority having jurisdiction over the Borrowers and its
Subsidiaries, respectively, and as required.
(j) Solvency. The Borrowers shall procure that each of them is, and shall
be, at all times Solvent.
(k) Notice of Litigation. The Borrowers shall promptly give notice in
writing to the Administrative Agent of all litigation and of all proceedings
before any governmental or regulatory agency affecting itself which, if
adversely determined, would materially adversely affect the condition, financial
or otherwise, of the Borrowers.
(l) Further Assurances. The Borrowers shall, from time to time upon the
request of the Administrative Agent on behalf of any Bank, accept for
cancellation any Note or Notes held by and payable to such Bank, and thereupon
the Borrowers shall execute and deliver to the Administrative Agent on behalf of
such Bank, payable to it and its registered assigns, a substitute Note or Notes,
prepared and delivered to the Borrowers by the Administrative Agent, in like
form and total aggregate amount as the canceled Note or Notes, but in any
denomination not smaller than One Million Dollars ($1,000,000) or such lesser
amount as such Bank may request as shall constitute the outstanding principal of
all outstanding Notes held by such Bank. The Borrowers shall do all things
necessary to grant to, and maintain in favor of, the Administrative Agent or the
Mortgagee on behalf of the Banks a valid, first priority security interest in
the Collateral, and to maintain each of the Loan Documents as legal, valid and
binding obligations, enforceable in accordance with their respective terms by
the Administrative Agent, the Mortgagee, the Banks, as the case may be. The
Borrowers shall take such other actions and deliver such instruments as may be
necessary or advisable, in the opinion of the Administrative Agent on behalf of
the Banks, to protect the security interest created in the Collateral, and the
rights and remedies of the Banks and the Mortgagee as the case may be, under the
Loan Documents.
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(m) Acquired Vessels. All vessels acquired by any of the Borrowers after
the Closing Date will be pledged or mortgaged to the Banks as Mortgaged Vessels
except as otherwise provided in Section 5.01(e) hereof. The Borrowers shall
deliver to the Administrative Agent within five days of any Acquisition, two
original executed and acknowledged Mortgage Supplements (in the form of Exhibit
N hereto) in order to mortgage any Vessels acquired pursuant to the Acquisition.
(n) Cash Management. The Borrowers shall maintain cash management systems
acceptable to the Administrative Agent, and the collection accounts for payment
of earnings of Mortgaged Vessels shall be subject to a first perfected priority
lien in favor of the Administrative Agent on behalf of the Banks.
(o) Cash Collateral. In the event the face amount of the Letter of Credit
exceeds the amount to which the Letter of Credit should have been reduced as set
forth in Section 2.07(b), the Borrowers shall deposit additional funds in the
Cash Collateral Account equal to such excess amount.
(p) Contracts. The Borrowers shall comply with the terms of all contracts
to which any of them is a party or by which any of them or any of their
properties may be bound, except that this Section 5.01(p) shall not apply to any
non-compliance that (a) has been excused or waived under the relevant contract
or (b) either alone or when aggregated with all other such non-compliances,
would not have a materially adverse effect on the Borrowers and their
consolidated Subsidiaries taken as a whole.
(q) Corporate Structure. The Borrowers shall (i) maintain Hvide as a
publicly traded company as contemplated by the S-1; and (ii) ensure that the
Hvide stock is always entitled to be traded on public markets of the United
States and is not censored by any exchange, the SEC or comparable organization.
SECTION 1.052 Negative Covenants. So long as any Advance or any other
Obligation shall remain unpaid or any Bank shall have any Commitment, the
Borrowers shall not, unless the Administrative Agent on behalf of the Banks
shall otherwise consent in writing in accordance with Section 7.04:
(a) Mergers, Acquisitions, etc. Acquire the capital stock of any Person, or
merge or consolidate with or into, or permit any of its Subsidiaries to do so,
except that (x) any Subsidiary of the Borrowers may merge or consolidate with or
into, or transfer assets to the Borrowers, or (y) any Subsidiary of the
Borrowers may merge or consolidate with or into, or transfer assets to, or
acquire assets of, any other Subsidiary of the Borrowers, and any Borrower may
cause the change of its Incorporation Jurisdiction by way of merger or
otherwise, upon consent of the Majority Banks;
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(b) Liens. Permit Liens on the Consolidated Assets of the Borrowers other
than (i) those existing on the Closing Date which are approved by the Banks,
(ii) those permitted under the Mortgages, and (iii) anticipated Indebtedness
described in Exhibit D hereto;
(c) Restricted Payments. Make any payment of cash, property or other assets
in respect of any shares of any class of capital stock; including but not
limited to, dividends or other distribution or payment of assets property,
rights, obligations or securities on account of any of its shares of capital
stock except that Hvide may pay dividends to its Class A and Class B Common
Stock shareholders, the total of which may not exceed half of Hvide's net income
for the fiscal year in which the dividend is to be paid;
(d) Business Change. Make or permit any material change to occur in the
nature, or conduct of business of the Borrowers and their Subsidiaries, taken as
a whole, as conducted on the date hereof;
(e) Guarantees. Assume, guarantee, endorse, agree to purchase or repurchase
or provide funds in respect of, or otherwise become or be, or remain directly or
contingently liable upon any Indebtedness, obligation or dividend of, any other
Person, firm, corporation or enterprise, except (i) those which when aggregated
with the additional indebtedness permitted under Section 5.02(j), do not exceed
the requirements set forth in 5.02(j) in principal amount or on a present value
discounted basis; (ii) endorsements of negotiable instruments for deposit or
collection in the ordinary course of business; (iii) the Hvide indemnity of up
to the principal amount of Six Million Eight Hundred Thousand Dollars
($6,800,000) in favor of the 3R Trusts as sellers of the Seal Fleet Vessels; and
(iv) guarantees of the obligations of Subsidiaries which are not otherwise
prohibited by this Agreement;
(f) Transactions with Officers, Directors and Shareholders. Enter or permit
any of its Subsidiaries to enter into any transaction or agreement, including
but not limited to any lease, Capital Lease, purchase or sale of real property,
purchase of goods or services, with any Subsidiary, Affiliate or any officer, or
director of the Borrowers or of any such Subsidiary or Affiliate, or any record
or known beneficial owner of equity securities of any such Subsidiary, any known
record or beneficial owner of equity securities of any such Affiliate or the
Borrowers, or any record or beneficial owner of at least five percent (5%) of
the equity securities of the Borrowers, except (i) on terms that are no less
favorable to the Borrowers or the relevant Subsidiary than those that could have
been obtained in a comparable transaction by the Borrowers or such Subsidiary
with an unrelated Person; (ii) between Subsidiaries or between the Borrowers and
Subsidiaries which are consolidated for financial reporting purposes with the
Borrowers;
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(g) Compliance with ERISA. Become party to any prohibited transaction,
reportable event, accumulated funding deficiency or plan termination with
respect to any plan as to which there is an insufficiency, all within the
meaning of ERISA and the Code, nor permit any Subsidiary to do so;
(h) Investment Company. Be or become an investment company subject to the
registration requirements of the Investment Company Act of 1940, as amended, or
permit any Subsidiary to do so;
(i) Additional Indebtedness. Incur additional Indebtedness except for (i)
existing Indebtedness listed in Schedule F; (ii) trade debt and similar
obligations incurred in the ordinary course of business; (iii) anticipated
Indebtedness listed in Exhibit D hereto; (iv) Indebtedness not to exceed Thirty
Million Dollars ($30,000,000) in principal amount which is permitted in
connection with Permitted Capital Expenditures.
