Exhibit 10.21
================================================================================
AGREEMENT FOR
A
U.S. $200,000,000
REVOLVING CREDIT FACILITY
TO BE MADE AVAILABLE TO
SEACOR SMIT INC.
BY
DEN NORSKE BANK ASA,
as Administrative Agent, Joint Lead Arranger and Lender,
FLEET NATIONAL BANK,
as Syndication Agent, Joint Lead Arranger and Lender,
NORDEA,
as Documentation Agent, Joint Lead Arranger and Lender,
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND,
as Co-Agent and Lender
AND
THE FINANCIAL INSTITUTIONS
IDENTIFIED ON SCHEDULE A,
as Lenders
================================================================================
February 5, 2002
INDEX
SECTION 1. DEFINITIONS................................................................................1
-----------
1.1. Defined Terms..............................................................................1
1.2. Computation of Time Periods; Other Definitional Provisions................................14
1.3. Accounting Terms..........................................................................14
1.4. Certain Matters Regarding Materiality.....................................................14
1.5. Forms of Documents........................................................................14
1.6. Headings..................................................................................14
SECTION 2. REPRESENTATIONS AND WARRANTIES............................................................15
------------------------------
2.1. ..........................................................................................15
(a) Due Organization and Power................................................................15
(b) Authorization and Consents................................................................15
(c) Binding Obligations.......................................................................15
(d) No Violation..............................................................................15
(e) Litigation................................................................................15
(f) No Default................................................................................15
(g) Vessel Ownership, Classification, and Insurance...........................................16
(h) Citizenship...............................................................................16
(i) Financial Statements......................................................................16
(j) Tax Returns and Payments..................................................................16
(k) Insurance.................................................................................17
(l) Solvency..................................................................................17
(m) Environmental Matters.....................................................................17
(n) Liens.....................................................................................18
(o) ERISA.....................................................................................18
(p) Foreign Trade Control Regulations.........................................................18
SECTION 3. ADVANCES OF THE FACILITY/LETTERS OF CREDIT................................................18
------------------------------------------
3.1. Advances..................................................................................18
3.2. Use of Proceeds...........................................................................19
3.3. Drawdown Notice...........................................................................19
3.4. Drawdown Notice a Warranty................................................................19
3.5. Notation of Advance on Note...............................................................20
3.6. Foreign Currency Advances.................................................................20
3.7. Letters of Credit.........................................................................20
3.8. Request for Issuance of Letter of Credit..................................................21
3.9. Letter of Credit Payments Deemed Advances.................................................21
i
3.10. Letter of Credit Participation............................................................22
SECTION 4. CONDITIONS................................................................................24
----------
4.1. Conditions Precedent to Drawdown of the Initial Advance under the Credit Facility.........24
4.2. Further Conditions Precedent..............................................................25
4.3. Break Funding Costs.......................................................................26
4.4. Satisfaction after Drawdown...............................................................26
SECTION 5. REPAYMENT, PREPAYMENT AND REDUCTION.......................................................26
-----------------------------------
5.1. Repayment.................................................................................26
5.2. Prepayment................................................................................26
5.3. Permanent Reduction of the Committed Amount of the Credit Facility........................27
5.4. Reduction of Commitment...................................................................27
SECTION 6. INTEREST AND RATE.........................................................................27
-----------------
6.1. Applicable Rate...........................................................................27
6.2. The Applicable Margin.....................................................................27
6.3. LIBOR; Interest Periods...................................................................28
6.4. Interest Payments.........................................................................28
6.5. Interest Due Only on Banking Day..........................................................29
6.6. Calculation of Interest...................................................................29
SECTION 7. PAYMENTS..................................................................................29
--------
7.1. Place of Payments, No Set Off.............................................................29
7.2. Proof of no Withholding...................................................................29
7.3. Federal Income Tax Credits................................................................30
SECTION 8. ACCOUNTS..................................................................................30
--------
8.1. The Operating Accounts....................................................................30
SECTION 9. EVENTS OF DEFAULT.........................................................................30
-----------------
9.1. ..........................................................................................30
(a) Principal and Interest Payments...........................................................30
(b) Other Payments............................................................................30
(c) Representations, etc......................................................................30
(d) Impossibility, Illegality.................................................................31
(e) Citizenship...............................................................................31
(f) Covenants.................................................................................31
(g) Other Covenants...........................................................................31
ii
(h) Indebtedness..............................................................................31
(i) Bankruptcy................................................................................31
(j) Judgments.................................................................................32
(k) Inability to Pay Debts....................................................................32
(l) Change of Control of the Borrower.........................................................32
9.2. Indemnification...........................................................................33
9.3. Application of Moneys.....................................................................33
SECTION 10. COVENANTS.................................................................................34
---------
10.1. ..........................................................................................34
(a) ..........................................................................................34
(i) Performance of Agreements............................................................34
(ii) Compliance with Covenants............................................................34
(iii) Notice of Default....................................................................34
(iv) Obtain Consents......................................................................34
(v) Financial Statements.................................................................34
(vi) Qualification to Own U.S. Flag Vessels...............................................35
(vii) Corporate Existence..................................................................35
(viii) Books, Records, etc..................................................................36
(ix) Inspection...........................................................................36
(x) Taxes................................................................................36
(xi) Compliance with Statutes, etc........................................................36
(xii) Environmental Matters................................................................36
(xiii) Evidence of Insurance................................................................37
(xiv) Maintenance of Assets................................................................37
(xv) Funded Debt/Total Capitalization.....................................................37
(xvi) Secured Debt/Total Capitalization....................................................37
(xvii) Interest Coverage Ratio..............................................................37
(xviii) Consolidated Net Worth...............................................................37
(xix) ERISA Matters........................................................................37
(xx) Notice of Change in Credit Rating....................................................37
(xxi) End of Fiscal Year...................................................................38
(b) ..........................................................................................38
(i) Liens................................................................................38
(ii) Sale of Assets.......................................................................39
(iii) Dividends............................................................................39
(iv) Limitations on Ability to Make Distributions.........................................39
(v) Changes in Business..................................................................39
(vi) Consolidation, Merger................................................................40
(vii) Use of Proceeds......................................................................40
(viii) Redemption/Repurchase of Securities..................................................40
(ix) No Money Laundering..................................................................40
(x) Limitation on Investments in Joint Ventures..........................................40
iii
(xi) Limitation on Indebtedness...........................................................40
(xiii) Negative Pledge......................................................................41
SECTION 11. ASSIGNMENT AND PARTICIPATIONS.............................................................42
-----------------------------
SECTION 12. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.........................................42
-------------------------------------------------
12.1. Illegality................................................................................42
12.2. Increased Cost............................................................................43
12.3. Replacement of Lender or Participant......................................................44
12.4. Non-availability of Funds.................................................................45
12.5. Determination of Losses...................................................................45
12.6. Compensation for Losses...................................................................45
SECTION 13. CURRENCY INDEMNITY........................................................................45
------------------
13.1. Currency Conversion.......................................................................45
13.2. Change in Exchange Rate...................................................................45
13.3. Additional Debt Due.......................................................................46
13.4. Rate of Exchange..........................................................................46
SECTION 14. FEES AND EXPENSES.........................................................................46
-----------------
14.1. Commitment Fee............................................................................46
14.2. Letter of Credit and Facing Fees and Related Charges......................................47
14.3. Administrative Fee........................................................................47
14.4. Agents' Other Fees........................................................................47
14.5. Costs, Charges and Expenses...............................................................47
14.6. Indemnification...........................................................................48
SECTION 15. APPLICABLE LAW, JURISDICTION AND WAIVER...................................................48
---------------------------------------
15.1. Applicable Law............................................................................48
15.2. Jurisdiction..............................................................................48
15.3. Waiver of Jury Trial......................................................................49
SECTION 16. THE AGENTS................................................................................49
----------
16.1. Appointment of Agents.....................................................................49
16.2. Distribution of Payments..................................................................49
16.3. Holder of Interest in Notes...............................................................49
16.4. No Duty to Examine, Etc...................................................................49
16.5. Agents as Lenders.........................................................................49
16.6. ..........................................................................................50
(a) Obligations of Agents.....................................................................50
iv
(b) No Duty to Investigate....................................................................50
(c) Reports and Notices.......................................................................50
16.7. ..........................................................................................50
(a) Discretion of Agents......................................................................50
(b) Instructions of Majority Lenders..........................................................50
16.8. Assumption re Event of Default............................................................50
16.9. No Liability of Agents and the Lenders....................................................50
16.10. Indemnification of Agents.................................................................51
16.11. Consultation with Counsel.................................................................51
16.12. Resignation...............................................................................51
16.13. Representations of Lenders................................................................51
16.14. Notification of Event of Default..........................................................52
SECTION 17. NOTICES AND DEMANDS.......................................................................52
-------------------
17.1. Notices in Writing........................................................................52
17.2. Addresses for Notice......................................................................52
17.3. Notices Deemed Received...................................................................52
SECTION 18. MISCELLANEOUS.............................................................................53
-------------
18.1. Time of Essence...........................................................................53
18.2. Unenforceable, etc.; Provisions - Effect..................................................53
18.3. References................................................................................53
18.4. Further Assurances........................................................................53
18.5. Entire Agreement; Amendments..............................................................53
18.6. Adjustments...............................................................................54
v
SCHEDULES
---------
A THE LENDERS AND THEIR COMMITMENTS
B THE VESSEL OWNING/OPERATING SUBSIDIARIES AND
OTHER SUBSIDIARIES
C THE VESSELS
D EXISTING LIENS
E EXISTING INDEBTEDNESS
F EXISTING LETTERS OF CREDIT
EXHIBITS
--------
1 NOTE
2 ADMINISTRATIVE QUESTIONNAIRE
3 FORM OF DRAWDOWN NOTICE
4 FORM OF LETTER OF CREDIT REQUEST
5 FORM OF COMPLIANCE CERTIFICATE
6 FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
vi
REVOLVING CREDIT FACILITY AGREEMENT
THIS REVOLVING CREDIT FACILITY AGREEMENT is made this 5th
day of February, 2002, and is by and among (1) SEACOR
SMIT INC., a corporation incorporated under the laws of the State of Delaware
with offices at 11200 Richmond Avenue, Houston, Texas (hereinafter called the
"Borrower"), (2) the banks and financial institutions whose names and addresses
are set out in Schedule A hereto (together with any assignee pursuant to Section
11, collectively, the "Lenders", each a "Lender"), (3) FLEET NATIONAL BANK, a
national banking association, as syndication agent (the "Syndication Agent"),
(4) DEN NORSKE BANK ASA, a bank incorporated under the laws of the Kingdom of
Norway, acting through its New York branch, with offices at 200 Park Avenue, New
York, New York, as administrative agent ( the "Administrative Agent"), (5)
NORDEA, a Finnish banking corporation, acting through Nordea Bank Finland Plc,
New York Branch, as documentation agent (the "Documentation Agent"), and (6) THE
GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, a bank incorporated under the laws
of Scotland, as Co-Agent (the "Co-Agent" and together with the Syndication
Agent, the Administrative Agent and the Documentation Agent, the "Agents").
WITNESSETH THAT:
Whereas, at the request of the Borrower, each of the Agents has
agreed to act in its respective capacity as set forth herein and the Lenders
have agreed to provide to the Borrower a revolving credit facility in the amount
of $200,000,000 on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and adequacy whereof are hereby acknowledged, the parties hereto agree
as set forth below:
SECTION 1. DEFINITIONS
-----------
1.1. Defined Terms. In this Agreement the words and expressions
specified below shall, except where the context otherwise requires, have the
meanings attributed to them below:
"Acceptable Accounting Firm" means Arthur Anderson & Co., L.L.P. or any other
- ---------------------------- firm of independent certified public or
chartered accountants of international
reputation selected by the Borrower and
acceptable to the Administrative Agent;
"Acquisition Subsidiary" shall mean a direct or indirect Subsidiary of
- ------------------------ the Borrower formed for the purpose of acquiring
New Subsidiaries which Subsidiary shall not be
an existing Vessel Owning/Operating Subsidiary
at the time of the acquisition of the relevant
New Subsidiaries and into which only those
assets necessary to consummate the relevant
acquisition shall be transferred;
"Administrative Agent" shall have the meaning ascribed thereto in the
- ---------------------- preamble;
"Administrative Questionnaire" shall mean, with respect to each Bank, an
- ------------------------------ administrative questionnaire substantially in
the form of Exhibit 2 hereto, submitted to the
Administrative Agent (with a copy to the
Borrowers) duly completed by such Bank;
"Advance" means any Dollar Advance or Foreign Currency
------- Advance;
"Affiliate" shall mean, with respect to any Person, (i) any
--------- Person that directly, or indirectly through one
or more intermediaries, Controls such Person (a
"Controlling Person") or (ii) any Person (other
than such Person or a Subsidiary of such Person)
which is Controlled by or is under common
Control with a Controlling Person;
"Agreement" means this revolving credit facility agreement
- ----------- as the same may be amended, restated, modified
or supplemented from time to time;
"Applicable Margin" shall have the meaning ascribed thereto in
----------------- Section 6.1;
"Applicable Rate" means any rate of interest on any Advance from
--------------- time to time applicable pursuant to Section 6.1;
"Assignment and Assumption shall mean the Assignment and Assumption
- -------------------------- Agreement(s) executed pursuant to Section 11
Agreement(s)" substantially in the form of Exhibit 6;
- -------------
"Banking Day(s)" means day(s) on which banks are open for the
- ---------------- transaction of business of the nature required
by this Agreement in the place or places from
time to time specified;
"Base Rate" means the higher of (i) the Letter of Credit
- ----------- Issuer's Prime Rate and (ii) one-half percent
(1/2%) above the Federal Funds Effective Rate;
"Basis Point" or the symbol means one one-hundredth of one percent (0.01%);
- ---------------------------
"bp"
- ----
"Change of Control" means (a) any "person" (as such term is used in
----------------- Sections 13(d) and 14(d) of the Exchange Act)
becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act),
2
directly or indirectly, of more than fifty
percent (50%) of the total voting power of the
Borrower or (b) the Board of Directors of the
Borrower ceases to consist of a majority of the
existing directors or directors elected by the
existing directors; means the Internal Revenue
Code of 1986, as amended, and any successor
statute
"Code" and the regulations promulgated thereunder;
----
"Committed Amount" means Two Hundred Million Dollars
- ------------------ ($200,000,000), as reduced from time to time
pursuant to Section 5.3, being the maximum
aggregate principal amount in Dollars of the
Advances and Letters of Credit which may be
outstanding at any time under the Credit
Facility;
"Commitment" shall mean in relation to a Lender, the amount
- ------------ of the Credit Facility set out opposite its name
in Schedule A hereto or, as the case may be, in
any relevant Assignment and Assumption
Agreement, as the same may be reduced from time
to time as provided by Section 5.4;
"Compliance Certificate" means a certificate of the chief financial
- ------------------------ officer of the Borrower in the form set out in
Exhibit 5 or in such other form as the
Administrative Agent may reasonably require;
"Consolidated Net Worth" for any period, shall mean, for any company, the
- ------------------------ sum of such company's common and preferred stock
(excluding any capital stock subject to
mandatory redemption) and additional
paid-in-capital, plus retained earnings (minus
accumulated deficit) and currency translation
adjustments, all as shown on the consolidated
balance sheet of such company and its
subsidiaries as determined in accordance with
GAAP;
"Consolidated Subsidiary" shall mean a Subsidiary the financial results
----------------------- of which are reflected in the Borrower's
consolidated financial statements;
"Consolidated Subsidiary shall mean a guaranty issued by a Consolidated
- ------------------------ Subsidiary of obligations of the types listed
Guaranty" in sub-clauses (i) through (iii) of the
- --------- definition of Subsidiary Funded Debt of other
Consolidated Subsidiaries but excluding, in the
case of a Consolidated Subsidiary which is not
a Wholly-Owned Subsidiary, that proportion of
the amount of such guaranty which represents
the minority interest holders' share of such
Guaranty;
3
"Co-Agent" shall have the meaning ascribed thereto in the
-------- preamble;
"Credit Facility" means the sums advanced or to be advanced by
- ----------------- the Lenders to the Borrower and the Letters of
Credit to be issued by the Letter of Credit
Issuer for the account of the Borrower in the
maximum principal amount of $200,000,000, all
pursuant to, and subject to the terms of, this
Agreement;
"Credit Facility Balance" means the sum of (i) the amount of the Dollar
- ------------------------- Advances, (ii) the amount of the then Dollar
Equivalent of the Foreign Currency Advances and
(iii) the amount of the Letter of Credit
Outstandings at any relevant time, all as
reduced by payments and increased by Advances
and Letters of Credit pursuant to the terms of
this Agreement;
"Credit Period" means the period from the Drawdown Date of the
- --------------- initial Advance made hereunder to the date upon
which the Advances and all other amounts due to
the Agents and the Lenders pursuant to this
Agreement and the Notes are repaid or prepaid
in full and all commitments to extend credit
under this Agreement have been terminated;
"Creditors" shall mean, together, the Agents and the
--------- Lenders, each, a "Creditor";
"CRN Group" means CRN Holdings, Inc., a corporation
--------- organized under the laws of the State of
Delaware, and any of its direct and indirect
subsidiaries now or hereafter acquired;
"Default Rate" shall have the meaning ascribed thereto in
------------ Section 6.1;
"Documentation Agent" shall have the meaning ascribed thereto in the
------------------- preamble;
"Dollars" and the sign "$" means the legal currency, at any relevant time
------------------------- hereunder, of the United States of America and,
in relation to all payments hereunder, in same
day funds settled through the New York Clearing
House Interbank Payments System (or such other
Dollar funds as may be determined by the
Administrative Agent to be customary for the
settlement in New York City of banking
transactions of the type herein involved);
4
"Dollar Advance" means any amount advanced in Dollars to the
- ---------------- Borrower on any Drawdown Date;
"Dollar Equivalent" means any amount of a foreign currency
- ------------------- converted to Dollars at the Exchange Rate;
"Drawdown Dates" means the dates, each being a Banking Day
- ---------------- falling prior to the Termination Date, upon
which the Borrower has requested that an
Advance be made available to the Borrower or an
Advance is deemed to have been made due to a
drawing under any Letter of Credit;
"Drawdown Notice" shall have the meaning ascribed thereto in
--------------- Section 3.3;
"EBITDA" means on a consolidated basis, the aggregate,
------ to be measured on a trailing twelve (12) month
basis, of (i) operating income (before
deductions for interest, taxes, depreciation
and amortization), (ii) interest income and
(iii) "Equity in Net Earnings of Fifty Percent
(50%) or Less Owned Companies" (as such term is
used in the Borrower's published financial
reports).
