EXHIBIT 10.34
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AMENDMENT NO. 2
TO
US$100,000,000
REVOLVING CREDIT FACILITY
DATED NOVEMBER 17, 1998
MADE AVAILABLE TO
SEACOR SMIT INC.
BY
THE FINANCIAL INSTITUTIONS
SIGNATORIES HERETO
AND
DEN NORSKE BANK ASA, AS AGENT
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October 1, 1999
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "Amendment")
is made as of the 1st day of October, 1999 by and between (i) SEACOR SMIT
INC., a corporation organized and existing under the laws of the State of
Delaware (the "Borrower"), (ii) the financial institutions who are signatories
hereto (together, the "Lenders", and each a "Lender") and (iii) DEN NORSKE BANK
ASA, a banking corporation organized and existing under the laws of Norway, as
agent for the Lenders (the "Agent"), which further amends that certain Credit
Agreement dated November 17, 1998 made by and among the Borrower, the lenders
listed in Schedule 1 thereto and the Agent, as amended by Amendment No. 1
thereto dated February 4, 1999 (the "Original Agreement").
W I T N E S S E T H T H A T:
WHEREAS, pursuant to the Original Agreement, the Lenders
made available to the Borrower a credit facility in the maximum principal amount
of U.S.$100,000,000 (the "Loan"), the proceeds of which were made available for
the purpose of repaying outstanding advances under the Existing Credit Facility
(as defined in the Original Agreement) and for general corporate purposes; and
WHEREAS, the parties desire to amend certain provisions of
the Original Agreement.
NOW, THEREFORE, in consideration of the premises and such
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged by the parties, it is hereby agreed as follows:
1. Definitions. Unless otherwise defined herein, words and
expressions defined in the Original Agreement shall bear the same meanings when
used herein.
2. Representations and Warranties. The Borrower hereby
reaffirms, as of the date hereof, each and every representation and warranty
made thereby in the Original Agreement and the Note (updated mutatis mutandis).
3. No Defaults. The Borrower hereby represents and warrants
that as of the date hereof there exists no Event of Default or any condition
which, with the giving of notice or passage of time, or both, would constitute
an Event of Default.
4. Performance of Covenants. The Borrower hereby reaffirms
that it has duly performed and observed the covenants and undertakings set forth
in the Original Agreement and the Note on its part to be performed, and
covenants and undertakes to continue to duly perform and observe such covenants
and undertakings, as amended hereby, so long as the Original Agreement, as the
same is amended hereby and may hereafter be amended or supplemented, shall
remain in effect.
5. Amendment to the Original Agreement. Subject to the
terms and conditions of this Amendment, the Original Agreement is hereby amended
and supplemented as follows:
(a) all references to "this Agreement" shall be deemed to refer to
the Original Agreement as amended hereby;
(b) Section 1.1 shall be amended by:
(1) inserting the following new definition of
"Available-for-Sale Securities" immediately following
the definition of "Assignment and Assumption
Agreement(s)":
"means securities categorized as
"available-for-sale", as defined by the Statement of
Financial Accounting Standards No. 115, "Accounting
for Certain Investments in Debt and Equity
Securities" issued by the Financial Accounting
Standards Board;"
(2) deleting the existing definition of "Cash
Equivalents" and inserting the following in place
thereof:
"means (i) freely tradable securities registered with
a public exchange in the United States having
maturities of not more than ninety (90) days from the
date of acquisition, in each case the value thereof
shall be determined in accordance with GAAP;
provided, however, that the value of any securities
of Chiles held by the Borrower or its affiliates or
securities pledged to third parties to secure
financing or otherwise, shall be excluded from such
determination, (ii) Marketable Securities and (iii)
seventy-five percent (75%) of Restricted Cash;"
(3) inserting the following new definition of
"Construction Reserve Funds" immediately following
the definition of "Consolidated Net Worth":
"means money in one or more construction reserve
funds established by the Borrower pursuant to Section
511 of the Merchant Marine Act, 1936;"
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(4) amend the definition of Funded Debt by deleting the
word "and" before the word "(iv)", inserting before
the words "less (v)" the following words:
"and (v) the aggregate total unsecured cost of debt
subject to swap agreements entered into by the
Borrower for the purpose of hedging the redemption
values of Chiles' One Hundred Ten Million Dollars
($110,000,000) 10% Senior Notes due in the year 2008
whenever the Borrower does not maintain at least one
of the following three criteria: (a) Investment Grade
Rating from Moody's, (b) Investment Grade Rating from
S&P, or (c) Funded Debt (without the inclusion of
Chiles' Swap Agreements referred to in Section
10.4)/EBITDA ratio of less than two hundred
twenty-five percent (225%)",
deleting the figure "(v)"and the substitution of
"(vi)" in lieu thereof, and by deleting the figure
"(vi)"and the substitution of "(vii)" in lieu
thereof;
(5) inserting the following new definition of
"Held-to-Maturity Securities" immediately following
the definition of "GAAP":
"means securities categorized as "held-to-maturity"
as defined by the Statement of Financial Accounting