(j) Place of Business, Etc. Change its principal place of business or chief
executive offices without first (i) giving the Administrative Agent at least 30
days advance written notice thereof and (ii) executing and filing Uniform
Commercial Code financing statements, in form and substance satisfactory to the
Administrative Agent, in such jurisdiction or jurisdictions as the
Administrative Agent shall request;
(k) Organizational Documents. Amend its articles of incorporation (or
similar organizational documents) or by-laws, or permit any Subsidiary to do any
of the foregoing (except for such amendments as shall not adversely affect the
rights and remedies of the Administrative Agent or any Bank);
(l) Management Contracts. Enter into any material changes to the management
or management contracts in connection with any Vessels without the consent of
the Administrative Agent, which consent shall not unreasonably be withheld;
(m) Contribution to Joint Ventures. Contribute Mortgaged Vessels to joint
ventures or partnerships except for those Vessels in joint ventures at the
Closing Date and (over the life of the Transaction) vessels valued at no more
than a two percent (2%) in the aggregate of the total value of Mortgaged Vessels
at the time of their contribution to such joint venture or partnership.
SECTION 1.053 Cash Collateral Account. (a) When required by the terms of
this Agreement, the Borrowers will establish and maintain at Citibank, N.A. at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ under the Administrative Agent's sole
dominion and control, a special cash account (the "Cash Collateral Account").
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(b) For so long as no Default or Event of Default has occurred or is
continuing hereunder, the Administrative Agent agrees to make Permitted
Investments with the funds in such account upon the instruction of the
Borrowers. Absent instruction from the Borrowers, the Administrative Agent shall
have no obligation to make such Permitted Investments. Any losses which result
in a shortfall of the amount necessary to pay the next maturing installment of
principal and interest shall be for the account of the Borrowers.
(c) The Administrative Agent on behalf of the Banks and the Letter of
Credit Agent shall have rights of setoff and a security interest and charge in
the Cash Collateral Account. If any Default or Event of Default shall have
occurred and be continuing, all amounts then on deposit or at any time
thereafter deposited in the Cash Collateral Account in lieu of being released
shall, in the sole discretion of the Administrative Agent, be retained by the
Administrative Agent, and/or from time to time applied by the Administrative
Agent against, any or all of the Obligations as such Obligations become due and
payable, whether by acceleration or otherwise.
(d) Any funds remaining in the Cash Collateral Account or after the Loan
and all Obligations have been repaid shall be released to the Borrowers.
ARTICLE VI.
DEFAULT
SECTION 1.061 Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) Any of the Borrowers shall fail to pay any installment of principal of
the Loan when due, or interest with respect to the Loan within three Business
Days after an Interest Payment Date, or fees with respect to the Loan within
three Business Days after the date on which such fee is due or any other amounts
with respect to the Loan within three Business Days of the notice demanding
payment thereof; or
(b) Any representation or warranty made by or on behalf of any of the
Borrowers under or in connection with this Agreement or any of the other Loan
Documents shall prove to have been incorrect in any material respect when made;
or
(c) Any of the Borrowers shall fail to perform or observe any covenant
contained in ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇) or (q), Section 5.02,
or Section 5.03 of this Agreement on its part to be performed or observed; or
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(d) Any of the Borrowers shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement or any of the other Loan
Documents (other than any Mortgage) on its part to be performed or observed and,
in each case, any such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the Borrowers by the Administrative
Agent or any Bank; or
(e) Any of the Borrowers shall fail to pay any amount or amounts due in
respect of material Indebtedness of such Borrower when due (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Indebtedness; or any other default
under one or more agreements or instruments relating to Indebtedness of such
Borrower or such Subsidiary, or any other event, shall occur and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such default or event is to accelerate, or to
permit the acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), redeemed, purchased
or defeased, or an offer to prepay, redeem, purchase or defease shall be
required to be made, in each case prior to the stated maturity thereof; or
(f) (1) Any of the Borrowers shall (A) generally not pay its debts as such
debts become due, (B) threaten to stop making payments generally, (C) admit in
writing its inability to pay its debts generally, (D) make a general assignment
for the benefit of creditors, (E) not be Solvent or (F) be unable to pay its
debts;
(2) Any proceeding shall be instituted in any jurisdiction by or against
any of the Borrowers or any of its material Subsidiaries (A) seeking to
adjudicate it a bankrupt or insolvent, (B) seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
its debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or (C) seeking the entry of an administration order, an order
for relief, or the appointment of a receiver, trustee, or other similar
official, for it or for any substantial part of its property; or
(3) Any of the Borrowers or any of their Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in subparagraph
(f)(2) of this Section 6.01; or
(g) One or more judgments or orders shall be rendered against any of the
Borrowers or any of their Subsidiaries for the payment of money, singly or in
the aggregate, in excess of Five Hundred Thousand Dollars ($500,000) which
amounts are not covered by valid insurance policies and either (i) enforcement
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proceedings to sell assets have been commenced by any creditor upon such
judgment or order or (ii) there shall have elapsed any period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not have been in effect; or
(h) Any governmental authority or any Person or entity acting or purporting