"Environmental Affiliate" means any person or entity the liability of
- ------------------------- which for Environmental Claims the Borrower may
have assumed by contract or operation of law;
"Environmental Claim" shall have the meaning ascribed thereto in
- --------------------- Section 2.1(m);
"ERISA" means the Employment Retirement Income Security
- ------- Act of 1974, as amended;
"ERISA Affiliate" means a trade or business (whether or not
- ----------------- incorporated) which is under common control
with the Borrower within the meaning of
Sections 414(b),(c),(m) or (o) of the Code;
"Euros" and the symbol means the legal currency, at any relevant time
- ---------------------- hereunder, of the member countries of the
"(euro)" European Union who have adopted the Euro as
- -------- legal tender;
"Events of Default" means any of the events set out in Section 9.1;
- -------------------
"Exchange Act" shall mean the Securities and Exchange Act of
- -------------- 1934, as amended;
"Exchange Rate" means the exchange rate offered by the
- --------------- Administrative Agent or Letter of Credit
Issuer, as the case may be, of Dollars for a
particular foreign currency or vice versa in
5
accordance with its normal practices on the
relevant date, in either case, including any
costs associated with the relevant exchange
contract or, if it does not then offer such
exchange rates in respect of such foreign
currency, such exchange rate in respect of such
currency as the Administrative Agent or the
Letter of Credit Issuer, as the case may be,
deems reasonable;
"Existing Credit Facility" the credit facility provided under that certain
- -------------------------- credit agreement, dated November 17, 1998 as
amended by Amendment No. 1 and Amendment No. 2
thereto dated February 4, 1999 and October 1,
1999, respectively, among the Borrower, the
financial institutions named therein as
Lenders, and Den norske Bank ASA as Agent ;
"Existing Letters of Credit" shall have the meaning ascribed thereto in
-------------------------- Section 3.7;
"Extended Letters of Credit" shall have the meaning ascribed thereto in
-------------------------- Section 3.7;
"Facing Fee" shall have the meaning ascribed thereto in
---------- Section 14.2;
"Federal Funds Effective means, for any period, a fluctuating interest
- ------------------------ rate equal for each day during such period to
Rate" 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 Banking Day, for the next
preceding Banking Day) by the Federal Reserve
Bank of New York, or, if such rate is not so
published for any day which is a Banking Day,
the average of the quotations for such day on
such transactions received by the
Administrative Agent from three (3) Federal
Funds brokers of recognized standing selected
by the Administrative Agent;
"Foreign Currency" means any of Pounds Sterling, Euros, Singapore
---------------- Dollars or any other currency which shall be
freely convertible into U.S. Dollars;
"Foreign Currency Advance" means an Advance denominated in a Foreign
------------------------ Currency;
"Funded Debt" shall mean, on a consolidated basis, the sum of
----------- (i) indebtedness for borrowed money, all
obligations evidenced by bonds, debentures,
notes or similar instruments, and purchase
money obligations which, in accordance with
GAAP, would be shown on the consolidated
balance sheet as a liability, (ii) all
obligations arising under letters of credit,
6
(iii) all obligations as lessee under leases
which have been, in accordance with GAAP,
recorded as capitalized lease obligations, (iv)
guaranties of non-consolidated entity
obligations but excluding (v) indebtedness
which is consolidated in the Borrower's
published financial statements in accordance
with GAAP but which represents a minority
interest holders' share of such indebtedness
unless such minority holders' share has been
guaranteed by the Borrower or a Subsidiary;
"GAAP" shall have the meaning ascribed thereto in
---- Section 1.3;
"Indebtedness" of any Person shall mean and include all
- -------------- obligations of such Person which in accordance
with GAAP shall be classified upon a balance
sheet of such Person as liabilities of such
Person;
"Interest Coverage Ratio" means, on a consolidated basis, (a) EBITDA
----------------------- divided by (b) interest payments (including
interest attributable to capitalized leases)
made during the four (4) fiscal quarters
preceding the date on which such ratio is
determined;
"Interest Notice" means a notice to the Administrative Agent
--------------- specifying the duration of the relevant
Interest Period;
"Interest Period(s)" means period(s) of one (1), two (2), three (3),
- -------------------- six (6), nine (9) or twelve (12) months
selected by the Borrower or such longer
period(s) as the Lenders may agree;
"Investment" means (i) lending money or credit or making
- ------------ advances to any Person, (ii) purchasing or
acquiring any stock, obligations or securities
of, or any other interest in, or making capital
contributions to any Person or (iii)
guaranteeing the debt or obligations of any
other Person;
"Investment Grade Rating" means with respect to Moody's a rating of
- ------------------------- "Baa3" or better, and with respect to S&P a
rating of "BBB-" or better;
"Issuing Subsidiary" shall mean, the Subsidiary which is the primary
------------------ obligor on Subsidiary Funded Debt; provided
that in the case of Subsidiary Funded Debt
where (i) one or more other Subsidiaries are
jointly or jointly and severally liable in
respect thereof (other than by way of guaranty)
or (ii) no Subsidiary is the primary obligor in
respect of a Subsidiary Funded Debt but two or
more Subsidiaries have issued Non-Consolidated
7
Entity Guaranties in respect of the same
obligation, the Subsidiary liable in respect
thereof with the highest book value shall be
deemed to be such primary obligor;
"Joint Venture" shall mean at any date any Person (other than a
- --------------- Subsidiary) in which the Borrower or any
Subsidiary has an ownership interest or other
interests in profits or loss which would be
accounted for in the consolidated financial
statements of the Borrower and its consolidated
Subsidiaries by the equity method if such
statements were prepared as of such date;
"L/C Supportable Obligation" means such obligations of the Borrower as are
- ---------------------------- not inconsistent with the issuance policies of
the applicable Letter of Credit Issuer;
"Letter of Credit" shall have the meaning ascribed thereto in
---------------- Section 3.7;
"Letter of Credit Fee" shall have the meaning ascribed thereto in
-------------------- Section 14.2;
"Letter of Credit Issuer" means, with respect to each Letter of Credit,
- ------------------------- the Lender (being one of the Agents) which, at
the request of the Borrower, issues the same;
"Letter of Credit means, at any time, the aggregate Stated Amount
- ----------------- of all outstanding Letters of Credit, less any
Outstandings" drawings previously made thereunder;
- -------------
"Letter of Credit shall have the meaning ascribed thereto in
- ----------------- Section 3.10;
Participant"
- ------------
"Letter of Credit means, in relation to a Lender, the percentage
- ----------------- of the Credit Facility set out opposite its
Participant Percentage" name in Schedule A hereto; provided, however,
- ----------------------- that in the case of Extended Letters of Credit,
the percentage shall be adjusted to include
only the Commitments of the Lenders
participating in the Extended Letters of
Credit;
"Letter of Credit Request" shall have the meaning ascribed thereto in
- -------------------------- Section 3.8;
"LIBOR" means the rate of interest for deposits, in
- ------- Dollars or the relevant Foreign Currency, as
the case may be, of an amount equivalent to the
relevant Advance (or portion thereof), for
periods equivalent to the applicable Interest
Period, which appear at or about 11:00 A.M.
(London Time) on the day falling two (2) LIBOR
Reference Days prior to the first day of the
8
relevant Interest Period as displayed on page
LIBOR01 of the Reuters screen, in the case of
Dollars, Pounds Sterling, or Euros, or page
SGDF= of the Reuters screen, in the case of
Singapore Dollars (or such other page as may
replace such page), as the case may be, on such
system or on any other system of the
information vendor for the time being
designated by the British Bankers' Association
to calculate the BBA Interest Settlement Rate
(as defined in the British Bankers'
Association's Recommended Terms and Conditions
("BBAIRS" terms) dated August 1985)), provided,
however, that, if on any date of determination
of the Applicable Rate, no rate is so displayed
for amounts equivalent to the relevant Advance
(or portion thereof) and for periods equivalent
to the applicable Interest Period, LIBOR shall
be equal to the arithmetic mean (rounded upward
if necessary to four decimal places) of the
rates respectively quoted to the Administrative
Agent by each of the Reference Banks as the
offered rate for deposits of Dollars or the
relevant Foreign Currency, as the case may be,
in an amount approximately equal to the amount
in relation to which LIBOR is to be determined
for a period equivalent to such period to prime
banks in the London Interbank Market at or
about 11:00 a.m. (London time) on the second
LIBOR Reference Day before the first day of
such period;
"LIBOR Reference Date" days on which banks in the London interbank
- ---------------------- market generally will provide quotations for
deposits in the relevant currencies;
"Lien" shall mean any interest in property securing an
---- obligation owed to, or a claim by, a Person
other than the owner of the property, whether
such interest is based on the common law,
statute or contract, and including but not
limited to the security interest lien arising
from a mortgage, encumbrance, pledge,
conditional sale, title retention agreement or
trust receipt or a lease, consignment or
bailment for security purposes or any
arrangement having substantially the same legal
effect as the foregoing.
"List of Liens" shall mean a list of Liens in respect of
------------- Secured Debt on Vessels;
9
"Majority Lenders" shall mean Lenders whose aggregate Commitments
---------------- exceed fifty percent (50%) of the total
Commitments;
"Material Adverse Change" shall mean the occurrence of an event or
----------------------- condition which (a) materially impairs the
ability of (1) the Borrower to meet any of its
obligations with regard to the Credit Facility
and the financing arrangements established in
connection therewith or (2) the Borrower and
the Subsidiaries to meet any of their
respective other obligations that are material
to the Borrower and the Subsidiaries considered
as a whole or (b) have a material adverse
effect on the business, assets, operations,
property or financial condition of the Borrower
and the Subsidiaries considered as a whole;
"Moody's" shall mean Moody's Investors Service, Inc., a
------- credit rating agency;
"New Subsidiaries" shall mean a group of corporations or other
- ------------------ entities of which the Borrower or a Subsidiary
acquires legally or beneficially greater than
fifty percent (50%) of the issued and
outstanding stock or other interest in each
corporation or entity in the group and has more
than fifty percent (50%) of the total voting
power of the voting stock or other interest in
such corporations or entities;
"Non-Consolidated Entity" shall mean an entity which is not a
- ------------------------- Consolidated Subsidiary;
"Non-Consolidated Entity shall mean a guaranty issued by a Consolidated
- ------------------------ Subsidiary of obligations of Non-Consolidated
Guaranty" Entities of the types listed in sub-clauses (i)
- --------- through (iii) of the definition of Subsidiary
Funded Debt but excluding, in the case of a
Consolidated Subsidiary which is not a
Wholly-Owned Subsidiary, that proportion of the
amount of such Guaranty which represents the
minority interest holders' share of such
Guaranty;
"Note" means a promissory note to be executed by the
- ------ Borrower in favor of a Lender to evidence the
Advances of the Credit Facility made by such
Lender substantially in the form of Exhibit 1
or in such other form as the Administrative
Agent may agree;
"Operating Accounts" shall have the meaning ascribed thereto in
- -------------------- Section 8.1;
10
"Other Subsidiaries" shall mean, as it relates to any Subsidiary
- -------------------- Funded Debt, those Subsidiaries liable in
respect thereof other than the Issuing
Subsidiary;
"Permitted Liens" means any of the liens permitted under Section
--------------- 10.1(b)(i);
"Person" shall mean an individual, partnership,
- -------- corporation, limited liability company,
business trust, bank, trust company, 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;
"Plan" means any employee benefit plan covered by
- ------ Title IV of ERISA maintained or contributed by
the Borrower or any Subsidiary or any ERISA
Affiliate;
"Pounds Sterling" and the means the legal currency, at any relevant time
- ------------------------- hereunder, of the United Kingdom;
sign "(pound)"
- --------------
"Prime Rate" means the rate which the relevant Letter of
---------- time as its prime lending rate, the Prime Rate
to change when and as such prime Credit Issuer
announces from time to lending rate changes;
"Reference Banks" means the banks chosen from time to time by the
- ----------------- British Bankers' Association for the purpose of
establishing Interest Settlement Rates;
"Regulation T" shall mean Regulation T of the Board of
- -------------- Governors of the Federal Reserve System, as in
effect from time to time;
"Regulation U" shall mean Regulation U of the Board of
- -------------- Governors of the Federal Reserve System, as in
effect from time to time;
"Regulation X" shall mean Regulation X of the Board of
- -------------- Governors of the Federal Reserve System, as in
effect from time to time;
"S&P" shall mean Standard & Poor's Rating Services, a
--- credit rating agency;
"Secured Debt" means, for the Borrower, on a consolidated
------------ basis, the aggregate of any Indebtedness
secured or collateralized by a Lien;
"Singapore Dollars and means the legal currency, at any relevant time
- ---------------------- hereunder, of Singapore;
the symbol "SGD"
- ----------------
11
"Stated Amount" means with respect to each Letter of Credit the
- --------------- maximum amount available to be drawn thereunder
(regardless of whether any conditions for
drawing could then be met);
"Subsidiaries" means the corporations or other entities listed
on Schedule B (including, without limitation,
the Vessel Owning/Operating Subsidiaries) of
which the Borrower owns legally or beneficially
greater than fifty percent (50%) of the issued
and outstanding stock or other interest in such
entity and has more than fifty percent (50%) of
the total voting power of the voting stock or
other interest in such corporation or other
entity, together with any other corporations or
other entities now or hereafter in existence of
which the Borrower owns legally or beneficially
greater than fifty percent (50%) of the issued
and outstanding stock or other interest in such
entity and has more than fifty percent (50%) of
the total voting power of the voting stock or
other interest in such corporation or other
entity;
"Subsidiary Funded Debt" shall mean, as to each Subsidiary, the sum of
---------------------- (i) indebtedness for borrowed money, all
obligations evidenced by bonds, debentures,
notes or similar instruments, and purchase
money obligations which, in accordance with
GAAP, would be shown on the balance sheet of
such Subsidiary as a liability if a balance
sheet were actually prepared in accordance with
GAAP for such Subsidiary, (ii) all obligations
arising under letters of credit in respect of
which such Subsidiary is liable, (iii) all
obligations as lessee under leases which have
been, in accordance with GAAP, recorded as
capitalized lease obligations on the
consolidated balance sheet of the Borrower and
would so appear on such Subsidiary's balance
sheet if a balance sheet were prepared in
accordance with GAAP for such Subsidiary, (iv)
Consolidated Subsidiary Guaranties and
Non-Consolidated Entity Guaranties, in each
case, up to the maximum amount guaranteed under
the terms of any such guaranty but excluding
(v) indebtedness which is consolidated in the
Borrower's published financial statements in
accordance with GAAP and would so appear on
such Subsidiary's balance sheet if a balance
sheet were prepared in accordance with GAAP for
12
such Subsidiary but which represents a minority
interest holders' share of such indebtedness
unless such minority holders' share has been
guaranteed by such Subsidiary;
"Syndication Agent" shall have the meaning ascribed thereto in the
----------------- preamble;
"Taxes" means any present or future income or other
----- taxes, levies, duties, charges, fees,
deductions or withholdings of any nature now or
hereafter imposed, levied, collected, withheld
or assessed by any taxing authority whatsoever,
except for taxes on or measured by the overall
net income of the Lenders imposed by their
respective jurisdiction of incorporation or
domicile of the lending office making the
Advances or issuing any Letter of Credit or any
governmental subdivision or taxing authority of
any thereof or by any other taxing authority
having jurisdiction over any Agent or Lender
(unless such jurisdiction is asserted solely by
reason of the activities of the Borrower or any
Subsidiary);
"Termination Date" means the day falling five (5) years after the
- ------------------ date hereof or, if such day is not a Banking
Day, the next following Banking Day, unless
such next following Banking Day falls in the
following month, in which case the Termination
Date shall be the immediately preceding Banking
Day;
"Total Capitalization" for any company, means, on a consolidated
-------------------- basis, the aggregate of Funded Debt and
Consolidated Net Worth;
"Underlying Subsidiary shall mean the outstanding principal amount of
- ---------------------- Subsidiary Funded Debt issued or incurred by an
Funded Debt" Issuing Subsidiary;
- ------------
"Vessel Owning/Operating those Subsidiaries designated as Vessel
- ------------------------ Owning/Operating Subsidiaries on Schedule B,
Subsidiaries" together with any future subsidiaries now or
- ------------- hereafter acquired which either own or operate
Vessels, provided, however, that the CRN Group
shall not be deemed to be Vessel
Owning/Operating Subsidiary;
"Vessels" means any vessels now or hereafter more than
- --------- fifty percent (50%) owned, directly or
indirectly, by a Vessel Owning/Operating
Subsidiary;
"Wholly Owned Subsidiaries" means the Subsidiaries of which the Borrower
- --------------------------- owns legally or beneficially one hundred
percent (100%) of the issued and outstanding
13
stock or other interest in such entity and has
one hundred percent (100%) of the total voting
power of the voting stock or other interest in
such corporation or other entity.