Standards No. 115, "Accounting for Certain
Investments in Debt and Equity Securities" issued by
the Financial Accounting Standards Board;"
(6) inserting the following new definition of "Investment
Grade Rating" immediately following the definition of
"Interest Period(s)":
"means with respect to Moody's a rating of "Baa3" or
better, and with respect to S&P a rating of "BBB-" or
better;"
(7) inserting the following new definition of "Like-Kind
Exchange Funds" immediately following the definition
of "LIBOR Reference Date":
"means the funds belonging to and received by the
Borrower following the sale of assets, and held by or
on behalf of the Borrower for a period of up to six
(6) months pending a purchase of new assets
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qualifying for "like-kind exchange" treatment under
Section 1031 of the Internal Revenue Code;"
(8) inserting the following new definition of "Marketable
Securities" immediately following the definition of
"Margin":
"means Available-for-Sale Securities and
Held-to-Maturity Securities, in each case the value
thereof shall be determined in accordance with GAAP;
provided, however, that the value of any securities
of Chiles held by the Borrower or its affiliates or
securities pledged to third parties to secure
financing or otherwise, shall be excluded from such
determination;"
(9) inserting the following new definition of "Restricted
Cash" immediately following the definition of
"Reference Banks":
"means Construction Reserve Funds and Like-Kind
Exchange Funds;"
(c) Section 10.1.A.(xviii) shall be amended by deleting the
existing text and inserting the following in place thereof:
"(a) as long as the Borrower retains an Investment
Grade Rating from either Moody's or S&P, maintain, on
a consolidated basis, readily available cash or Cash
Equivalents, while at any time excluding any cash or
Cash Equivalents held by Chiles, in an aggregate
amount at least equal to the greater of (i) Thirty
Million Dollars ($30,000,000) and (ii) the twelve
(12) month projected interest expense assuming all
available credit facilities, other than any and all
Chiles Consolidated Debt, were drawn, and (b) if the
Borrower fails to retain an Investment Grade Rating
from either Moody's or S&P, maintain, on a
consolidated basis, readily available cash or Cash
Equivalents, while at any time excluding any cash or
Cash Equivalents held by Chiles, in an amount at
least equal to the greater of (i) Thirty Million
Dollars ($30,000,000) and (ii) twelve and one-half
percent (12 1/2%) of Funded Debt, on a consolidated
basis, of the Borrower;"
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and
(d) Section 10 shall be amended by inserting the following new
Section 10.4 at the end thereof:
"10.4 Chiles' Swap Agreements. The Borrower may enter
into certain swap agreements to hedge the redemption
values of Chiles' One Hundred Ten Million Dollars
($110,000,000) 10% Senior Notes due in the year 2008,
provided that the Borrower (i) is in compliance with
all the covenants in this Section 10 and (ii) the
Borrower maintains at least one of the following
three criteria: (a) Investment Grade Rating from
Moody's, (b) Investment Grade Rating from S&P, or (c)
Funded Debt (without the inclusion of Chiles' Swap
Agreements referred to herein)/EBITDA ratio of less
than two hundred twenty-five percent (225%). Should
the Borrower not be in compliance with 10.4(i) and
10.4(ii), as outlined above, then the Borrower may
not enter into any additional Chiles' Swap
Agreements, without the written consent of the
Lenders."
6. No Other Amendment. All other terms and conditions of
the Original Agreement shall remain in full force and effect and the Original
Agreement shall be read and construed as if the terms of this Amendment were
included therein by way of addition or substitution, as the case may be.
7. Promissory Note. By the execution and delivery of this
Amendment, the Borrower and the Lenders hereby consent and agree that all
references in the Note to the Original Agreement shall be deemed to refer to the
Original Agreement as amended by this Amendment.
8. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
9. Counterparts. This Amendment may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts each of which, when so executed, shall
be deemed to be an original but all such counterparts shall constitute but one
and the same agreement.
10. Headings; Amendment. In this Amendment, section
headings are inserted for convenience of reference only and shall be ignored in
the interpretation of this Amendment. This agreement cannot be amended other
than by written agreement signed by the parties hereto.
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Amendment by its duly authorized representative
on the day and year first above written.
SEACOR SMIT INC.
By /s/ Randall Blank
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Randall Blank
Executive Vice President
By special
authority for DEN
NORSKE BANK ASA,
New York Branch,
as Agent for the
Lenders and as a
Lender
By /s/ Barbara Gronquist
----------------------------------
Barbara Gronquist
First Vice President
and
By /s/ Nikolai Nachamkin
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Nikolai Nachamkin
First Vice President
Citibank, N.A.
By /s/
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Name:
Title:
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BankBoston, N.A.
By /s/
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Name:
Title:
00382.068 #104197
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