to act under governmental authority shall have taken any action to condemn,
seize or appropriate, or to assume custody or control of, all or substantially
all of the property of any of the Borrowers or of any of their Subsidiaries
which are material to the assets or business of the Borrowers on a consolidated
basis, or shall have taken any action to displace the management of the
Borrowers or of any of their Subsidiaries which are material to the assets or
business of the Borrowers on a consolidated basis, or to curtail its authority
in the conduct of the business of any of the Borrowers or of any of their
Subsidiaries which are material to the assets or business of the Borrowers on a
consolidated basis; or
(i) After delivery thereof to the Administrative Agent, the Banks, or the
Mortgagee, the Administrative Agent, the Banks or the Mortgagee shall for any
reason (except to the extent permitted by the terms thereof) not have a valid
and perfected first priority security interest in any of the Pledged Collateral
purported to be covered by any of the Security Documents which results in a
default in the performance of the Borrowers' obligations under Section 5.01(e);
or
(j) An "event of default" shall have occurred and be continuing under any
Mortgage; or
(k) The Borrowers shall take any action in connection with any charter or
other operation of any Mortgaged Vessel which shall impair the security
interests of the Administrative Agent or the Mortgagee created or purported to
be created by any related Earnings Assignment or Insurance Assignment; or
(l) Any material provision of the Loan Documents after delivery thereof
shall for any reason cease to be in full force and effect, or any party thereto
shall so state in writing; or
(m) There shall have occurred a Change of Control.
SECTION 1.062 Application of Proceeds. All payments received and amounts
held or realized by the Administrative Agent, or delivered to the Administrative
Agent by the Mortgagee, in respect of any of the Loan Documents and the
Collateral (or any proceeds thereof) after an Event of Default shall have
occurred and so long as an Event of Default shall be continuing shall promptly
be distributed by the Administrative Agent in the following order of priority:
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First, so much of such payments or amounts as shall be required to pay
the Administrative Agent, the Letter of Credit Agent and the Mortgagee for
any Tax, expense, charge or other loss incurred by the Administrative
Agent, the Letter of Credit Agent or the Mortgagee to the extent not
previously reimbursed (including, without limitation, the expenses of any
sale, taking or other possession, attorneys' fees and expenses, court costs
and any other expenditures incurred or expenditures or advances made by the
Administrative Agent, the Letter of Credit Agent or the Mortgagee in the
protection, exercise or enforcement of any right, power, or remedy or any
damages sustained by the Administrative Agent or the Mortgagee, liquidated
or otherwise upon such Event of Default) and to pay any other Obligations
arising hereunder or under any of the other Loan Documents to the
Administrative Agent, the Letter of Credit Agent and the Mortgagee shall be
applied by the Administrative Agent in payment of such expenses;
Second, so much of such payments or amounts as shall be required to
reimburse the Banks ratably in accordance with their respective Percentage
Interests for all outstanding amounts in respect of (i) accrued and unpaid
interest, Breakage Costs, and then (ii) outstanding principal of each
Advance until paid in full, with any amounts remaining to be applied in
accordance with clause Third below;
Third, so much of such payments or amounts as shall be required to
reimburse the Banks ratably in accordance with their respective Percentage
Interests for all other amounts owing in respect of any Obligations other
than those specified in paragraph Second above; and
Fourth, the balance, if any, of such payments or amounts remaining
thereafter shall be distributed to the Borrowers.
ARTICLE VII.
RELATION OF BANKS, ASSIGNMENT
AND PARTICIPATIONS
SECTION 1.071 Banks and Administrative Agent. The general administration of
this Agreement and the Loan Documents shall be by the Administrative Agent, and
each Bank hereby authorizes and directs the Administrative Agent to take such
action (including without limitation retaining lawyers, accountants, surveyors
or other experts) or forbear from taking such action as in the Administrative
Agent's reasonable opinion may be necessary or desirable for the administration
hereof (subject to any direction of the Majority Banks and to the other
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requirements of Section 7.04 hereof). The Administrative Agent shall inform each
Bank, and each Bank shall inform the Administrative Agent, of the occurrence of
any Event of Default promptly after obtaining knowledge thereof; however, unless
it has actual knowledge of an Event of Default, each of the Administrative
Agent, the Letter of Credit Agent and the Banks may assume that no Event of
Default has occurred.
SECTION 1.072 Pro Rata Sharing. All commissions, fees, interest and
payments received by the Administrative Agent or any Bank under the terms of
this Agreement and the other Loan Documents and all expenses arising from the
administration hereof or the enforcement of any security and any sum realized
therefrom or from any setoff (other than sums applied to the payment of expenses
or for reimbursement of expenses paid) for which provision for allocation and
payment is not otherwise provided for herein or therein shall be divided pro
rata among the Banks in accordance with their Percentage Interests set forth in
Exhibit M hereto or, if applicable, in the Register. Notwithstanding the
foregoing, nothing herein shall be construed to prevent Citibank, N.A. or The
First National Bank of Boston from receiving solely for its own account as
neither Bank, Administrative Agent, Co-Agent nor Letter of Credit Agent
hereunder, such other fees and payments in respect of the Transaction as it may
mutually agree with the Borrowers. Each Bank shall pay to the Administrative
Agent promptly on demand any sums payable by such Bank hereunder. Under no
circumstances shall the Administrative Agent be obligated to expend its own
funds for the protection of the interests of the Banks, but the Administrative
Agent shall be entitled to be indemnified hereunder by the Banks in accordance
with their Percentage Interest prior to taking any action or expending any
funds.