1.2. Computation of Time Periods; Other Definitional Provisions. In
this Credit Facility Agreement and the Notes, in the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding"; words importing either gender include the other gender; references
to "writing" include printing, typing, lithography and other means of
reproducing words in a tangible visible form; the words "including," "includes"
and "include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections), exhibits,
annexes or schedules are to this Credit Facility Agreement or the Notes, as
applicable; references to agreements and other contractual instruments
(including this Credit Facility Agreement and the Notes) shall be deemed to
include all subsequent amendments, amendments and restatements, supplements,
extensions, replacements and other modifications to such instruments (without,
however, limiting any prohibition on any such amendments, extensions and other
modifications by the terms of this Credit Facility Agreement or the Notes);
references to any matter that is "approved" or requires "approval" of a party
shall mean approval given in the sole and absolute discretion of such party
unless otherwise specified.
1.3. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles as in effect from time to time in the United States of America
consistently applied ("GAAP") and all financial statements submitted pursuant
to this Agreement shall be prepared in accordance with, and all financial data
submitted pursuant hereto shall be derived from financial statements prepared
in accordance with, GAAP.
1.4. Certain Matters Regarding Materiality. To the extent that any
representation, warranty, covenant or other undertaking of the Borrower in this
Credit Facility Agreement is qualified by reference to those which are not
reasonably expected to result in a "Material Adverse Effect" or language of
similar implication, no inference shall be drawn therefrom that any Agent or
Lender has knowledge or approves of any noncompliance by the Borrower with any
governmental rule.
1.5. Forms of Documents. Except as otherwise expressly provided in
this Credit Facility Agreement, references to documents or certificates
"substantially in the form" of Exhibits to another document shall mean that
such documents or certificates are duly completed in the form of the related
Exhibits with substantive changes subject to the provisions of Section 18.5 of
this Credit Facility Agreement.
1.6. Headings. In this Agreement, section headings are inserted for
convenience of reference only and shall not be taken into account in the
interpretation hereof.
14
SECTION 2. REPRESENTATIONS AND WARRANTIES
------------------------------
2.1. In order to induce the Agents and the Lenders to enter into this
Agreement and to make the Advances and to issue and/or participate in Letters
of Credit as provided for herein, the Borrower hereby represents and warrants
to the Agents and the Lenders (which representations and warranties shall
survive the execution and delivery of this Agreement and the Notes and the
making of the Advances and the issuance of Letters of Credit) that:
(a) Due Organization and Power. The Borrower and each of the
Subsidiaries are duly formed and are validly existing in good standing under the
laws of their respective jurisdictions of incorporation, have duly qualified and
are authorized to do business as a foreign corporation in each jurisdiction
wherein the nature of the business transacted thereby makes such qualification
necessary, have full power to carry on their respective businesses as now being
conducted and, in the case of the Borrower, to enter into and perform the
Borrower's obligations under each of this Agreement and the Notes and have
complied with all statutory, regulatory and other requirements relative to such
businesses and such agreements the noncompliance with which could reasonably be
expected to give rise to a Material Adverse Change;
(b) Authorization and Consents. All necessary corporate action
has been taken to authorize, and all necessary consents and authorizations have
been obtained and remain in full force and effect to permit, the Borrower to
enter into and perform its obligations under each of this Agreement and the
Notes and to permit the Borrower to borrow, service and repay the Advances and,
as of the date of this Agreement, no further consents or authorizations are
necessary for the service and repayment of the Advances or any part of any
thereof;
(c) Binding Obligations. Each of this Agreement and the Notes
constitutes legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with its terms, except to the extent that
such enforcement may be limited by equitable principles, principles of public
policy or applicable bankruptcy, insolvency, reorganization, moratorium or other
laws affecting generally the enforcement of creditors' rights;
(d) No Violation. The execution and delivery of, and the
performance of the provisions of, this Agreement and the Notes do not, and will
not during the Credit Period, contravene any applicable law or regulation
existing at the date hereof or any contractual restriction binding on the
Borrower or its certificate of incorporation or by-laws;
(e) Litigation. Except as otherwise disclosed in the 2000
annual report of the Borrower or the 10Q report of the Borrower for the period
ending September 30, 2001, no action, suit or proceeding is pending or overtly
threatened against the Borrower or any of the Subsidiaries before any court,
board of arbitration or administrative agency which could result in any Material
Adverse Change;
(f) No Default. Except as otherwise disclosed in writing to
the Administrative Agent on or prior to the date hereof, neither the Borrower
nor any of the Subsidiaries are in default under any agreement by which any
thereof is bound, nor are any thereof in default in respect of any financial
15
commitment or obligation, where such default could result in any Material
Adverse Change;
(g) Vessel Ownership, Classification, and Insurance. As of the
date hereof:
(i) each of the Vessels is owned as listed on Schedule C, free
and clear of all liens of record except as otherwise set forth on
Schedule D and duly registered in the name of its owner under the flag
as listed on Schedule C;
(ii) except as otherwise set forth on Schedule C, each of the
Vessels is classed in the highest classification and rating for vessels
of the same age and type with the American Bureau of Shipping, Lloyd's
Register of Shipping, Det norske Veritas, Bureau Veritas, Germanischer
Lloyd or other classification society acceptable to the Administrative
Agent without any material outstanding recommendations; and
(iii) each of the Vessels is insured in accordance with
standard industry practice, including, without limitation, coverage for
hull and machinery, war risk and protection & indemnity (evidence of
which shall include, without limitation, cover notes, certificates of
entry or such other evidence as shall be reasonably satisfactory to the
Administrative Agent);
(h) Citizenship. Each of the Vessel Owning/Operating
Subsidiaries which owns a Vessel registered under the laws and flag of the
United States of America is eligible to document a United States flag vessel
within the meaning of 46 App. U.S.C.ss.12102(a) and, if any such Vessel is
operating in the coastwise trade, within the meaning of Section 2 of the United
States Shipping Act, 1916, as amended (46 App. U.S.C.ss. 802), the Vessel
Owning/Operating Subsidiary owning or operating same is qualified to own and
operate vessels in the coastwise trade;
(i) Financial Statements. Except as otherwise disclosed in
writing to the Lenders on or prior to the date hereof, all financial statements,
information and other data furnished by the Borrower to the Lenders are complete
and correct, and such financial statements have been prepared in accordance with
GAAP and accurately and fairly present the financial condition of the parties
covered thereby as of the respective dates thereof and the results of the
operations thereof for the period or respective periods covered by such
financial statements. Since such date or dates there has been no Material
Adverse Change and neither the Borrower nor any of the Subsidiaries have any
contingent obligations, liabilities for taxes or other outstanding financial
obligations which on a consolidated basis are material in the aggregate, except
as disclosed in such statements, information and data;
(j) Tax Returns and Payments. The Borrower and each of the
Subsidiaries have filed all tax returns required to be filed thereby and have
paid all taxes payable thereby which have become due, other than those not yet
delinquent or the non-payment of which would not give rise to a Material Adverse
Change and except for those taxes being contested in good faith and by
appropriate proceedings or other acts and for which adequate reserves have been
set aside on the books thereof;
16
(k) Insurance. Each of the Borrower and the Subsidiaries have
insured their respective properties, assets and businesses against such risks
and in such amounts as are required by law and as are customary for comparable
companies engaged in similar businesses;
(l) Solvency. On the date of the making of the initial Advance
and both immediately before and immediately after giving effect to all the
transactions contemplated by this Agreement and the other documents referred to
herein to occur on the date of the making of the initial Advance and as of the
date hereof, (i) the sum of the Borrower's property (on a consolidated basis),
at a fair valuation, does and will exceed its liabilities (on a consolidated
basis), including contingent liabilities, (ii) the present fair salable value of
the Borrower's assets (on a consolidated basis) is not and shall not be less
than the amount that will be required to pay the Borrower's probable liability
on its then existing debts (on a consolidated basis), including contingent
liability, as they mature, (iii) the Borrower (on a consolidated basis) does not
and will not have unreasonably small capital with which to continue its
business, and (iv) the Borrower (on a consolidated basis) has not incurred, does
not intend to incur and does not believe it will incur debts beyond its ability
to pay such debts as they mature;
(m) Environmental Matters. Except as heretofore disclosed in
writing to the Lenders (i) the Borrower and each of the Subsidiaries are now and
will continue to be, to the extent required, in compliance with all applicable
United States federal and state, local, foreign and international laws,
regulations, conventions and agreements relating to pollution prevention or
protection of human health or the environment (including, without limitation,
ambient air, surface water, ground water, navigable waters, waters of the
contiguous zone, ocean waters and international waters), including, without
limitation, laws, regulations, conventions and agreements relating to (1)
emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous materials, oil, hazardous
substances, petroleum and petroleum products and by-products ("Materials of
Environmental Concern"), or (2) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Materials of
Environmental Concern ("Environmental Laws") (except, as to all of the above,
where the failure to do so would not be reasonably likely to result in a
Material Adverse Change); (ii) the Borrower and each of the Subsidiaries now
have and will continue to have, to the extent required, all permits, licenses,
approvals, rulings, variances, exemptions, clearances, consents or other
authorizations required under applicable Environmental Laws ("Environmental
Approvals") and are now and will continue to be, to the extent required, in
compliance with all Environmental Approvals required to operate their respective
businesses as then being conducted (except where the failure to comply with,
obtain or renew such permits, licenses, rulings, variances, exemptions,
clearances, consents or other authorizations would not be reasonably likely to
result in a Material Adverse Change); and (iii) neither the Borrower nor any of
the Subsidiaries have received any notice of any claim, action, cause of action,
investigation or demand by any Person, entity, enterprise or government, or any
political subdivision, intergovernmental body or agency, department or
instrumentality thereof, alleging potential liability which would reasonably be
likely to result in a Material Adverse Change, or a requirement to incur, any
investigatory costs, cleanup costs, response and/or remedial costs (whether
incurred by a governmental entity or otherwise), natural resources, property
and/or personal injury damages, attorneys' fees and expenses, or fines or
17
penalties, in each case arising out of, based on or resulting from (1) the
presence, or release or threat of release into the environment, of any Materials
of Environmental Concern at any location, whether or not owned by the Borrower
or any of the Subsidiaries, or (2) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law or Environmental
Approval ("Environmental Claim") (other than Environmental Claims that have been
fully and finally adjudicated or otherwise determined and all fines, penalties
and other costs, if any, payable by the Borrower or any of the Subsidiaries in
respect thereof have been paid in full or which are fully covered by insurance
(including permitted deductibles)), if such costs, damages, fees, expenses,
fines and/or penalties on a consolidated basis are material in the aggregate;
(n) Liens. Other than as disclosed on Schedule D, there are no
Liens in respect of Secured Debt on any property owned by the Borrower or any
Subsidiary of the Borrower;
(o) ERISA. The execution and delivery of this Credit Facility
Agreement and the consummation of the transactions hereunder will not involve
any prohibited transaction within the meaning of ERISA or Section 4975 of the
Code and no condition exists or event or transaction has occurred in connection
with any Plan resulting from the failure to comply with ERISA which is
reasonably likely to result in the Borrower or any Subsidiary or any ERISA
Affiliate incurring any liability, fine or penalty which individually or in the
aggregate would have a material adverse effect. Prior to the date hereof, the
Borrower has delivered to the Administrative Agent a list of all the employee
benefit plans to which the Borrower or any Subsidiary or any ERISA Affiliate is
a "party in interest" (within the meaning of Section 3(14) of ERISA) or a
"disqualified person" (within the meaning of Section 4975(e)(2) of the Code);
and
(p) Foreign Trade Control Regulations. None of the
transactions contemplated herein will violate any of the provisions of the
Foreign Assets Control Regulations of the United States of America (Title 31,
Code of Federal Regulations, Chapter V, Part 500, as amended), any of the
provisions of the Cuban Assets Control Regulations of the United States of
America (Title 31, Code of Federal Regulations, Chapter V, Part 515, as
amended), any of the provisions of the Libyan Sanctions Regulations of the
United States of America (Title 31, Code of Federal Regulations, Chapter V, Part
550, as amended), any of the provisions of the Iranian Transactions Regulations
of the United States of America (Title 31, Code of Federal Regulations, Chapter
V, Part 560, as amended), any of the provisions of the Iraqi Sanctions
Regulations (Title 31, Code of Federal Regulations, Chapter V, Part 575, as
amended), any of the provisions of the Federal Republic of Yugoslavia (Serbia
and Montenegro) Sanctions Regulations (Title 31, Code of Federal Regulations,
Chapter V, Part 585 as amended) or any of the provisions of the Regulations of
the United States of America Governing Transactions in Foreign Shipping of
Merchandise (Title 31, Code of Federal Regulations, Chapter V, Part 505, as
amended).
SECTION 3. ADVANCES OF THE FACILITY/LETTERS OF CREDIT
------------------------------------------
3.1. Advances. Each of the Lenders, relying upon each of the
representations and warranties set out in Section 2, hereby agrees with the
Borrower that, subject to the terms of this Agreement, it will on the Drawdown
Dates make its portion of each Advance (pro rata in proportion to its
18
Commitment) in Dollars or a Foreign Currency, as requested by the Borrower,
available through the Administrative Agent to the Borrower in an aggregate
amount not to exceed at any one time outstanding the then available Committed
Amount, provided, however, that no further Advances shall be made one month
prior to the Termination Date. The Initial Advance shall be in an amount (in an
integral multiple of One Million Dollars ($1,000,000)) equal to or exceeding
Five Million Dollars ($5,000,000) and each subsequent Dollar Advance shall be in
an amount (in an integral multiple of One Million Dollars ($1,000,000)) equal to
or exceeding One Million Dollars ($1,000,000). Each Foreign Currency Advance
shall be in an amount (in an integral multiple of one hundred (100) units of
account of the relevant currency) equal to or exceeding the then Dollar
Equivalent of One Million Dollars (US$1,000,000). Each Advance may only be
denominated in a single currency. Each Advance shall be repaid in full, as more
fully set forth hereinafter, not later than the Termination Date. Not more than
fifteen (15) Advances may be made in each consecutive twelve (12) month period.
Within the limits of this Section 3.1 and upon the conditions herein provided,
the Borrower may from time to time borrow pursuant to this Section 3.1, repay
Advances pursuant to Section 5 and reborrow pursuant to this Section 3.1. The
obligation of each Lender to advance its respective portion of any Advance shall
be several and not joint with the other Lenders. With respect to each Advance,
no Lender shall be obliged to advance to the Borrower (a) with respect to each
Advance, an amount in excess of such Lender's pro rata share of such Advance
and, (b) in the aggregate Credit Facility Balance outstanding at any time, an
amount in excess of its Commitment.
3.2. Use of Proceeds. The proceeds of the Advances shall be utilized
for general corporate purposes of the Borrower.
3.3. Drawdown Notice. The Borrower shall not less than three (3)
Banking Days before each Drawdown Date (other than a Drawdown Date occurring by
reason of a drawing under any Letter of Credit) serve a notice (a "Drawdown
Notice") on the Administrative Agent (which shall promptly furnish a copy to
each Lender), substantially in the form set out in Exhibit 3, which notice shall
(a) be in writing addressed to the Administrative Agent, (b) be effective on
receipt by the Administrative Agent, provided it is received before 11 a.m. New
York time (otherwise it shall be deemed to have been received on the next
Banking Day), (c) specify the currency, amount and purpose of the Advance to be
drawn, (d) specify the Banking Day on which the Advance is to be drawn and the
initial Interest Period, (e) specify the disbursement instructions and (f) be
irrevocable.
3.4. Drawdown Notice a Warranty. Each Drawdown Notice shall be deemed
to constitute a warranty by the Borrower (a) that the representations and
warranties stated in Section 2 (updated mutatis mutandis) are true and correct
on the date of such Drawdown Notice and will be true and correct on the Drawdown
Date as if made on such date, (b) that after giving effect to the borrowing made
pursuant to such Drawdown Notice, the Credit Facility Balance shall not exceed
the Committed Amount then available hereunder pursuant to Section 3.1 and (c)
that no Event of Default nor any event which, with the giving of notice or lapse
of time, or both, would constitute an Event of Default has occurred and is
continuing.
19
3.5. Notation of Advance on Note. Each Advance, or pro rata portion
thereof, made by a Lender to the Borrower may be evidenced by a notation of the
same made by such Lender on the grid attached to such Lender's Note, which
notation, absent manifest error, shall be prima facie evidence of the amount of
the relevant Advance.
3.6. Foreign Currency Advances. The Dollar Equivalent (calculated at
the applicable Exchange Rate from time to time prevailing) of the aggregate
principal amount of Foreign Currency Advances at any time outstanding under the
Credit Facility (together with the Dollar Equivalent of the aggregate Stated
Amount of Letters of Credit then outstanding and denominated in currencies other
than Dollars) shall not exceed fifty percent (50%) of the then available
Committed Amount. To the extent provisions of this Agreement require the
calculation of amounts advanced or available under the Credit Facility in
Dollars, any such amounts (if denominated in a currency other than Dollars)
which are subject to such calculation shall, for purposes of such calculations,
be notionally converted to Dollars at the relevant Exchange Rate then
prevailing. The calculation of such currency conversion shall be certified by
the Administrative Agent or the Letter of Credit Issuer, as the case may be,
which certification, absent any manifest error, shall be conclusive and binding
on the Borrower and the Lenders. If exchange rate fluctuations (a) cause the
Credit Facility Balance to exceed the Committed Amount at any time or (b) cause
the Foreign Currency Advances (together with the Dollar Equivalent of the
aggregate Stated Amount of Letters of Credit then outstanding and denominated in
currencies other than Dollars) to exceed fifty percent (50%) of the then
available Committed Amount at any time, then the Borrower shall, within seven
(7) days of written demand of the Administrative Agent, repay Advances in an
amount equal to the excess of the Credit Facility Balance over the Committed
Amount or repay Foreign Currency Advances (together with the Dollar Equivalent
of the aggregate Stated Amount of Letters of Credit then outstanding and
denominated in currencies other than Dollars) in an amount sufficient to reduce
Foreign Currency Advances to not more than fifty percent (50%) of the then
available Committed Amount, as the case may be.
3.7. Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that a Letter of Credit
Issuer at any time and from time to time prior to the Banking Day immediately
preceding the Termination Date issue, for the account of the Borrower and in
support of L/C Supportable Obligations, and subject to and upon the terms and
conditions herein set forth, such Letter of Credit Issuer agrees to issue from
time to time, irrevocable standby letters of credit denominated in Dollars (or
in such other currency as the Borrower and the Letter of Credit Issuer may
agree) and in such form as may be approved by the Letter of Credit Issuer
(singly, a "Letter of Credit" and collectively, the "Letters of Credit").
Schedule F contains a description of all letters of credit issued for the
account of the Borrower pursuant to the Existing Credit Agreement which will
remain outstanding on the date hereof. Each such letter of credit, including any
extension thereof (each an "Existing Letter of Credit"), shall constitute a
"Letter of Credit", for all purposes of this Agreement and shall be deemed
issued for the purposes of Sections 3.10 and 14.2 on the date hereof.
(b) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued, the Stated Amount of which, (x) when added to the Letter of
Credit Outstandings at such time, would exceed fifty percent (50%) of the
20
Committed Amount at such time or (y) when added to the Letter of Credit
Outstandings at such time plus the aggregate principal amount of all Advances
made by Lenders then outstanding would exceed the Committed Amount at such time;
and (ii) each Letter of Credit shall have an expiry date occurring not later
than the earlier of (x) the date which occurs thirty (30) months after the date
of issuance thereof and (y) the Banking Day immediately preceding the
Termination Date; provided that the Borrower may request, and the Letter of
Credit Issuer, the Administrative Agent and the Lenders may consent, in their
respective absolute discretion, to extend the expiry dates of certain Letters of
Credit beyond the Termination Date (singly, an "Extended Letter of Credit" and
collectively, the "Extended Letters of Credit"). Should one or more Lenders not
consent to the requested extension, the Borrower may request and the Letter of
Credit Issuer, the Administrative Agent and the remaining Lenders may agree to
provide such Extended Letter of Credit. For purposes of determining compliance
with limitations set forth in this Agreement, the Dollar Equivalent of the
Stated Amount of any Letter Credit denominated in a currency other than Dollars
shall be converted at the Issuer's Exchange Rate in effect at the time of
determination.
3.8. Request for Issuance of Letter of Credit. (a) Whenever the
Borrower wishes that a Letter of Credit be issued, the Borrower shall give the
applicable Letter of Credit Issuer written notice (a "Letter of Credit
Request"), copied to the Administrative Agent, substantially in the form of
Exhibit 4 prior to 11:00 a.m., New York time, at least three (3) Banking Days
prior to the proposed date of issuance (which shall be a Banking Day), which
Letter of Credit Request shall include any documents that the Letter of Credit
Issuer may reasonably require in connection therewith. The Letter of Credit
Request shall be irrevocable. The Letter of Credit Issuer shall promptly notify
each Lender of each Letter of Credit Request.
(b) The Letter of Credit Issuer shall, on the date of each
issuance of a Letter of Credit by it, give each Lender and the Borrower written
notice of the issuance of such Letter of Credit.
3.9. Letter of Credit Payments Deemed Advances. (a) The Borrower hereby
agrees that any payment or disbursement made by a Letter of Credit Issuer under
any Letter of Credit shall be deemed an Advance in Dollars (amounts paid or
disbursed in currencies other than Dollars or Foreign Currencies shall be
converted to Dollars at the Exchange Rate as of the date of payment or
disbursement) or the Foreign Currency in which such Letter of Credit was
denominated under this Agreement and shall bear interest for each day from the
date of such payment or disbursement at the Base Rate as in effect on each day
until the date falling three (3) Banking Days after receipt by the
Administrative Agent of an Interest Notice with respect to such Advance and
shall thereafter bear interest at the Applicable Rate. The Letter of Credit
Issuer shall give prompt notice to the Borrower and the Lenders of each payment
or disbursement and the amount thereof in, as applicable, (x) Dollars, (y) the
relevant Foreign Currency or (z), if such payment or disbursement was in a
currency other than Dollars or a Foreign Currency, the Dollar Equivalent of such
payment or disbursement (together with the sum thereof in the relevant foreign
currency and the applicable Exchange Rate) under a Letter of Credit.
21
(b) (i) The Letter of Credit Issuer shall not concern
itself with the regularity or propriety of any demand made under any Letter of
Credit beyond the face thereof, provided that such demand strictly complies with
the terms of such Letter of Credit and (subject to the above proviso) it shall
not be a defense to a claim of the Letter of Credit Issuer that the Letter of
Credit Issuer could have resisted the payment in respect of which such claim is
made.
(ii) The Borrower's obligation to repay any Advance
deemed made under this Section 3.9 (including, in each case, interest thereon)
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the Letter of Credit Issuer or any Lender,
including, without limitation, any defense based upon the failure of any drawing
under a Letter of Credit to conform to the terms of the Letter of Credit (other
than the failure of the Letter of Credit Issuer to determine that any documents
required to be delivered under such Letter of Credit have been delivered and
that they comply on their face with the requirements of such Letter of Credit)
or any non-application or misapplication by the beneficiary of the proceeds of
such drawing; provided, however, that the Borrower shall not be obligated to
reimburse the Letter of Credit Issuer for any wrongful payment made by the
Letter of Credit Issuer under a Letter of Credit as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Letter of Credit Issuer.
3.10. Letter of Credit Participation. (a) Immediately upon the issuance
by a Letter of Credit Issuer of such Letter of Credit, the Letter of Credit
Issuer shall be deemed to have sold and transferred to each Lender, and each
Lender (each a "Letter of Credit Participant") shall be deemed irrevocably and
unconditionally to have purchased and received from the Letter of Credit Issuer,
without recourse or warranty, an undivided interest and participation, to the
extent of such Lender's Commitment, in such Letter of Credit, each substitute
letter of credit, each drawing made thereunder and the obligation of the
Borrower under this Agreement with respect thereto (although the Letter of
Credit Fee shall be payable directly to the Administrative Agent for the account
of the Letter of Credit Participants as provided in Section 14.2) and any
security therefor or guaranty pertaining thereto; provided, however, that for
purposes of an Extended Letter of Credit, a Lender that did not consent to an
Extended Letter of Credit shall not be deemed to be a Letter of Credit
Participant in such Extended Letter of Credit.
(b) In determining whether to pay under any Letter of Credit,
the Letter of Credit Issuer shall not have any obligation relative to the
respective Letter of Credit Participants other than to determine that any
documents required to be delivered under such Letter of Credit have been
delivered and that they comply on their face with the requirements of such
Letter of Credit. Any action taken or omitted to be taken by the Letter of
Credit Issuer under or in connection with any Letter of Credit, if taken or
omitted in the absence of gross negligence or willful misconduct, shall not
create for the Letter of Credit Issuer any resulting liability to the respective
Letter of Credit Participants.
(c) In the event that any Letter of Credit Issuer makes any
payment under any Letter of Credit issued thereby, upon receipt of notice
thereof as provided in Section 3.9(a), each Letter of Credit Participant shall
promptly and unconditionally pay to the Letter of Credit Issuer, the amount of
22
such Letter of Credit Participant's Percentage of such payment in Dollars (or if
the Letter of Credit was (x), issued in a Foreign Currency, the currency of
issuance or (y) issued in a currency other than Dollars or the Foreign
Currencies, in Dollars, based upon the Dollar Equivalent of the deemed advance
as calculated pursuant to Section 3.9(a)) and in same day funds; provided,
however, that no Letter of Credit Participant shall be obligated to pay to the
Letter of Credit Issuer its percentage of such payment for any wrongful payment
made by the Letter of Credit Issuer under a Letter of Credit as a result of acts
or omissions constituting willful misconduct or gross negligence on the part of
the Letter of Credit Issuer. If the Letter of Credit Issuer so notifies any
Letter of Credit Participant required to fund a Drawing under a Letter of Credit
prior to 11:00 a.m., New York time, on any Banking Day, such Letter of Credit
Participant shall make available to the Letter of Credit Issuer such Letter of
Credit Participant's Percentage of the amount of such payment on such Banking
Day in same day funds. If and to the extent such Letter of Credit Participant
shall not have so made its percentage of the amount of such drawing available to
the Letter of Credit Issuer, such Letter of Credit Participant agrees to pay to
the Letter of Credit Issuer, forthwith on demand such amount, together with
interest thereon, for each day from such date until the date such amount is paid
to the Letter of Credit Issuer at the overnight Federal Funds Effective Rate.
The failure of any Letter of Credit Participant to make available to the Letter
of Credit Issuer its percentage of any drawing under any Letter of Credit shall
not relieve any other Letter of Credit Participant of its obligation hereunder
to make available to the Letter of Credit Issuer its percentage of any payment
under any Letter of Credit on the date required, as specified above, but no
Letter of Credit Participant shall be responsible for the failure of any other
Letter of Credit Participant to make available to the Letter of Credit Issuer
such other Letter of Credit Participant's Percentage of any such payment.
(d) The obligation of the respective Letter of Credit
Participants to make payments to the applicable Letter of Credit Issuer with
respect to Letters of Credit shall be irrevocable and not subject to
counterclaim, set-off or other defense or any other qualification or exception
whatsoever (provided that no Letter of Credit Participant shall be required to
make payments resulting from the Letter of Credit Issuer's gross negligence or
willful misconduct) and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement.
(ii) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or
any person for whom any such transferee may be acting), any Agent or
Lender or other person, whether in connection with this Agreement, any
Letter of Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
and the beneficiary named in any such Letter of Credit);
23
(iii) any draft, certificate or other document presented under
a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any
respect; or
(iv) the occurrence of any Event of Default.
SECTION 4. CONDITIONS
----------
4.1. Conditions Precedent to Drawdown of the Initial Advance under the
Credit Facility. The obligation of the Lenders to make the initial Advance
available to the Borrower under this Agreement shall be expressly subject to the
following conditions precedent:
(a) the Administrative Agent shall have received the following
documents in form and substance satisfactory to the Administrative Agent and its
legal advisers:
(i) copies, certified as true and complete by an officer of
the Borrower of the resolutions of its board of directors evidencing
approval of this transaction and authorizing an appropriate officer or
officers or attorney-in-fact or attorneys-in-fact to execute this
Agreement and the Notes and any other documents required in connection
herewith on its behalf;
(ii) copies, certified as true and complete by an officer of
the Borrower or other applicable party, of all documents evidencing any
other necessary actions (including actions by such parties thereto
other than the Borrower as may be required by the Lenders), approvals
or consents with respect to this Agreement and the Notes and the
transactions contemplated hereby and thereby;
(iii) copies, certified as true and complete by an officer of
the Borrower of its certificate of incorporation and by-laws;
(iv) certificate of the Secretary or Assistant Secretary of
the Borrower certifying as to (x) the incumbency of the signatories of
the Borrower, (y) the present directors of the Borrower and (z) the
authorized, issued and outstanding capital stock of each of the Vessel
Owning/Operating Subsidiaries legally and beneficially owned by the
Borrower; and
(v) good standing certificate of the Borrower;
(b) the Borrower shall have duly executed and delivered:
(i) this Agreement,
(ii) the Notes, and
(iii) the fee letter referred to in Section 14.4;
24
(c) the Operating Accounts referred to in Section 8.1 shall
have been duly established with the Administrative Agent;
(d) the Administrative Agent shall have received a certificate
of the chief financial officer of the Borrower confirming the representations
and warranties set forth in Section 2.1(l) and containing conclusions as to the
solvency of the Borrower (on a consolidated basis);
(e) the Agents and the Lenders shall have received payment in
full of all fees and expenses due to them on the date hereof including, without
limitation, all fees and expenses due under Section 14;
(f) the Administrative Agent shall be satisfied that neither
the Borrower nor any of the Subsidiaries is subject to any Environmental Claim
which could give rise to a Material Adverse Change;
(g) the Administrative Agent shall have received true and
complete copies of (i) the 10K report of the Borrower for the year ending
December 31, 2000 filed with the United States Securities and Exchange
Commission and (ii) all 10Q and 8K reports filed by the Borrower with the United
States Securities and Exchange Commission since December 31, 2000;
(h) no Material Adverse Change having occurred since September
30, 2001;
(i) the Administrative Agent having received such evidence as
it may require that the Borrower and each of the Subsidiaries have insured their
respective properties and other assets with underwriters and agents acceptable
to the Administrative Agent in the manner required under Section 2.1(k);
(j) the Administrative Agent shall have received opinions from
Seward & Kissel LLP, counsel to the Lenders and the Agents, Alice Gran, Esq.,
in-house counsel to the Borrower and Weil, Gotshal & Manges, special counsel to
the Borrower, in such form as the Administrative Agent may agree, as well as
such other legal opinions as the Lenders shall have required as to all or any
matters under the laws of the United States of America, the State of New York
and the State of Delaware covering the representations and conditions which are
the subjects of Sections 2 and 4 or in such other form as the Administrative
Agent may agree; and
(k) the Administrative Agent shall have received evidence of
the termination, cancellation and prepayment of all amounts outstanding under
the Existing Credit Facility.