SECTION 1.073 Setoff. Any Bank which shall receive payment of or on account
of all or part of its claim against the Borrowers hereunder through the exercise
of any right of setoff, counterclaim, banker's lien, or secured claim under any
bankruptcy statute in a greater proportion than its Percentage Interest shall
promptly notify the Administrative Agent thereof as set forth in Section 8.05
hereof and shall be deemed to have purchased immediately prior to such payment a
ratable proportion of the claims of the other Banks so that all recoveries of
principal and interest shall be shared by the Banks in accordance with their
respective Percentage Interests. If all or any portion of such excess payment is
thereafter recovered from such Bank, such purchase shall be rescinded and the
purchase price restored of such recovery, but without interest.
SECTION 1.074 Approvals. Upon any occasion requiring or permitting an
approval of any amendment or modification or any consent, waiver, declaring an
Event of Default or taking any action thereafter, or any other action on the
part of the Administrative Agent or the Banks under any of the Loan Documents,
(1) action may (but shall not be required to) be taken
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by the Administrative Agent for and on the behalf or for the benefit of all
Banks, provided (A) that no contrary direction of the Majority Banks shall have
been previously received by the Administrative Agent, and (B) that the
Administrative Agent shall have received consent of the Majority Banks to enter
into any written amendment, waiver or modification of the provisions of any of
the Loan Documents, or to consent in writing to any material departure from the
terms of any Loan Documents by the Borrowers or any other party thereto or (2)
action shall be taken by the Administrative Agent upon the direction of the
Majority Banks, and any such action shall be binding on all Banks; provided
further, however, that unless all of the Banks agree in writing thereto, no
amendment, modification, waiver, consent or other action with respect to any of
the Loan Documents shall be effective which (a) increases the Commitment,
increases the Percentage Interest of any of the Banks or increases the Aggregate
Amount, (b) reduces any commission, fee, principal or interest owing to any Bank
hereunder or the method of calculation of any thereof, (c) extends Maturity
Date, the expiry date of any Letter of Credit or any other date on which any sum
is due hereunder, including, without limitation, the date or amount of any
prepayment required hereunder, (d) releases any Collateral, guaranty or other
security, (e) amends, waives or modifies the provisions of Section 5.01(e)
hereof, or (f) amends the provisions of this Section 7.04 or the definition of
Majority Banks.
SECTION 1.075 Exculpation. The Administrative Agent shall not be liable or
answerable for anything whatsoever in connection with any of the Loan Documents
or other instrument or agreement required hereunder or thereunder, including
responsibility in respect of the execution, delivery, construction or
enforcement of any of the Loan Documents or any such other instrument or
agreement, or for any action taken or not taken by the Administrative Agent in
any case involving exercise of any power or authority conferred upon the
Administrative Agent under any thereof, except for its wilful misconduct or
gross negligence, and the Administrative Agent shall have no duties or
obligations other than as provided herein and therein. The Administrative Agent
shall be entitled to rely on any opinion of counsel (including counsel for any
of the Borrowers or any of their Subsidiaries) in relation to any of the Loan
Documents or any other instrument or agreement required hereunder or thereunder
and upon writings, statements and communications received from the Borrowers or
any of its Subsidiaries (including any representation made in or in connection
with any Loan Document), or from any other party to any of the Loan Documents or
any documents referred to therein or any other Person, firm or corporation
reasonably believed by it to be authentic, and the Administrative Agent shall
not be required to investigate the truth or accuracy of any writing or
representation, nor shall the Administrative Agent be liable for any action it
has taken or omitted in good faith on such reliance.
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SECTION 1.076 Indemnification. Each Bank agrees to indemnify the
Administrative Agent, except to the extent reimbursed by the Borrowers and
except in the case of any suit by any Bank against the Administrative Agent
resulting in a final judgment against the Administrative Agent, ratably
according to its Percentage Interest against all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursement of any kind or nature whatsoever (except to the extent the
foregoing result from the Administrative Agent's gross negligence or wilful
misconduct) which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of (y) any of the
Loan Documents or any other instrument or agreement contemplated hereunder or
thereunder or (z) any action taken or omitted by the Administrative Agent under
any of the Loan Documents or such other instrument or agreement.
SECTION 1.077 Administrative Agent, Co-Agents and Letter of Credit Agent as
Bank. Each of the Administrative Agent, the Co-Agents and the Letter of Credit
Agent shall, in its individual capacity, have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not an
agent; the term "Banks" shall include each of the Administrative Agent, the
Co-Agents and the Letter of Credit Agent in its individual capacity to the
extent of its Percentage Interest. Each of the Administrative Agent, the
Co-Agents and the Letter of Credit Agent and its respective Subsidiaries and
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of banking, trust or other business with each of the Borrowers, and their
respective Subsidiaries and Affiliates, as if it were not the Administrative
Agent, Co-Agents or Letter of Credit Agent, as the case may be.
SECTION 1.078 Notice of Transfer; Resignation; Successor Administrative
Agent. (a) The Administrative Agent may deem and treat a Bank party to this
Agreement as the owner of such Bank's interest in any Loan and any other
instrument or agreement of the assignment or transfer thereof, executed by such
Bank and otherwise in compliance with the requirements of Section 7.10 hereof,
shall have been received and accepted by the Administrative Agent. The
Administrative Agent shall resign if directed by the Majority Banks. The
Administrative Agent may resign at any time by notice to the Borrowers and the
Banks.
(b) Any successor Administrative Agent shall be appointed by the Majority
Banks and shall be a bank or trust company reasonably satisfactory to the
Majority Banks, and, so long as no Event of Default shall have occurred and be
continuing, appointment of any such successor Administrative Agent (whether by
the Majority Banks or by the retiring Administrative Agent) shall be subject to
the consent of the Borrowers, such consent not to be unreasonably denied or
withheld. If no successor Administrative Agent shall have been so appointed by
the Majority Banks, and shall have accepted such
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appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Bank's removal of the Administrative
Agent, then such retiring Administrative Agent may, on behalf of the Banks,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $50,000,000. 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 or removal hereunder as
Administrative Agent, the provisions of this Article VII 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.