4.2. Further Conditions Precedent. The obligation of the Lenders to
make any Advance (other than an Advance which occurs by reason of a drawing
under any Letter of Credit) available to the Borrower shall be expressly and
separately from the foregoing conditional upon, on the relevant Drawdown Date:
(a) the Administrative Agent having received a Drawdown Notice
in accordance with the terms of Section 3.3;
25
(b) the representations stated in Section 2 (updated mutatis
mutandis) being true and correct as if made on that date;
(c) no Event of Default having occurred and being continuing
and no event having occurred and being continuing which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default; and
(d) the Administrative Agent being satisfied that no Event of
Default will arise following the drawdown of the Advance in question by reason
of the drawdown of the Advance and that no event or state of affairs exists
which constitutes, in the reasonable opinion of the Administrative Agent, a
material risk that it will be unlawful or impossible for the Borrower to make
any payment or perform any material obligation as required under the terms of
this Agreement and the Notes.
4.3. Break Funding Costs. In the event that, on any date specified for
the making of an Advance in any Drawdown Notice, the Lenders shall not be
obliged under this Agreement to make such Advance available under this
Agreement, the Borrower shall indemnify and hold the Lenders or any of them,
fully harmless against any losses which they may sustain as a result of
borrowing or agreeing to borrow funds to meet the drawdown requirement in
respect thereof and the certificate of such Lender, absent manifest error, shall
be conclusive and binding on the Borrower as to the extent of any such losses.
4.4. Satisfaction after Drawdown. Without prejudice to any of the other
terms and conditions of this Agreement, in the event the Lenders, in their sole
discretion, make an Advance prior to the satisfaction of all or any of the
conditions referred to elsewhere in Sections 4.1 and 4.2, the Borrower hereby
covenants and undertakes to satisfy or procure the satisfaction of such
condition or conditions within fourteen (14) days after the relevant Drawdown
Date (or such longer period as the Lenders, in their sole discretion, may
agree).
SECTION 5. REPAYMENT, PREPAYMENT AND REDUCTION
-----------------------------------
5.1. Repayment. The Borrower shall repay all outstanding Advances
(subject to reductions and prepayments as hereinafter set forth) on the
Termination Date and shall also repay outstanding Advances, to the extent
required to comply with (a) Section 3.6, (b) a reduction of the Credit Facility
pursuant to Section 5.3 or (c) as may be otherwise provided in this Agreement.
Each Advance (together with interest accrued thereon and any costs or other sums
associated therewith payable by the Borrower hereunder) shall be repaid in the
currency in which such Advance was drawn down or, in the case of such costs or
sums, the currency in which such cost or sum was incurred or booked by the Agent
and the Lenders.
5.2. Prepayment. The Borrower may prepay, upon three (3) days' written
notice, any outstanding Advance or any portion thereof, without penalty,
provided that such prepayment is made on the last day of the Interest Period
covering such Advance. Each prepayment shall be (a) in a minimum amount of: (x)
if made in Dollars, One Million Dollars ($1,000,000) or (y) if made in a Foreign
Currency, the then Dollar Equivalent (rounded upward to the nearest multiple of
one hundred (100) units of account of the relevant currency) of One Million
Dollars ($1,000,000), (b) in an amount equal to an integral multiple of such
26
minimum amount or (c) in the full amount of the Advance. On the date of
prepayment all accrued interest to the date of such prepayment shall be paid in
full with respect to Advances or portion thereof being prepaid, together with
any and all actual costs or expenses incurred by any Agent or Lender in
connection with any breaking of funding ( as certified by the relevant Lenders,
which certification, absent any manifest error, shall be conclusive and binding
on the Borrower).
5.3. Permanent Reduction of the Committed Amount of the Credit
Facility. (i) The Borrower shall have the right, at any time and from time to
time, to request, without penalty, a permanent partial or whole reduction of the
Committed Amount, provided that (a) the Administrative Agent receives three (3)
Banking Days' prior written notice of such request and (b) if the then
outstanding Credit Facility Balance exceeds the Committed Amount as so reduced,
such requested reduction occurs on the last day of the applicable Interest
Period(s) for Advances (or portions thereof) outstanding under this Agreement at
least equal to the excess of the Credit Facility Balance over the reduced
Committed Amount. Each such partial permanent reduction shall be equal to or
shall exceed One Million Dollars ($1,000,000) and shall be an integral multiple
of One Million Dollars ($1,000,000).
5.4. Reduction of Commitment. Simultaneously with each reduction of the
Committed Amount (whether pursuant to Section 5.3 or otherwise), each Lender's
Commitment in respect of the Credit Facility shall be reduced pro rata in
proportion to their respective interests in the Credit Facility.
SECTION 6. INTEREST AND RATE
-----------------
6.1. Applicable Rate. Except as otherwise provided in Section 3.9, each
Advance shall bear interest at a rate per annum (the "Applicable Rate") equal to
the aggregate of (a) LIBOR for the applicable Interest Period, plus (b) the then
applicable margin (the "Applicable Margin") determined in accordance with
Section 6.2 plus (c) any applicable margin or eurocurrency liability reserve
requirement imposed on any Lender as a result of the operation of Regulation D
(Title 12, Code of Federal Regulations, Chapter II, Part 204), or any successor
thereto, or similar reserve requirement imposed upon a Lender by the
jurisdiction of incorporation of such Lender or the domicile of its Lending
Office, as in effect from time to time constituting a sum payable by the
Borrower under Section 12.2. Upon the occurrence of an Event of Default or an
event or condition which, with the giving of notice or passage of time or both,
would constitute an Event of Default, the Credit Facility Balance or any other
amount payable hereunder or under the Notes shall bear interest thereafter at a
rate (the "Default Rate") of two hundred basis points (200 bp) over the
Applicable Rate then in effect.
6.2. The Applicable Margin. The Applicable Margin, as determined from
time to time by the Administrative Agent as provided herein, shall vary based
upon (a) the Borrower's credit rating as determined by S&P and Moody's, or (b)
if the Borrower is no longer rated, the ratio of the Borrower's consolidated
Funded Debt to the consolidated EBITDA for the Borrower, as follows:
27
- ----------------------------------------------- --------------------------------------------- -------------------------------------
Applicable Margin Credit Rating Funded Debt/EBITDA
- ----------------------------------------------- --------------------------------------------- -------------------------------------
65 bp A-/A3 Less than or equal to 0.75
- ----------------------------------------------- --------------------------------------------- -------------------------------------
75 bp BBB+/Baa1 Greater than 0.75, but
less than or equal to 1.50
- ----------------------------------------------- --------------------------------------------- -------------------------------------
85 bp BBB/Baa2 Greater than 1.50, but
less than or equal to 2.25
- ----------------------------------------------- --------------------------------------------- -------------------------------------
100 bp BBB-/Baa3 Greater than 2.25, but
less than or equal to 3.0
- ----------------------------------------------- --------------------------------------------- -------------------------------------
125 bp BB+/Ba1 Greater than 3.0, but
less than or equal to 4.0
- ----------------------------------------------- --------------------------------------------- -------------------------------------
150 bp Less than BB+/Ba1 Greater than 4.0
- ----------------------------------------------- --------------------------------------------- -------------------------------------
For purposes of determining the Applicable Margin, in the case of a split rating
in the respective credit ratings of the Borrower by Moody's and S&P the higher
of the two ratings shall apply. In the event of a split rating of more than one
level, the rating which is one level above the lower rating shall apply. The
Applicable Margin shall be determined by the Administrative Agent quarterly
(based upon the latest 10Q or 10K report and Compliance Certificate delivered by
the Borrower to the Administrative Agent from time to time pursuant to this
Agreement). The newly determined Applicable Margin shall be effective on the
last day of the month following the month during which such report and
certificate were delivered to the Administrative Agent.
6.3. LIBOR; Interest Periods. With respect to each Advance, the
Borrower may select Interest Periods of one (1), two (2), three (3), six (6),
nine (9) or twelve (12) months (or such longer period as the Lenders may, in
their sole discretion, agree), provided however, that in no event may the
Borrower select an Interest Period of one (1) month more than six (6) times in
any calendar year. The Borrower shall give an Interest Notice to the
Administrative Agent (which shall promptly forward same to the Lenders) at least
three (3) Banking Days prior to the end of any then existing Interest Period,
which Interest Notice shall set forth the Interest Period selected. If at the
end of any then existing Interest Period, the Borrower fails to give an Interest
Notice as provided herein, the following Interest Period shall have a duration
of three (3) months. LIBOR and the Applicable Rate shall be determined by the
Administrative Agent two (2) Banking Days prior to the first day of the relevant
Interest Period and shall be promptly notified in writing to the Borrower. The
Borrower's right to select an Interest Period shall be further subject to the
restriction that no selection of an Interest Period shall be effective unless
the Lenders are satisfied that the necessary funds will be available to the
Lenders for such period and the Administrative Agent is satisfied that no Event
of Default or event which with notice or the passage of time, or both, would
constitute an Event of Default shall have occurred. No Interest Period may
extend beyond the Termination Date.
6.4. Interest Payments. Interest on each Advance or portion thereof,
shall be payable quarterly in arrears and on the last day of each Interest
Period.
28
6.5. Interest Due Only on Banking Day. If interest would, under Section
6.4, be payable on a day which is not a Banking Day, it shall then be payable on
the next following Banking Day, unless such next following Banking Day falls in
the following month in which case it shall be payable on the Banking Day
immediately preceding the day on which such interest would otherwise be payable.
6.6. Calculation of Interest. All interest shall accrue from day to day
and be calculated on the actual number of days elapsed and on the basis of a
three hundred sixty (360) day year.
SECTION 7. PAYMENTS
--------
7.1. Place of Payments, No Set Off. All payments to be made hereunder
by the Borrower shall be made on the due dates of such payments to the
Administrative Agent at its office located at 200 Park Avenue, New York, New
York or to such other branch of the Administrative Agent as the Administrative
Agent may direct, without set-off or counterclaim and free from, clear of and
without deduction for, any Taxes, provided, however, that if the Borrower shall
at any time be compelled by law to withhold or deduct any Taxes from any amounts
payable to the Agents and the Lenders hereunder, then, subject to Section 7.2,
the Borrower shall pay such additional amounts in Dollars as may be necessary in
order that the net amounts received after withholding or deduction shall equal
the amounts which would have been received if such withholding or deduction were
not required and, in the event any withholding or deduction is made, whether for
Taxes or otherwise, the Borrower shall promptly send to the Administrative Agent
such documentary evidence with respect to such withholding or deduction as may
be required from time to time by the Agents and the Lenders or any thereof.
7.2. Proof of no Withholding. Each Lender and any transferee, assignee
or participation holder (a "Transferee") that is not incorporated under the laws
of the United States of America or a State thereof agrees that, on the initial
Drawdown Date and prior to the first date on which any payment is due to such
Lender or Transferee hereunder, the Lender or Transferee shall deliver to the
Borrower a duly completed United States Internal Revenue Service Form W-8 BEN or
Form W-8 ECI (or applicable successor form) indicating that such Lender is
exempt from United States withholding tax. Each Lender or Transferee that is
incorporated under the laws of the United States or a State thereof shall, on
the initial Drawdown Date and prior to the first date on which any payment is
due to such Lender or Transferee hereunder, deliver to the Borrower a United
States Internal Revenue Service Form W-9 (or applicable successor form). A
Lender or Transferee subject to the provisions of this Section 7.2 further
undertakes to deliver to the Borrower another copy of any of the foregoing forms
on or before the date that any such form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent form
previously delivered thereby to the Borrower, unless in any such case an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender or Transferee from duly completing and delivering any such form with
respect to it, and such Lender or Transferee has advised the Borrower that it is
no longer exempt from United States withholding tax or exempt from United States
backup withholding tax, as the case may be. The Borrower shall not be required
to pay any additional amounts described in Section 7.1 hereof to the extent that
29
the underlying Taxes arise as a result of (i) a Lender's or a Transferee's
failure to provide any applicable IRS form referred to in this Section 7.2
within sixty (60) days after the Borrower has made a written request for such
form, or (ii) the IRS determining upon audit of the Borrower that such IRS form
submitted by the Lender or a Transferee is incorrect or invalid.
7.3. Federal Income Tax Credits. In connection with the foregoing, each
Lender may consult with its legal advisers, all fees and expenses of which shall
be for the account of the Borrower. If a Lender obtains the benefit of a credit
against its liability for federal income taxes imposed by the United States of
America for all or part of the Taxes as to which the Borrower has paid
additional amounts as aforesaid then such Lender shall reimburse the Borrower
for the amount of the credit so obtained.
SECTION 8. ACCOUNTS
--------
8.1. The Operating Accounts. Except as otherwise agreed by the
Administrative Agent, the Borrower and the Vessel Owning/Operating Subsidiaries
shall maintain with the Administrative Agent at the office of the Administrative
Agent located at 200 Park Avenue, New York, New York or at other branches of the
Administrative Agent the principal operating accounts of the Borrower and the
Vessel Owning/Operating Subsidiaries if the Administrative Agent has full
commercial banking capability as of the date of this Agreement in the geographic
areas in which the Borrower or any of the Vessel Owning/Operating Subsidiaries
operate. The Lenders expressly acknowledge that such operating accounts are not
pledged or otherwise hypothecated to the Lenders in connection with the Credit
Facility. The Lenders further acknowledge that any moneys deposited in such
accounts may be utilized for any business purpose whatsoever consistent with the
terms of this Agreement. Amounts accumulated in each Operating Account shall
bear interest for the account of the party maintaining such account in
accordance with the Administrative Agent's normal practice.
SECTION 9. EVENTS OF DEFAULT
-----------------
9.1. In the event that any of the following events shall occur and be
continuing:
(a) Principal and Interest Payments. Any payment of principal
due on the Termination Date or otherwise due hereunder or under the Notes or
under any of them or any Interest on any of the Advances, is not paid on the due
date; or
(b) Other Payments. Any amount (other than principal and
interest) becoming payable under this Agreement or under the Notes or under any
of them, is not paid on the due date or date of demand (as the case may be), and
such default continues unremedied for a period of three (3) Banking Days; or
(c) Representations, etc. Any representation, warranty or
other statement made by the Borrower in this Agreement or in any other
instrument, document or other agreement delivered in connection herewith or
therewith proves to have been untrue or misleading in any material respect as at
the date as of which made or affirmed; or
30
(d) Impossibility, Illegality. It becomes impossible or
unlawful for the Borrower to fulfill any of the covenants and obligations
contained herein or in the Notes or for any of the Lenders to exercise any of
the rights vested in them hereunder or under the Notes and such impossibility or
illegality in the reasonable opinion of the Majority Lenders will give rise to a
Material Adverse Change; or
(e) Citizenship. The Borrower or any of the Subsidiaries
owning Vessels registered under the laws and flag of the United States of
America breaches Section 10.1(a)(vi) and, provided such default does not render
any such Vessel liable to forfeiture, such default is not cured within thirty
(30) days of its occurrence; or
(f) Covenants. (I) The Borrower defaults in the performance of
Sections 10.1 (a)(iii), (v) or (xxi) or Sections 10.1(b)(i), (iii), (iv), (v),
(vi), (xi) or (xii) or (II) the Borrower defaults in the performance of Sections
10.1(a)(xv), (xvi), (xvii) or (xviii) and such default is not cured within
twenty (20) days; or
(g) Other Covenants. The Borrower defaults in the performance
of any other term, covenant or agreement contained in this Agreement, in the
Notes or in any other instrument, document or other agreement delivered in
connection herewith or therewith, or there occurs any other event which
constitutes a default under this Agreement or under the Notes, in each case
other than an Event of Default referred to elsewhere in this Section 9.1 and
such default continues unremedied for a period of thirty (30) days following
notice thereof by the Administrative Agent; or
(h) Indebtedness. The Borrower or any of the Subsidiaries
shall (a) default in the payment when due (subject to any applicable grace
period), whether by acceleration or otherwise, of any Funded Debt in excess of
Ten Million Dollars ($10,000,000), (b) default in the observance or performance
of any agreement or condition relating to any such Funded Debt or any other
event shall occur or condition exist, the effect of which default or other event
or condition would entitle the holder or holders of such Funded Debt to declare
any such Funded Debt to become due prior to its stated maturity or (c) default
in the observance or performance of any agreement or condition relating to
Indebtedness (other than Funded Debt) exceeding, in the aggregate, Ten Million
Dollars ($10,000,000) and in connection with such default or in connection with
any non-payment default in respect of such Indebtedness referred to in this
sub-clause (c), any party becomes entitled to (x) enforce the security for any
such Indebtedness and such party shall take steps to enforce the same, or (y)
any party becomes entitled to accelerate and accelerates such Indebtedness,
unless such default, acceleration or enforcement is being contested in good
faith and by appropriate proceedings or other acts and the Borrower and/or such
Subsidiary or Subsidiaries, as the case may be, shall set aside on its books
adequate reserves with respect thereto; or
(i) Bankruptcy. The Borrower or any of the Subsidiaries
commences any proceedings relating to any portion of its property under any
reorganization, arrangement or readjustment of debt, dissolution, winding up,
adjustment, composition, bankruptcy or liquidation law or statute of any
jurisdiction (other than with respect to a corporate re-organization unrelated
31
to a company's insolvency), whether now or hereafter in effect ("Proceeding"),
or there is commenced against any thereof any Proceeding which Proceeding
remains undismissed or unstayed for a period of thirty (30) days; or any
receiver, trustee, liquidator or sequestrator of, or for, any thereof or any
substantial portion of the property of any thereof is appointed and is not
discharged within a period of thirty (30) days; or any thereof by any act
indicates consent to or approval of or acquiescence in any Proceeding or to the
appointment of any receiver, trustee, liquidator or sequestrator of, or for,
itself or any substantial portion of its property; or
(j) Judgments. Any judgment or order is made the effect
whereof would be to render ineffective or invalid this Agreement, the Notes or
any thereof; or
(k) Inability to Pay Debts. The Borrower or any of the
Subsidiaries is unable to pay or admits its inability to pay its debts as they
fall due or if a moratorium shall be declared in respect of any Funded Debt of
the Borrower or any of the Subsidiaries; or
(l) Change of Control of the Borrower. The Borrower shall have
suffered a Change of Control;
then the Lenders' obligation to make the Credit Facility available shall cease
and the Administrative Agent, on behalf of the Lenders, may (with the consent of
the Majority Lenders) and shall (upon the Majority Lenders' instruction) by
notice to the Borrower, (i) declare the entire balance of the then outstanding
Advances, accrued interest and any other sums payable by the Borrower hereunder
and under the Notes due and payable whereupon the same shall forthwith be due
and payable without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived (provided that upon the happening of an event
specified in subsections (i) or (k) of this Section 9.1, the Notes shall be
immediately due and payable without declaration or other notice to the
Borrower), (ii) terminate any Letter of Credit which may be terminated in
accordance with its terms and (iii) direct the Borrower to pay (and the Borrower
hereby agrees upon receipt of such notice, or upon the occurrence of an Event of
Default specified in subsection (i) or (k) of this Section 9.1, it will pay) to
the Administrative Agent at the office set forth in Section 7.1 such additional
amounts, to be held as security in respect of Letters of Credit then outstanding
(if any), equal to the aggregate of the then Letter of Credit Outstandings, such
amounts to be repaid to the Borrower to the extent not utilized to cover Letter
of Credit drawings. In such event, the Administrative Agent and the Lenders may
proceed to protect and enforce their rights by action at law, suit in equity or
in admiralty or other appropriate proceeding, whether for specific performance
of any covenant contained in this Agreement or in the Notes or in aid of the
exercise of any power granted herein or therein, or the Administrative Agent and
the Lenders may proceed to enforce the payment of the Notes when due or to
enforce any other legal or equitable right of the Lenders, or proceed to take
any action authorized or permitted by applicable laws for the collection of all
sums due, or so declared due, on the Notes, including, without limitation, the
right to appropriate and hold or apply (directly, by way of set-off or
otherwise) to the payment of the obligations of the Borrower hereunder and/or
under the Notes (whether or not then due) all moneys and other amounts of the
Borrower , then or thereafter in possession of the Lenders, the balance of any
deposit account (demand or time, matured or unmatured) of the Borrower then or
32
thereafter with the Lenders and every other claim of the Borrower then or
thereafter against the Lenders.
9.2. Indemnification. The Borrower agrees to, and shall, indemnify and
hold each of the Agents and the Lenders harmless against any loss or reasonable
costs or expenses (including legal fees and expenses) which any of the Agents
and the Lenders sustains or incurs as a consequence of any default in payment of
the principal amount of any Advance or interest accrued thereon or any other
amount payable hereunder or under the Notes including, but not limited to, all
actual losses incurred in liquidating or re-employing fixed deposits made by
third parties or funds acquired to effect or maintain the Credit Facility or any
part thereof and any costs incurred by any of the Agents and the Lenders in
connection with the unwinding of any interest rate swap or other hedging
arrangements. The Borrower also agrees to reimburse and indemnify the Letter of
Credit Issuer for and against any and all losses, costs or expenses of whatever
nature which may be incurred by the Letter of Credit Issuer in performing its
respective duties in any way relating to or arising out of its issuance of
Letters of Credit; provided that the Borrower shall not be liable for the
portion of such losses, costs or expenses resulting from the Letter of Credit
Issuer's gross negligence or willful misconduct. To the extent the Letter of
Credit Issuer is not so indemnified by the Borrower, the Letter of Credit
Participants will reimburse and indemnify the Letter of Credit Issuer in
proportion to its Letter of Credit Participant Percentage. An Agent or Lender `s
certification of such loss, costs and expenses absent any manifest error, shall
be conclusive and binding on the Borrower.
9.3. Application of Moneys. All moneys received by any of the Lenders
under or pursuant to this Agreement or the Notes after the happening of any
Event of Default shall be applied by the Administrative Agent in the following
manner:
(i) first, in or towards the payment or reimbursement of any
expenses or liabilities incurred by the Agents and the Lenders in
connection with the ascertainment, protection or enforcement of the
Agents and the Lenders' rights and remedies hereunder and under the
Notes,
(ii) secondly, in or towards payment of any interest owing in
respect of the Advances,
(iii) thirdly, in or towards repayment of the Advances,
(iv) fourthly, as security in respect of Letters of Credit
then outstanding, in the aggregate amount of the then Letter of Credit
Outstandings,
(v) fifthly, in or towards payment of all other sums which may
be owing to the Agents and the Lenders under this Agreement or under
the Notes, and
(vi) sixthly, the surplus (if any), as well as any moneys held
as security for Letters of Credit to the extent not utilized to cover
Letters of Credit, shall be paid to the Borrower or to whomsoever else
may be entitled thereto.
33
SECTION 10. COVENANTS
---------
10.1. The Borrower hereby covenants and undertakes with the Agents and
the Lenders that, from the date hereof and so long as (x) any commitments to
advance credit hereunder remain in effect or (y) any principal, interest or
other moneys are owing in respect of the Credit Facility or otherwise owing
under this Agreement or under the Notes:
(a) The Borrower will:
(i) Performance of Agreements. Duly perform and observe the
terms of this Agreement and the Notes;
(ii) Compliance with Covenants. Comply with each of its
covenants set forth in this Agreement;
(iii) Notice of Default. Promptly inform the Administrative
Agent of the occurrence of (a) any Event of Default or of any event
which with the giving of notice or lapse of time, or both, would
constitute an Event of Default, (b) any litigation or governmental
proceeding pending or overtly threatened against it or against any of
the Subsidiaries which could reasonably be expected to give rise to a
Material Adverse Change and (c) any other event or condition of which
it becomes aware which is reasonably likely to give rise to a Material
Adverse Change;
(iv) Obtain Consents. Without prejudice to Section 2.1 and
this Section 10.1, obtain every consent and do all other acts and
things which may from time to time be necessary or advisable for the
continued due performance of all its obligations under this Agreement
and under the Notes;
(v) Financial Statements and Other Information. Deliver to the
Administrative Agent (in sufficient number of copies to provide one to
each Lender):
(a) as soon as available but not later than ninety
(90) days after the end of each fiscal year of the Borrower, a
complete copy of the 10K report (or equivalent) of the
Borrower filed with the United States Securities and Exchange
Commission (including audited annual consolidated financial
statements of the Borrower, in each case setting forth
comparative consolidated figures for the preceding fiscal
year, together with a report thereon by an Acceptable
Accounting Firm whose opinion shall not be qualified as to the
scope of audit and as to the status of the Borrower and its
subsidiaries as a going concern), which shall be prepared by
the Borrower and certified by the chief financial officer of
the Borrower, together with a Compliance Certificate from such
chief financial officer;
(b) as soon as available but not later than sixty
(60) days after the end of each quarter of each fiscal year of
the Borrower, a copy of the 10Q report (or equivalent) of the
Borrower filed with the United States Securities and Exchange
Commission which shall be
34
prepared by the Borrower and certified by the chief financial
officer of the Borrower, together, in each instance, with a
Compliance Certificate from such chief financial officer;
(c) within ten (10) days of filing, notice of the
filing of all 8K reports (or equivalent) filed by the Borrower
with the United States Securities and Exchange Commission (or
any similar governmental authority) and deliver to the
Administrative Agent, promptly on its request therefor, copies
of such filings;
(d) promptly upon the mailing thereof to the
shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so mailed;
(e) within ten (10) days of filing, notice of the
filing of all registration statements (other than the exhibits
thereto and any registration statements on Form S-8 or its
equivalent) which the Borrower shall have filed with the
United States Securities and Exchange Commission (or similar
governmental authority) and deliver to the Administrative
Agent, promptly on its request therefor, copies of such
filings;
(f) such other statement or statements, lists of
property and accounts, budgets, forecasts, reports and
financial information (including a listing of all outstanding
indebtedness of the Borrower and the Subsidiaries for borrowed
monies) with respect to the business, operations and
management of the Borrower and the Subsidiaries and the
employment of the assets owned or operated directly or
indirectly by the Borrower or any of the Subsidiaries as the
Administrative Agent may from time to time reasonably request
in writing and any material reports received by any thereof
from their independent certified accountants; and
(g) include in each Compliance Certificate a List of
Liens, current as of the date of such Certificate;
(vi) Qualification to Own U.S. Flag Vessels. Throughout the
Credit Period, if the Borrower or a Subsidiary owns a United States
flag vessel (a) the Borrower shall remain eligible, and shall cause
such Subsidiary to continue to be eligible, to document such United
States flag vessel within the meaning of 46 App. U.S.C. ss.12102(a) and
(b) if such United States flag vessel is operated in the coastwise
trade, remain qualified, and cause such Subsidiary to continue to be
qualified, to own and operate vessels in the coastwise trade, within
the meaning of Section 2 of the Shipping Act, 1916, as amended;
(vii) Corporate Existence. Do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence, as well as the corporate existence of its Subsidiaries, and
all licenses, franchises, permits and assets necessary to the conduct
of its business and the business of its Subsidiaries;
35
(viii) Books, Records, etc. Keep, and cause each of the
Subsidiaries to keep, proper books of record and account into which
full and correct entries shall be made, in accordance with GAAP
throughout the Credit Period;
(ix) Inspection. Allow any representative or representatives
designated by the Administrative Agent, subject to applicable laws and
regulations, to visit and inspect any of its or any of the
Subsidiaries' properties, and, on request, to examine its or any of the
Subsidiaries' books of account, records, reports and other papers (and
to make copies thereof and to take extracts therefrom) and to discuss
the affairs, finances and accounts of any thereof with its officers and
executive employees all at such reasonable times and as often as the
Administrative Agent reasonably requests;
(x) Taxes. Pay and discharge, and cause each of the
Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or
property prior to the date upon which penalties attach thereof;
provided, however, that neither it nor any such Subsidiary shall be
required to pay and discharge any such tax, assessment, charge or levy
which are being contested in good faith and by appropriate proceedings
or other acts and so long as it or such Subsidiary shall set aside on
its books adequate reserves with respect thereto;
(xi) Compliance with Statutes, etc. Do, or cause to be done,
all things necessary to comply with all material laws, and the rules
and regulations thereunder, applicable to itself or to any of the
Subsidiaries including, without limitation, those laws, rules and
regulations relating to employee benefit plans and environmental
matters;
(xii) Environmental Matters. Promptly upon the occurrence of
any of the following conditions, provide to the Administrative Agent a
certificate of a chief executive officer thereof, specifying in detail
the nature of such condition and its proposed response or the response
of its Environmental Affiliate: (a) its receipt or the receipt by any
Subsidiary or any of their Environmental Affiliates of any
communication whatsoever that alleges that such person is not in
compliance with any applicable environmental law or environmental
approval, if such noncompliance could reasonably be expected to give
rise to a Material Adverse Change, (b) knowledge by it, any Subsidiary
or any of their Environmental Affiliates that there exists any
Environmental Claim pending or threatened against any such person,
which could reasonably be expected to give rise to a Material Adverse
Change, or (c) any release, emission, discharge or disposal of any
material that could form the basis of any Environmental Claim against
it, any Subsidiary or any of their Environmental Affiliates if such
Environmental Claim could reasonably be expected to give rise to a
Material Adverse Change. Upon the written request by the Administrative
Agent, it will submit to the Administrative Agent at reasonable
intervals, a report providing an update of the status of any issue or
claim identified in any notice or certificate required pursuant to this
subsection;
36
(xiii) Evidence of Insurance. Shall, and shall procure that
each of the Subsidiaries shall, maintain the insurances on its
properties as provided under Section 2.1(g)(iii) and 2.1(k), with
underwriters, brokers and protection and indemnity clubs acceptable to
the Administrative Agent, and the Borrower shall provide the
Administrative Agent with such documentation as the Administrative
Agent should reasonably require evidencing the same;
(xiv) Maintenance of Assets. Maintain and keep, and cause the
Subsidiaries to maintain and keep, all properties used or useful in the
conduct of their business in good condition, repair and working order
and supplied with all necessary equipment and will make, or cause to be
made, all necessary repairs, renewals and replacements thereof so that
the business carried on in connection therewith and every portion
thereof may be properly and advantageously conducted at all times;
(xv) Funded Debt/Total Capitalization. Procure that, on a
consolidated basis, the Funded Debt of the Borrower shall not exceed
fifty percent (50%) of its Total Capitalization;
(xvi) Secured Debt/Total Capitalization. Procure that, on a
consolidated basis, the Secured Debt of the Borrower shall not exceed
twenty percent (20%) of its Total Capitalization;
(xvii) Interest Coverage Ratio. Maintain, on a consolidated
basis, an Interest Coverage Ratio of not less than 3.0 to 1.0,
determined as at the end of each fiscal quarter
(xviii) Consolidated Net Worth. At all times maintain a
Consolidated Net Worth no less than (a) during the calendar year 2002,
an amount equal to Six Hundred Million Dollars ($600,000,000) and (b)
during each calendar year thereafter, an amount equal to the sum of Six
Hundred Million Dollars ($600,000,000) and fifty percent (50%) of the
Borrower's cumulative consolidated annual net income (to the extent
positive) , for each calendar year commencing with 2002, as reported
from time to time, in the Borrower's published financial reports;
(xix) ERISA Matters. Forthwith upon learning of the occurrence
of any material liability of the Borrower, any of the Subsidiaries or
any ERISA Affiliate pursuant to ERISA in connection with the
termination of any Plan or withdrawal or partial withdrawal from any
multiemployer plan (as defined in ERISA) or of a failure to certify the
minimum funding standard of Section 412 of the Code or Part 3 of Title
I of ERISA by any Plan for which the Borrower, any of the Subsidiaries
or any ERISA Affiliate is plan administrator (as defined in ERISA),
furnish or cause to be furnished to the Administrative Agent written
notice thereof;
(xx) Notice of Change in Credit Rating. Promptly upon the
occurrence of any of the following conditions, and in any event within
ten (10) days after the Borrower obtains knowledge thereof, inform the
Administrative Agent of any change in (a) the credit rating assigned by
37
S&P or Moody's to any debt of the Borrower or (b) the stated implied
senior debt rating assigned by S&P or Moody's with respect to the
Borrower; and
(xxi) End of Fiscal Year. Cause, for financial reporting
purposes, (a) each of its fiscal years to end on December 31 of each
year and (b) each of its fiscal quarters to end on March 31, June 30,
September 30 and December 31.