SECTION 1.079 Credit Decision; Not Trustee. Each Bank represents that it
has made, and agrees that it shall continue to make its own independent
investigation of the financial condition of each of the Borrowers and their
Subsidiaries and its own appraisal of the creditworthiness of each of the
Borrowers and their Subsidiaries in connection with the making and performance
of the Loan Documents. The Administrative Agent has and shall have no duty or
responsibility whatsoever on the date hereof or, except as otherwise expressly
provided in this Agreement at any time hereafter, to provide any Bank with any
credit or other information. Nothing herein shall (nor shall it be construed so
as to) constitute the Administrative Agent or the Letter of Credit Agent a
trustee for each of the Borrowers or their Subsidiaries or impose on it any
duties or obligations other than those for which express provision is made in
this Agreement or under the other Loan Documents.
SECTION 7.10 Assignments and Participation; Termination. (a) Each Bank may
assign to one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of all rights and obligations under this
Agreement, (ii) unless the Borrowers shall otherwise agree with the assigning
Bank, the amount of the Commitment of the assigning Bank being assigned pursuant
to each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than Five
Million Dollars ($5,000,000) or such lesser amount as shall constitute all of
such assigning Bank's Commitment and the outstanding principal of Notes payable
to it, (iii) each such assignment shall be to an Eligible Assignee, and (iv) the
parties to each such assignment shall
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execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and a processing recordation fee of $3,000;
provided further, however, that so long as no Event of Default shall have
occurred and be continuing, each such assignment shall be subject to the consent
of the Borrowers, which consent shall not unreasonably be denied and which
consent shall be deemed given unless the Borrowers gives the assigning Bank and
the Administrative Agent written notice of and a reasonable basis for its denial
not later than ten (10) Business Days following telex, telefacsimile or cable
notice given to the Borrowers by the assigning Bank or the Administrative Agent
of the name of the proposed transferee, the amount of Commitment to be assigned
and such information as the Borrowers may reasonably request for purposes of
making an informed judgment. Prior to contacting a prospective assignee in
connection with a proposed assignment hereunder, the assignor Bank shall give
the Borrowers notice of the identity of any such prospective assignee. Any
consent to assignment untimely or unreasonably denied by the Borrowers shall be
void and of no effect, and shall not preclude or bar any assignment otherwise
permitted by this Section 7.10(a). Any assignment or purported assignment not in
compliance with this Section shall be void and of no effect. Without regard to
any of the other terms of this Agreement or of any other agreement, any Bank may
assign, as collateral or otherwise, any of its rights (including, without
limitation, rights to payments of principal and/or interest on the Notes) under
this Agreement to any Federal Reserve Bank of the United States without notice
to or consent of the Borrowers, the Agent or any other Person.
(b) Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and Acceptance (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance and subject to the foregoing, have the rights and obligations of a
Bank hereunder and (y) the Bank assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in connection with this Agreement or the
execution, legality,
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validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; (ii) such assigning
Bank makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any of the Borrowers or its Subsidiaries
or the performance or observance by any of the Borrowers or its Subsidiaries of
any of its obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received a
copy of this agreement, together with copies of the Borrowers' financial
statements referred to herein, and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Bank or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Bank.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee representing that it is an Eligible Assignee, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit I hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
(including the transfer of Notes to such Eligible Assignee by the assigning
Bank) and (iii) give prompt notice and an execution counterpart thereof to the
Borrowers. Within five (5) Business Days after its receipt of such notice, the
Borrowers, at the expense of the assigning Bank, shall execute and deliver to
the Administrative Agent in exchange for the surrendered Note or Notes a new
Note or new Notes, as the case may be, of the same series to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of Exhibit I hereto.
(e) The Administrative Agent shall maintain at its address referred to in
Section 8.02 of this Agreement a register for the recordation of the names and
addresses of the Banks and the Commitment of, and principal amount of the
Advance owing and
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each Note payable to, each Bank from time to time and a copy of each Assignment
and Acceptance delivered to and accepted by it (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, the Administrative Agent, the Letter of Credit Agent
and the Banks may treat each Person whose name is recorded in the Register as a
Bank hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers or any Bank at any reasonable time and
from time to time upon reasonable prior notice and each shall be entitled to
make copies thereof at its expense.
(f) Each Bank may grant participations to one or more banks or other
entities in or to all or any part of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment and
the Advance owing to it); provided, however, that, notwithstanding the grant of
any such participation by any Bank, such participation, and the right to grant
such a participation, shall be expressly subject to the following conditions and
limitations: (i) such Bank's obligations under this Agreement (including without
limitation, its Commitment to the Borrowers hereunder) shall remain unchanged,
(ii) such Bank shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) such Bank shall remain the holder of
any such Note and Advance for all purposes of this Agreement, (iv) the
Borrowers, the Administrative Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under the Agreement, (v) such Bank shall continue to be able to
agree to any modification or amendment of this Agreement or any waiver hereunder
without the consent, approval or vote of any such participant or group of
participants, other than modifications, amendments, and waivers which (a)
postpone the Maturity Date or any date fixed for any payment of, or reduce any
payment of, principal of or interest on such Bank's Advance or any fees or other
amounts payable under this Agreement, or (b) increase the amount of such Bank's
Commitment, or (c) change the interest rate payable under this Agreement, or (d)
release all or any substantial part of the Collateral, provided that if a Bank
agrees to any modification or waiver relating to items (a) through (d), the
Borrowers, the Administrative Agent and each other Bank may conclusively assume
that such Bank duly received any necessary consent of each of its participants,
and (vi) except as contemplated by the immediately preceding clause (v), no
participant shall be deemed to be or to have any of the rights or obligations of
a "Bank" hereunder.
(g) Any Bank may, in connection with any assignment, designation or
participation or proposed assignment, designation or participation pursuant to
this Section 7.10, disclose to the assignee or participant, or proposed
assignee, or participant, any information relating to any of the Borrowers or
their Subsidiaries that is otherwise publicly available and has been furnished
to such Bank by or on behalf of the Borrowers, provided
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that without the Borrowers' prior written or oral consent, no Bank shall
disclose to any proposed assignee or proposed participant, any such information
not otherwise publicly available relating to the Borrowers or its Subsidiaries
as has been furnished to such Bank by or on behalf of the Borrowers hereby;
provided, however, any Bank may disclose such information to a potential
assignee if prior to any disclosure, the potential assignee has signed a
confidentiality agreement in form and substance reasonably satisfactory to
Borrowers. Any Bank that sells or grants a participation pursuant to this
Section 7.10 shall (i) in a timely manner withhold or deduct from each payment
to the holder of such participation the amount of any Taxes required under
Applicable Law to be withheld or deducted from such payment that have not been
withheld or deducted by the Borrowers or the Administrative Agent or the Letter
of Credit Agent (ii) pay such Taxes in a timely manner to the appropriate
authorities and (iii) indemnify the Borrowers and the Administrative Agent or
the Letter of Credit Agent for any Taxes, losses, costs or expenses that they
may incur as a result of any failure to pay such Taxes to the appropriate
authority when due.
SECTION 7.11 Co-Agents. Each of the Co-Agents shall have no duties,
responsibilities, rights or liabilities as Co- Agent, as the case may be, under
this Agreement or any of the other Loan Documents and shall not be liable or
answerable for anything whatsoever in connection with any of the Loan Documents
or other instrument or agreement required hereunder or thereunder, including
responsibility in respect of the execution, delivery, construction or
enforcement of any of the Loan Documents or any such other instrument or
agreement, or for any action taken or not taken by any Person with respect
thereto. Each of the Co-Agents has and shall have no duty or responsibility
whatsoever on the date hereof or at any time hereafter, to provide any Bank with
any credit or other information. Nothing herein shall (nor shall it be construed
so as to) constitute the Co-Agents a trustee for the Borrowers or their
Subsidiaries or impose on it any duties or obligations whatsoever under this
Agreement, the other Loan Documents, or otherwise.
ARTICLE VIII.
MISCELLANEOUS
SECTION 1.081 Amendments. No amendment, restatement, supplement or
modification to this Agreement shall be enforceable against the Borrowers unless
the same shall be in writing and signed by the Borrowers. No amendment or waiver
of any provision of this Agreement or any instrument delivered hereunder, nor
consent to any departure by the Borrowers therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Administrative
Agent and, to the extent required by Section 7.04 hereof, the Majority Banks or
each Bank, as the case
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may be, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given, provided that in the
absence of actual notice to the contrary, the Borrowers may conclusively rely on
all writings purported to be delivered and actions taken by the Administrative
Agent on behalf of the Banks or the Majority Banks, as the case may be, without
inquiry as to the authority of the Administrative Agent with respect thereto.
SECTION 1.082 Notices. All notices, demands and other communications
provided for hereunder shall be in writing (including telegraphic communication)
telexed, telecopied or telegraphed or delivered, if to the Borrowers, at its
address set forth below its signature herein written; if to the Administrative
Agent, at its address set forth below its signature herein written; and if to a
Bank other than the Administrative Agent, the Letter of Credit Agent at its
address set forth below its signature herein written; or, as to each party, at
such other address as shall be designated by such party in a notice to the other
parties hereto. All such notices and communications shall, when telexed,
telecopied, or telegraphed, be effective upon the earliest of (i) actual receipt
or (ii) when (on a Business Day and during normal business hours at the
addressee's address) transmitted by telecopy or telex or delivered to the
telegraph company, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II hereof shall not be effective until
received by the Administrative Agent.
SECTION 1.083 No Waiver; Remedies. Regardless of any fact known or
investigation undertaken by the Administrative Agent or any Bank, no failure on
the part of the Administrative Agent or any Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 1.084 Costs, Expenses, Fees and Indemnities; Concerning the
Mortgagee and the Trustee. (a) Each Borrower agrees to pay on demand (i) in
connection with the preparation, execution, and delivery of this Agreement and
the instruments and other documents to be delivered hereunder, (x) the
reasonable fees and out-of-pocket expenses of Messrs. Winthrop, Stimson, ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, as special counsel for the Administrative Agent, the Letter of Credit
Agent and the Banks and Messrs. ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ as special counsel to the
Letter of Credit Agent (and any local counsel retained by such firm) with
respect to the closing of the Transaction and (y) all other reasonable and
customary third party costs and expenses of the Banks and the Administrative
Agent (other than any other legal fees and related expenses incurred by them)
and (z) the reasonable fees and out- of-pocket expenses of the Mortgagee and the
Trustee (including
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reasonable attorney fees and out-of-pocket expenses) and (ii) after the Closing
Date, all reasonable and customary third party costs and expenses in connection
with the administration of this Agreement and the other instruments and
documents to be delivered hereunder, including, without limitation, (y) the
reasonable fees and out-of-pocket expenses of any counsel for the Administrative
Agent or the Banks in connection with advice given the Administrative Agent or
the Banks, from time to time, as to their rights and responsibilities under this
Agreement and in connection with the waiver, supplementation or amendment of
such instruments and documents and (z) the reasonable fees and out-of- pocket
expenses of the Mortgagee (including the reasonable fees and out-of-pocket
expenses of counsel to the Mortgagee) and the indemnities payable to the
Mortgagee as trustee under the Master Vessel and Collateral Trust Agreement,
respectively, pursuant to the terms hereof. The Borrowers further agree to pay
on demand all losses, costs and expenses, if any (including, without limitation,
counsel fees and expenses), in connection with the enforcement of this Agreement
and the instruments and other documents delivered hereunder, including, without
limitation, losses, costs and expenses sustained as a result of a Default by any
of the Borrowers in the performance of its obligations contained in this
Agreement or any instrument or document delivered hereunder.