(b) The Borrower will not, without the prior written consent
of the Lenders:
(i) Liens. Create, assume or permit to exist, or permit any of
its Subsidiaries to create, assume or permit to exist, any Lien, upon
any of the properties or other assets of any thereof, except:
(a) liens for taxes not yet payable for which
adequate reserves have been maintained;
(b) pledges or deposits to secure obligations under
workmen's compensation laws or similar legislation, deposits
to secure public or statutory obligations, warehousemen's or
other like liens, or deposits to obtain the release of such
liens and deposits to secure surety, appeal or customs bonds
on which it or any Subsidiary is the principal, as to all of
the foregoing, only to the extent arising and continuing in
the ordinary course of business;
(c) liens, charges and other encumbrances over such
property or other assets (other than Vessels) of the Borrower
or any of the Vessel Owning/Operating Subsidiaries, unless
otherwise prohibited by Section 10.1(b)(xii);
(d) with respect to Vessels, liens for crew's wages
remaining unpaid in accordance with reasonable commercial
practices or for collision or salvage, liens in favor of
suppliers of necessaries or other similar liens arising in the
ordinary course of the vessel-owning company's business so
long as the suppliers thereof have not evidenced an intention
to enforce any such lien or liens for loss, damage or expense,
which are fully covered by insurance or, in respect of which,
a bond or other security has been posted by the company owning
such Vessel with the appropriate court or other tribunal to
prevent the arrest or secure the release of any vessel from
arrest on account of such claim or lien; and
(e) liens securing Secured Debt existing on the
Closing Date as set forth on Schedule D and Liens on Vessels
owned by the Borrower or its Subsidiaries or the earnings of,
insurances covering or requisition compensation in respect of
such Vessels, provided that the net book value of such Vessels
does not exceed twenty percent (20%) of the net book value of
all Vessels owned by the Borrower and its Subsidiaries, unless
(i) in connection with the acquisition of additional Vessels
whether through a corporate acquisition or otherwise, the
Vessels being so acquired (or their earnings, insurances or
38
requisition compensation) are pledged as security for existing
financing arrangements and are acquired subject to those
arrangements, and (ii) after giving effect to such acquisition
the aggregate of the net book value of the Vessels pledged
prior to such acquisition together with the net book value of
the Vessels so acquired exceeds twenty percent (20%) of the
net book value of all Vessels owned by the Borrower and its
Subsidiaries after giving effect to the acquisition, then the
net book value of such additional vessels so pledged shall be
excluded in determining compliance with this covenant until
the earlier of (x) the date such additional vessels and any
assignment, pledge or encumbrance on their earnings, insurance
or requisition compensation are released and (y) six (6)
months following the date of acquisition;
(ii) Sale of Assets. Cease, or threaten to cease, its
operations or viewed on a consolidated basis with its Subsidiaries,
sell or otherwise dispose of, or threaten to sell or otherwise dispose
of, all or substantially all of the assets thereof, or all or
substantially all of such assets are seized or otherwise appropriated
except for requisition for hire;
(iii) Dividends. Declare or make any distributions to its
shareholders, by dividend or otherwise, or otherwise dispose of any
assets to its shareholders in cash or in any other manner unless the
Borrower and the Subsidiaries are in full compliance with the covenants
contained in this Agreement and no Event of Default has occurred and is
continuing or will occur after giving effect to any declaration or
distributions to shareholders;
(iv) Limitations on Ability to Make Distributions. Create or
otherwise cause to permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or
limited liability company interests, as the case may be, to the
Borrower or any Subsidiary or pay any Indebtedness owed to the
Borrower, (b) make any loans or advances to the Borrower, or (c)
transfer any of its property or assets to the Borrower other than any
such encumbrance or restriction agreed to by (i) any Vessel
Owning/Operating Subsidiary incurring Secured Debt permitted hereunder
to the extent such Secured Debt is incurred in connection with the
acquisition or refinancing of its Vessels or (ii) any Subsidiary party
to any Joint Venture in respect of a restriction referred to in
sub-clause (c) above or (iii) any Subsidiary party to any Joint Venture
to the extent such Joint Venture incurs Indebtedness, but only to the
extent the parties to such Joint Venture are required to agree to any
such restrictions;
(v) Changes in Business. Change or permit any of the
Subsidiaries to change, the nature of its business or commence any
other business not reasonably related to the maritime services,
environmental services, energy services or related businesses;
39
(vi) Consolidation, Merger. Consolidate with, or merge into,
or agree to merge or become consolidated with, or merge into any
corporation (it being understood that the Borrower can merge into, or
agree to merge or become consolidated with any corporation so long as
the Borrower is the surviving entity, any Subsidiary can merge into, or
agree to merge or consolidate with any other Subsidiary and any
Subsidiary can merge into, or agree to merge or become consolidated
with the Borrower);
(vii) Use of Proceeds. Use the proceeds of the Credit Facility
in violation of Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System, as in effect from time to time;
(viii) Redemption/Repurchase of Securities. Redeem or
repurchase any of its outstanding convertible subordinated bonds or any
class of its capital stock now or hereafter outstanding, unless after
giving effect to any such redemption or repurchase it is in compliance
with its covenants hereunder and no Event of Default shall have
occurred and be continuing and notification of any such redemption or
repurchase shall be included in the next quarterly Compliance
Certificate delivered to the Agent;
(ix) No Money Laundering. In connection with this Agreement,
contravene any law, official requirement or other regulatory measure or
procedure implemented to combat "money laundering" (as defined in
Article 1 of the Directive (91/308/EEC) of the Council of European
Communities);
(x) Limitation on Investments in Joint Ventures. Make, and
will not permit any Subsidiary to make, any Investment in any Joint
Venture except, in the absence of an Event of Default, the Borrower and
any Subsidiary may make any Investment in any Joint Venture on any
date, if, immediately after giving effect to such Investment, the
aggregate book value of all Investments made by the Borrower and its
Subsidiaries would not exceed thirty percent (30%) of the Borrower's
Total Capitalization based on the most recent financial statements of
the Borrower required to be provided pursuant to Section 10.1(a)(v) ;
provided however that at the time of such Investment and immediately
after giving effect thereto the Borrower shall be in compliance with
Sections 10.1(a) (xv), (xvi), (xvii) and (xviii); and provided further,
that there shall be excluded from the computation of "Investments"
hereunder any investment in securities of any type which are, at the
time of the determination being made hereunder, fully listed and
registered on (a) an exchange registered with the Securities and
Exchange Commission as a national securities exchange or (b) an
equivalent recognized national securities exchanges in any of the
member countries of the European Union, Mexico, Japan, Norway or
Singapore or such other national securities exchange approved by the
Majority Banks;
(xi) Limitation on Indebtedness. Incur, and shall procure that
the Subsidiaries will not incur, any Indebtedness, except:
(a) Indebtedness under this Credit Facility
Agreement;
40
(b) Existing Indebtedness as set forth in Schedule E
attached hereto, and the renewals of such Indebtedness as long
as there is no resulting increase in Indebtedness;
(c) Indebtedness under interest rate, foreign
exchange or derivatives transactions entered into in the
ordinary course of business;
(d) Indebtedness under performance guarantees and
standby letters of credit entered into in the ordinary course
of business; and
(e) Indebtedness of the Borrower and the Subsidiaries
that may be incurred so long as immediately after giving
effect to the incurrence of such Indebtedness the Borrower
shall be in compliance with Sections 10.1(a)(xv), (xvi),
(xvii) and (xviii); provided that the aggregate of Subsidiary
Funded Debt of each of the Subsidiaries, when added together,
shall not exceed thirty percent (30%) of the Total
Capitalization of the Borrower on a consolidated basis;
provided, further, that when aggregating any Subsidiary Funded
Debt where more than one Subsidiary is liable in respect
thereof, the aggregate of such Subsidiary Funded Debt shall
not exceed the lesser of (A) two times the amount of the
outstanding Underlying Subsidiary Funded Debt and (B) the
aggregate of the Underlying Subsidiary Funded Debt and the
book value of each of the Other Subsidiaries (excluding in the
case of each of the other Subsidiaries which is not a
Wholly-Owned Subsidiary, that portion of the book value of
such Other Subsidiary which represents the minority interest
holders' share of such book value); and provided further that
when aggregating any Subsidiary Funded Debt (i) Subsidiary
Funded Debt outstanding on the date hereof, and any
refinancing thereof with the same Subsidiaries, shall be
counted only once, (ii) any Subsidiary Funded Debt of New
Subsidiaries and an Acquisition Subsidiary, if any, incurred
or assumed in connection with an acquisition of New
Subsidiaries shall be counted only once (including any
refinancing thereof with the same Subsidiaries), (iii) any
Subsidiary Funded Debt incurred or assumed by one or more
Subsidiaries as a result of the acquisition (including new
construction) of additional vessels or other assets by such
Subsidiaries where such Subsidiaries' Funded Debt is
cross-collateralized shall be counted only once in respect of
such Subsidiaries and (iv) any Subsidiary Funded Debt as to
which a Subsidiary is not actually liable shall not be
included; and
(xii) Negative Pledge. Sell, encumber or otherwise transfer,
or permit any Subsidiary to sell, encumber or otherwise transfer, any
of its Vessels or any of the right, title or interest of any thereof
therein, assign, pledge or otherwise encumber any earnings of,
insurances covering or requisition compensation in respect of, any of
its Vessels or sell, assign, pledge or otherwise transfer or encumber
41
any of the shares of stock of any of the Subsidiaries directly or
indirectly legally or beneficially owned by the Borrower, unless after
giving effect to any such sale, assignment, pledge, transfer or other
encumbrance, the Borrower is in compliance with Section 10.1(a)(xvi)
and its other covenants and no Event of Default shall have occurred and
be continuing.
SECTION 11. ASSIGNMENT AND PARTICIPATIONS
-----------------------------
This Agreement shall be binding upon, and inure to the benefit
of, the Borrower, each of the Agents and the Lenders and their respective
successors and assigns, except that the Borrower may not assign any of its
rights or obligations hereunder without the prior written consent of the
Lenders. In giving any consent as aforesaid to any assignment by the Borrower,
the Lenders shall be entitled to impose such conditions as they shall deem
advisable. Any Lender shall be entitled to assign the whole or any part of its
rights or obligations under this Agreement or grant participation(s) in the
Credit Facility to any subsidiary or holding company of such Lender, to any
subsidiary company of any thereof or, in the absence of an Event of Default,
with the consent of the Borrower and the Administrative Agent (in each case not
to be unreasonably withheld) to any other bank or financial institution
regularly engaged in commercial lending and such Lender shall forthwith give
notice of any such assignment or participation to the Administrative Agent and
the Borrower, provided, however, that any such assignment or participation shall
be in a minimum amount of Ten Million Dollars ($10,000,000), (a) any such
assignment to a Lender is to be made pursuant to an Assignment and Assumption
Agreement substantially in the form of Exhibit 6 hereto, and (b) except as
provided in Sections 14.3, no such assignment or participation will result in
any additional costs to, or additional material requirements on, the Borrower.
The Borrower will take all reasonable actions requested by the Lenders to effect
such assignment, including, without limitation, the execution of a written
consent to such Assignment and Assumption Agreement. Anything contained in this
Section 11 to the contrary notwithstanding, any Lender may at any time pledge
all or any portion of its interest and rights under this Agreement (including
all or any portion of any Notes) to any of the twelve Federal Reserve Banks
organized under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341. No such
pledge or the enforcement thereof shall release the pledgor Lender from its
obligations hereunder.
SECTION 12. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.
-------------------------------------------------
12.1. Illegality. In the event that by reason of any change in any
applicable law, regulation or regulatory requirement or in the interpretation
thereof a Lender has a reasonable basis to conclude that it has become unlawful
for such Lender to maintain or give effect to its obligations as contemplated by
this Agreement, the Lender shall inform the Borrower and the Administrative
Agent to that effect, whereafter the liability of such Lender to make its
Commitment available shall forthwith cease and the Borrower shall be required
either to prepay to such Lender any portion of the then outstanding Advances
owing to such Lender immediately or, if such Lender so agrees, to prepay such
portion of the outstanding Advances to such Lender on the last day of the then
current Interest Period or Periods, in accordance with and subject to the
provisions of Section 12.6 and to pay to the Administrative Agent sufficient
amounts of cash to fund any possible drawings under Letters of Credit then in
42
existence, such amounts to be repaid to the Borrower to the extent not utilized
to cover Letter of Credit drawings. In any such event, but without prejudice to
the aforesaid obligations of the Borrower to prepay the outstanding Advances or
part thereof and fund any possible drawings under Letters of Credit then in
existence, the Borrower and such Lender shall negotiate in good faith with a
view to agreeing on terms for making the Commitment available from another
jurisdiction or otherwise restructuring the Commitment on a basis which is not
unlawful.
12.2. Increased Cost. If any change in applicable law, regulation or
regulatory requirement or in the interpretation or application thereof by any
governmental or other authority, shall:
(i) subject a Lender to any Taxes with respect
to its income from the Credit Facility or
any part thereof, or
(ii) change the basis of taxation to a Lender of
payments of principal or interest or any
other payment due or to become due pursuant
to this Agreement (other than a change in
the basis effected by the jurisdiction of
incorporation of such Lender or the domicile
of the Lender's office through which the
Lender's Commitment is made or any
governmental subdivision or other taxing
authority having jurisdiction over such
Lender (unless such jurisdiction is asserted
solely by reason of the activities of the
Borrower or any of the Subsidiaries) or such
other jurisdiction where the Credit Facility
may be payable), or
(iii) impose, modify or deem applicable any
reserve requirements or require the making
of any special deposits against or in
respect of any assets or liabilities of,
deposits with or for the account of, or
loans by, any Lender, or
(iv) impose on any Lender any other condition
affecting the Commitment or any portion of
any Advance thereunder, and the result of
the foregoing is either to increase the cost
to such Lender of making available or
maintaining its Commitment or to reduce the
amount of any payment received by such
Lender
then and in any such case if such increase or reduction in the opinion of such
Lender materially affects the interests of such Lender under or in connection
with this Agreement:
(a) such Lender shall notify the Borrower and the
Administrative Agent of the happening of such event,
(b) the Borrower agrees forthwith upon demand to pay
to such Lender such amount as such Lender certifies to be
necessary to compensate such Lender for such additional cost
or such reduction, and
43
(c) any such demand as is referred to in sub-section
(b) of this Section 12.2 may be made by such Lender at any
time before or after any repayment of the Advances.