(b) If, for any reason, including maturity or demand of the Loan under
Article VI, or prepayment of the Loan, in whole or in part, the Administrative
Agent or any of the Banks receives payment of principal of or interest on an
Advance on any day other than the Principal Payment Date or Interest Payment
Date for such Advance, the Borrowers shall pay to the Administrative Agent on
behalf of the Banks on demand any amounts required to compensate the Banks for
any breakage costs (including cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds in respect of such
payment) and any additional losses, costs or expenses which any Bank may incur
as a result of such payment, prepayment, purchase or acceleration in connection
with unwinding or liquidating of any deposits or funding or financing
arrangement with its funding sources (collectively, "Breakage Costs"), provided
that the Bank shall have delivered to the Administrative Agent and the Borrowers
a certificate as to the amount of such Breakage Costs, which certificate shall
be binding, absent manifest error, except that the failure of the Bank to
provide such certificate shall in no way relieve the Borrowers of their
obligations under this Section 8.04(b).
(c) Each Borrower agrees to indemnify and hold harmless each of the Banks
and the Administrative Agent, the Letter of Credit Agent and its and their
respective Affiliates, directors, officers, employees, agents, representatives,
counsel and advisors (each an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and disbursements
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of counsel and the costs of investigation and defense thereof) which may be
incurred by or asserted or awarded against any Indemnified Party, in each case
based upon, arising out of or in connection with or by reason of, the
Transaction (including, without limitation, any act or failure to act by the
Administrative Agent, the Letter of Credit Agent or the Mortgagee where such act
or failure to act was taken pursuant to the Borrowers' request, any Transaction
contemplated by this Agreement, or any Loan Document), whether or not any
Advance hereunder is made, except to the extent that such claim, damage, loss,
liability or expense results from the gross negligence or willful misconduct of
such Indemnified Party. The indemnities of this Loan Agreement shall survive the
termination of this Loan Agreement and the other Loan Documents.
SECTION 1.085 Right of Setoff. Upon the occurrence and during the
continuance of an Event of Default, each of the Administrative Agent, the Letter
of Credit Agent, each Bank and their respective Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) any time held, and other Indebtedness at any time owing,
by the Administrative Agent, the Letter of Credit Agent, a Bank or their
respective Affiliates to or for the credit or the account of the Borrowers
against any and all of the obligations of the Borrowers now or hereafter
existing under the Agreement and any instrument delivered hereunder,
irrespective of whether or not the Bank shall have made any demand under this
Agreement or such instrument and although such obligations may be unmatured. The
Administrative Agent, the Letter of Credit Agent and each Bank agrees promptly
to notify the Borrowers, as the case may be, and the Administrative Agent, the
Letter of Credit Agent, as the case may be, after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of the Administrative Agent,
the Letter of Credit Agent, each Bank and their respective Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of setoff) which the Administrative Agent, the Letter
of Credit Agent or such Bank may have.
SECTION 1.086 Joint and Several Liability of Borrowers. Each Borrower
agrees with the Banks, the Letter of Credit Agent and the Administrative Agent
that such Borrower shall be jointly and severally liable for the Obligations
with the other Borrowers except that Seabulk Transmarine Partnership, Ltd.'s
liability hereunder shall be limited to such amounts as may be recovered
pursuant to the Mortgage and Assignments in respect of M/V SEABULK AMERICA.
SECTION 1.087 Judgment. (a) If for the purposes of obtaining judgment in
any court it is necessary to convert a sum due hereunder or under any instrument
delivered hereunder in
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United States Dollars into another currency, the parties hereto agree, to the
fullest extent permitted by law, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Administrative Agent, the
Letter of Credit Agent or the Banks, as the case may be, could purchase United
States Dollars with such other currency on the Business Day preceding that on
which final judgment is given.
(b) The obligation of a Borrower in respect of any sum due from it to the
Administrative Agent, the Letter of Credit Agent or any Bank hereunder or under
such instrument shall, notwithstanding any judgment in a currency other than
United States Dollars, be discharged only to the extent that on the Business Day
following receipt by the Administrative Agent, the Letter of Credit Agent or
such Bank of any sum adjudged to be so due in such other currency the
Administrative Agent, the Letter of Credit Agent or such Bank, as the case may
be, may in accordance with normal banking procedures purchase United States
Dollars with such other currency; if the United States Dollars so purchased are
less than the sum originally due to the Administrative Agent, the Letter of
Credit Agent or such Bank, as the case may be, in United States Dollars, each
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Administrative Agent, the Letter of Credit Agent or such Bank,
as the case may be, against such loss, and if the United States Dollars so
purchased exceed the sum originally due to the Administrative Agent, the Letter
of Credit Agent or such Bank in United States Dollars, the Administrative Agent,
the Letter of Credit Agent or such Bank shall remit such excess to such
Borrower.
SECTION 1.088 Consent to Jurisdiction; Waiver of Immunities. (a) Each
Borrower hereby irrevocably submits to the jurisdiction of any New York State
court sitting in New York County and to the jurisdiction of the United States
District Court for the Southern District of New York in any action or proceeding
arising out of or relating to this Agreement or the Notes or the other Loan
Documents, and each Borrower hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such New
York State or Federal court. Each Borrower irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding or the failure to join any other
Borrower as a necessary party to such action. The Borrowers hereby irrevocably
appoint CT Corporation (the "Process Agent"), with an office on the date hereof
at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, as their agent to
receive on behalf of each of them and their property service of copies of the
summons and complaint and any other process which may be served in any such
action or proceeding. Such service may be made by mailing or delivering a copy
of such process to the Borrowers in care of the Process Agent (or any successor
thereto, as the case may be) at such Process Agent's above address (or the
address of any successor thereto, as the
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76
case may be), and the Borrowers hereby irrevocably authorize and direct the
Process Agent (and any successor thereto) to accept such service on their
behalf. The Borrowers shall appoint a successor agent for service of process
should the agency of CT Corporation terminate for any reason, and further shall
at all times maintain an agent for service of process in New York, New York, so
long as there shall be outstanding any Obligations under the Loan Documents. The
Borrowers shall give notice to the Administrative Agent of any appointment of
successor agents for service of process, and shall obtain for each successor
agent a letter of acceptance of appointment and promptly deliver the same to the
Administrative Agent. As an alternative method of service, each Borrower also
irrevocably consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to it at its address
specified in Section 8.02 hereof. Without waiver of its rights of appeal
permitted by relevant law, each Borrower agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Nothing in this Section 8.07 shall affect the right of the
Administrative Agent, the Letter of Credit Agent or any Bank to serve legal
process in any other manner permitted by law, or affect the right of the
Administrative Agent, the Letter of Credit Agent or any Bank to bring any action
or proceeding against any Borrower or its respective properties in the courts of
any other jurisdiction.
(c) To the extent that any Borrower has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, such
Borrower hereby irrevocably waives such immunity in respect of its obligations
under this Agreement and the Notes and each of the other Loan Documents.
SECTION 1.089 Binding Effect; Merger; Severability; GOVERNING LAW. (a) This
Agreement shall be binding upon, and shall inure to the benefit of, the
Borrowers, the Administrative Agent, the Letter of Credit Agent and each Bank,
and their respective successors and assigns, except that the Borrowers shall not
have the right to assign its rights hereunder or any interest herein. Each Bank
may, to the extent permitted under this Agreement, assign to any other financial
institution all or any part of, or any interest in, the Bank's rights and
benefits hereunder and under any instrument delivered hereunder, and to the
extent of such assignment such assignee shall have the same rights and benefits
against the Borrowers as it would have had if it were the Bank hereunder.
(b) The Loan Documents, together with all attachments and exhibits to each
of them and all other documents referenced
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77
herein and therein, and delivered hereunder and thereunder and pursuant hereto
and thereto, constitute the entire agreement among the parties with respect to
the subject matter hereof and thereof, and supersede all prior and
contemporaneous written and oral understandings and agreements related thereto
among the parties.
(c) If any work, phrase, sentence, paragraph, provision or section of the
Loan Documents shall be held, declared, pronounced or rendered invalid, void,
unenforceable or inoperative for any reason by any court of competent
jurisdiction, governmental authority, statute, or otherwise, such holding,
declaration, pronouncement or rendering shall not adversely affect any other
word, phrase, sentence, paragraph, provision or section of the Loan Documents,
which shall otherwise remain in full force and effect and be enforced in
accordance with their respective terms.
(d) This Agreement has been delivered in New York, New York. THIS AGREEMENT
AND THE NOTES SHALL BE GOVERNED BY, AND BE CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 8.10 Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary or convenient and by each party hereto
on separate counterparts, each of which, when so executed, shall be deemed as
original, but all such counterparts shall constitute but one and the same
agreement.
SECTION 8.11 WAIVER OF JURY TRIAL. BY ITS SIGNATURE BELOW WRITTEN EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT,
THE LOAN DOCUMENTS HEREIN DESCRIBED OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
SECTION 8.12 Effectiveness. This Agreement shall not come into effect until
the Effective Date. Prior to the Effective Date, the Credit Agreement dated as
of September 28, 1994, as amended by Amendment No. 1 dated as of May 15, 1995
and Amendment No. 2 dated as of March 26, 1996 and as subsequently amended and
restated by an Amended and Restated Credit Agreement dated as of June 21, 1996
which was amended by Amendment No. 1 dated as of December 17, 1996, shall be
binding upon the parties hereto.
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78
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
HVIDE MARINE INCORPORATED
By:
__________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President -
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
P.O. Box 13038
Port Everglades
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SEABULK TRANSMARINE PARTNERSHIP, LTD.
By its general partner Seabulk Tankers, Ltd.
By its general partner Hvide Marine
Transport, Incorporated
By: _________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President -
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
P.O. Box 13038
Port Everglades
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
79
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
SEABULK OFFSHORE LTD.
By its general partner Seabulk Tankers Ltd.
By its general partner Hvide Marine
Transport, Incorporated
By:
_____________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President -
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
P.O. Box 13038
Port Everglades
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
80
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
HVIDE MARINE TRANSPORT, INCORPORATED
By:
__________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President -
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
P.O. Box 13038
Port Everglades
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SEABULK TANKERS, LTD.
By its general partner Hvide Marine
Transport, Incorporated
By:
__________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President -
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
P.O. Box 13038
Port Everglades
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
HVIDE CHARTERING, LTD.
By its general partner Hvide Marine
Incorporated
By:
_________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President -
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
P.O. Box 13038
Port Everglades
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
81
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
SEABULK OCEAN SYSTEMS CORPORATION
By: ____________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President -
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
P.O. Box 13038
Port Everglades
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
82
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
SUN STATE MARINE SERVICES, INC.
By: ____________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
P.O. Box 13038
Port Everglades
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
83
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
CITIBANK, N.A.
Administrative Agent, Co-Agent
By: ---------------------------
Name:
Title:
Address: Citibank, N.A.
NAGF Loan Processing
One Court Square, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
CITIBANK, N.A.
By: ---------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Global Shipping Division
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Lending Office: The above address or such
other address or addresses
as may be notified to the
Administrative Agent and
the Borrowers from time to
time.
84
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
BNY FINANCIAL CORPORATION
By: ---------------------------
Name:
Title:
Address: 1290 Ave. of the Americas
Third Floor-Legal Depart.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Lending Office: The above address or such
other address or addresses
as may be notified to the
Administrative Agent and
the Borrowers from time to
time.
85
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE FIRST NATIONAL BANK OF BOSTON
as Letter of Credit Agent, Co-Agent
By: ---------------------------------------------
Name:
Title:
Address: The First National Bank of Boston
Transportation
Mail Stop: 01-08-01
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
THE FIRST NATIONAL BANK OF BOSTON
By: --------------------------------------------
Name:
Title:
Address: The First National Bank of Boston
Mail Stop: 01-08-01
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Lending Office: The above address or such
other address or addresses
as may be notified to the
Administrative Agent and
the Borrowers from time to
time.
86
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
HIBERNIA NATIONAL BANK
By: ------------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Lending Office: The above address or such
other address or addresses
as may be notified to the
Administrative Agent and
the Borrowers from time to
time.
87
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
AMSOUTH BANK OF FLORIDA
By: -----------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Lending Office: The above address or such
other address or addresses
as may be notified to the
Administrative Agent and
the Borrowers from time to
time.