12.3. Replacement of Lender or Participant. If the obligation of any
Lender to make its pro rata share of any Advance has been suspended or
terminated pursuant to Section 11, or if any Lender shall notify the Borrower of
the happening of any event leading to increased costs as described in Section
12.2, the Borrower shall have the right, upon twenty (20) Banking Days' prior
written notice to such Lender, to cause one or more banks (a "Replacement Lender
(s)") (which may be one or more of the Lender), each such Replacement Lender to
be satisfactory to the Majority Lenders (determined for this purpose as if such
transferor Lender had no Commitment and held no interest in the Note issued to
it hereunder) and, in each case, with the written acknowledgment of the
Administrative Agent, to purchase such Lender's pro rata share of the Advances
and assume the Commitment of such Lender pursuant to an Assignment and
Assumption Agreement. If one or more such banks are identified by the Borrower
and approved as being reasonably satisfactory to the Majority Lenders
(determined as provided above), the transferor Lender shall consent to such sale
and assumption by executing and delivering an Assignment and Assumption
Agreement. Upon execution and delivery of an Assignment and Assumption Agreement
by the Borrower, the transferor Lender, the Replacement Lender and the
Administrative Agent, and payment by the Replacement Lender to the transferor
Lender of an amount equal to the purchase price agreed between such transferor
Lender and such Replacement Lender, such Replacement Lender shall become a
Lender party to this Agreement (if it is not already a party hereto as
applicable) and shall have all the rights and obligations of a Lender with a
Commitment (which, if such Replacement Lender is already a party hereto, shall
take into account such Replacement Lender's then existing Commitment hereunder)
as set forth in such Assignment and Assumption Agreement and the transferor
Lender shall be released from its obligations hereunder and no further consent
or action by any other Person shall be required. In the event no Replacement
Lender is found or is satisfactory to the Majority Lenders, the Borrower shall
have the right to request a permanent reduction of the Committed Amount by
reducing the whole of such Lender's commitment, provided that (a) the
Administrative Agent and the Lender's whose Commitment the Borrower seeks to
reduce receive ten (10) Banking Days prior written notice of such request and
(b) such reduction occurs on the last day of the applicable Interest Period(s)
for Advances (or portions thereof) outstanding under this Agreement. Upon such
reduction, the reduced Lender shall be released from its obligations hereunder
and no further action by any Person shall be required and the new participation
percentages (as designated in Schedule A hereto) shall be assigned to the
remaining Lenders on a pro rata basis based on their respective Commitments. In
the event that the Administrative Agent, in its capacity as a Lender, is
required to sell its pro rata share of the Advances and its Commitment hereunder
pursuant to this Section 12.3, the Administrative Agent shall, promptly upon the
consummation of any assignment pursuant to this Section 12.3, resign as
Administrative Agent hereunder and the Borrowers shall (subject to the consent
of the Majority Lenders) have the right to appoint another Agent as successor
Administrative Agent, all in accordance with Section 16.12.
44
12.4. Non-availability of Funds. If the Administrative Agent shall
determine that, by reason of circumstances affecting the London Interbank Market
generally, adequate and reasonable means do not or will not exist for
ascertaining the Applicable Rate for any Interest Period, the Administrative
Agent shall give notice of such determination to the Borrower. The Borrower and
the Lenders shall then negotiate in good faith in order to agree upon a mutually
agreeable basis for funding the Advance or Advances in question, and/or for
determining the interest rate and/or Interest Period(s) to be substituted for
those which would otherwise have applied under this Agreement. If the Borrower
and the Lenders are unable to agree upon such a substituted funding base,
interest rate and/or Interest Period(s) within thirty (30) days of the giving of
such notice, the Borrower shall repay the Credit Facility, or the relevant
portion thereof, as the case may be, to the Lenders immediately; provided,
however, that if the Borrower fails to make such repayment, the Lenders shall
determine a funding basis, set an interest rate and/or set an Interest
Period(s), as the case may be, all to take effect from the expiration of the
relevant Interest Period(s) in effect at the date of said determination notice,
which rate shall be equal to the aggregate of the Margin and the cost to the
Lenders of funding the relevant Advance or Advances.
12.5. Determination of Losses. A certificate or determination notice of
the Agents and the Lenders as to any of the matters referred to in this Section
12, absent manifest error, shall be conclusive and binding on the Borrower.
12.6. Compensation for Losses. Where the Advances are to be prepaid by
the Borrower pursuant to Section 12.1 the Borrower agrees simultaneously with
such prepayment to pay to the relevant Lender all accrued interest to the date
of actual payment and all other sums payable by the Borrower to such Lender
pursuant to this Agreement, together with such amounts as may be certified by
such Lender to be necessary to compensate such Lender for any actual loss,
premium or penalties incurred or to be incurred by it on account of funds
borrowed to make, fund or maintain its Commitment for the remainder (if any) of
the then current Interest Period or Periods, if any, but otherwise without
penalty or premium.
SECTION 13. CURRENCY INDEMNITY
------------------
13.1. Currency Conversion. If for the purpose of obtaining or enforcing
a judgment in any court in any country it becomes necessary to convert into any
other currency (the "judgment currency") an amount due in Dollars or a
particular Foreign Currency, as the case may be, under this Agreement or under
the Notes, then the conversion shall be made, in the discretion of the
Administrative Agent, at the rate of exchange prevailing either on the date of
default or on the day before the day on which the judgment is given or the order
for enforcement is made, as the case may be (the "conversion date"), provided
that the Administrative Agent shall not be entitled to recover under this
section any amount in the judgment currency which exceeds at the conversion date
the amount in Dollars or the relevant Foreign Currency, as the case may be, due
under this Agreement and/or under the Notes.
13.2. Change in Exchange Rate. If there is a change in the rate of
exchange prevailing between the conversion date and the date of actual payment
of the amount due, the Borrower shall pay such additional amounts (if any, but
45
in any event not a lesser amount) as may be necessary to ensure that the amount
paid in the judgment currency when converted at the rate of exchange prevailing
on the date of payment will produce the amount then due under this Agreement
and/or under the Notes in Dollars or the relevant Foreign Currency; any excess
over the amount due received or collected by the Lenders shall be remitted to
the Borrower.
13.3. Additional Debt Due. Any amount due from the Borrower under
Section 13.2 shall be due as a separate debt and shall not be affected by
judgment being obtained for any other sums due under or in respect of this
Agreement and/or under or in respect of the Notes.
13.4. Rate of Exchange. The term "rate of exchange" in this Section 13
means the rate at which the Administrative Agent in accordance with its normal
practices is able on the relevant date to purchase Dollars or the relevant
Foreign Currency with the judgment currency and includes any premium and costs
of exchange payable in connection with such purchase.
SECTION 14. FEES AND EXPENSES
-----------------
14.1. Commitment Fee. (a) The Borrower shall pay to the Administrative
Agent, for distribution to the Lenders, a commitment fee in Dollars, payable
quarterly in arrears, computed at the relevant rates per annum applicable
pursuant to this Section 14.1 (the "Commitment Fee Rate(s)") on the average
unfunded portion of the Committed Amount (valued in Dollars) during such
quarter. The commitment fee shall accrue from the date hereof and shall
terminate on the Termination Date. Said fee shall be payable quarterly in
arrears at the end of each calendar quarter. Such commitment fee shall be
calculated on the basis of actual days elapsed over a 360 day year.
(b) The Commitment Fee Rates, as determined from time to time
by the Administrative Agent as provided herein, shall vary based upon (a) the
Borrower's credit rating as determined by S&P and Moody's, or (b) if the
Borrower is no longer rated, the ratio of the Borrower's consolidated Funded
Debt to the consolidated EBITDA for the Borrower, as follows:
- --------------------------------------------------------------------------------------------------------------------------------
Commitment Fee Rate Credit Rating Funded Debt/EBITDA
- --------------------------------------------------------------------------------------------------------------------------------
17.5 bp A-/A3 Less than or equal to 0.75
- --------------------------------------------------------------------------------------------------------------------------------
20.0 bp BBB+/Baa1 greater than 0.75, but
less than or equal to 1.50
- --------------------------------------------------------------------------------------------------------------------------------
25.0 bp BBB/Baa2 greater than 1.50, but
less than or equal to 2.25
- --------------------------------------------------------------------------------------------------------------------------------
32.5 bp BBB-/Baa3 greater than 2.25, but
less than or equal to 3.0
- --------------------------------------------------------------------------------------------------------------------------------
40.0 bp BB+/Ba1 greater than 3.0, but
less than or equal to 4.0
- --------------------------------------------------------------------------------------------------------------------------------
65.0 bp Less than BB+/Ba1 greater than 4.0
- --------------------------------------------------------------------------------------------------------------------------------
46
For purposes of determining the applicable Commitment Fee Rate(s), in the case
of a split rating in the respective credit ratings of the Borrower by Moody's
and S&P the higher of the two ratings shall apply. In the event of a split
rating of more than one level, the rating which is one level above the lower
rating shall apply. The applicable Commitment Fee Rate(s) shall be determined by
the Administrative Agent quarterly (based upon the latest 10Q report or 10K
report and Compliance Certificate delivered by the Borrower to the
Administrative Agent from time to time pursuant to this Agreement). The newly
determined Commitment Fee Rate(s) shall be effective on the on the last day of
the month following the month during which such report was delivered to the
Administrative Agent.
14.2. Letter of Credit and Facing Fees and Related Charges. In
addition, the Borrower shall pay to the Administrative Agent, for distribution
to the Lenders, a fee in Dollars in respect of each Letter of Credit (the
"Letter of Credit Fee") computed at a rate per annum equal to the Applicable
Margin in effect from time to time on the daily Stated Amount of such Letter of
Credit as reduced by any drawings thereunder. The Borrower further agrees to pay
to each Letter of Credit Issuer, commencing at such time, a fee in Dollars in
respect of each Letter of Credit (the "Facing Fee") computed at a rate per annum
equal to one-eighth of one percent (1/8%) on the daily Stated Amount of such
Letter of Credit as reduced by any drawings thereunder. Accrued Letter of Credit
and Facing Fees shall be calculated on the basis of actual days elapsed over a
360 day year and shall be due and payable quarterly in arrears on the first day
of each October, January, April and July of each year the Credit Facility
remains outstanding and on the Termination Date. The Borrower also agrees to pay
to the Letter of Credit Issuer all customary issuing and handling fees of the
Letter of Credit Issuer in connection with its issuance of Letters of Credit.
14.3. Administrative Fee. The Borrower shall also pay to the
Administrative Agent an annual agency fee of Five Thousand Dollars ($5,000) for
each additional Lender other than the Agents which acquires a participation or
syndicated interest in the Credit Facility up to a maximum of Fifty Thousand
Dollars ($50,000) payable in advance, commencing upon the date on which each
such additional Lender acquires such participation or syndicated interest in the
Credit Facility and annually beginning from the date hereof.
14.4. Agents' Other Fees. The Borrower shall pay to the Agents, for
their own account, such fees as shall have been agreed in accordance with the
letter agreement dated October 26, 2001 between the Borrower and the Agents.
14.5. Costs, Charges and Expenses. The Borrower agrees to pay the
Agents and the Lenders upon demand (whether or not the Credit Facility or any
part thereof is made available hereunder) all reasonable costs, charges and
expenses (including legal fees, limited to those of Seward & Kissel LLP, and
expenses, as well as travel expenses of the Agents and the Lenders) incurred by
the Agents and the Lenders in connection with the negotiation, preparation,
syndication, execution and enforcement or attempted enforcement of this
Agreement, the Notes or otherwise in connection with the Credit Facility, as
47
well as in connection with any supplements, amendments, assignments, waivers or
consents relating thereto.
14.6. Indemnification. Neither any Agent nor any Lender nor any
director, officer, agent or employee of any thereof shall be liable to the
Borrower for any action taken or not taken by it in connection herewith in the
absence of its own gross negligence or willful misconduct. The Borrower hereby
agrees to indemnify each of the Agents and the Lenders, their respective
affiliates and the respective directors, officers, agents and employees of the
foregoing (each an "Indemnitee") and hold each Indemnitee harmless from and
against any and all liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and disbursements of
counsel, which may be imposed on, incurred by or asserted against, any
Indemnitee in any way relating to or arising out of this Agreement and the Notes
or any action taken or omitted by any Indemnitee hereunder or thereunder
provided that (i) no Indemnitee shall have the right to be indemnified hereunder
for such Indemnitee's own gross negligence or willful misconduct and (ii) to the
extent permitted by law, the Indemnitee shall provide the Borrower with prompt
notice, but not later than sixty (60) days after it becomes aware, of any claim
giving rise to any such indemnified liability.
SECTION 15. APPLICABLE LAW, JURISDICTION AND WAIVER
---------------------------------------
15.1. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
15.2. Jurisdiction. The Borrower hereby irrevocably submits to the
jurisdiction of the courts of the State of New York and of the United States
District Court for the Southern District of New York in any action or proceeding
brought against it by the Agents and the Lenders under this Agreement or under
any document delivered hereunder and the Borrower hereby irrevocably appoints
SEACOR Management Services Inc. with an office at 1370 Avenue of the Americas,
New York, New York, its attorney-in-fact and agent for service of summons or
other legal process thereon, which service may be made by serving a copy of any
summons or other legal process in any such action or proceeding on such agent
and such agent is hereby authorized and directed to accept by and on behalf of
the Borrower service of summons and other legal process of any such action or
proceeding against the Borrower. The service, as herein provided, of such
summons or other legal process in any such action or proceeding shall be deemed
personal service and accepted by the Borrower as such, and shall be legal and
binding upon the Borrower for all the purposes of any such action or proceeding.
Final judgment (a certified or exemplified copy of which shall be conclusive
evidence of the fact and of the amount of any indebtedness of a Borrower to any
Agent or Lender) against the Borrower in any such legal action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment. The Borrower will advise the Administrative Agent promptly of any
change of address of the foregoing agent or of the substitution of another agent
therefor. In the event that the foregoing agent or any other agent appointed by
the Borrower shall not be conveniently available for such service or if the
Borrower fails to maintain an agent as provided herein, the Borrower hereby
irrevocably appoints the person who then is the Secretary of State of the State
of New York as such attorney-in-fact and agent. The Borrower will advise the
foregoing agent of the appointment made hereby, but failure to so advise shall
48
not affect the appointment made hereby. Notwithstanding anything herein to the
contrary, the Agents and the Lenders may bring any legal action or proceeding in
any other appropriate jurisdiction.
15.3. Waiver of Jury Trial. IT IS MUTUALLY AGREED BY AND AMONG THE
BORROWER, AND THE AGENTS AND THE LENDERS THAT EACH OF THEM HEREBY WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO
AGAINST ANY OTHER PARTY HERETO ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT OR THE NOTES.
SECTION 16. THE AGENTS
----------
16.1. Appointment of Agents. Each of the Lenders hereby irrevocably
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement and under the Notes as are
delegated to such Agent by the terms hereof and thereof. Neither the Agents nor
any of their respective directors, officers, employees or agents shall be liable
for any action taken or omitted to be taken by it or them under this Agreement
and under the Notes or in connection therewith, except for its or their own
gross negligence or willful misconduct.
16.2. Distribution of Payments. Whenever any payment is received by the
Administrative Agent from the Borrower for the account of the Lenders, or any of
them, whether of principal or interest on the Notes, commissions, commitment
fees under Section 14.1, or otherwise, it will thereafter cause like funds
relating to such payment to be promptly distributed ratably to the Lenders
according to their respective Commitments, in each case to be applied according
to the terms of this Agreement.
16.3. Holder of Interest in Notes. The Administrative Agent may treat
each Lender as the holder of all of the interest of such Lender in its Notes
unless and until the Administrative Agent has received a copy of an Assignment
and Assumption Agreement evidencing the transfer of all or any part of such
Lender's interest in the Credit Facility.
16.4. No Duty to Examine, Etc. The Agents shall not be under a duty to
examine or pass upon the validity, effectiveness or genuineness of this
Agreement, the Notes or any instrument, document or communication furnished
pursuant to this Agreement or the Notes or in connection with any thereof and
the Agents shall be entitled to assume that the same are valid, effective and
genuine, have been signed or sent by the proper parties and are what they
purport to be.
16.5. Agents as Lenders. With respect to that portion of the Credit
Facility made available by it, each Agent shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not an
Agent, and the term "Lender" or "Lenders" shall include the Agents in their
capacity as Lenders. Each Agent and its affiliates may accept deposits from,
lend money to and generally engage in any kind of business with, the Borrower as
if it were not an Agent.
49
16.6. (a) Obligations of Agents. The obligations of each Agent under
this Agreement and under the Notes are only those expressly set forth herein and
therein.
(b) No Duty to Investigate. No Agent shall at any time be under
any duty to investigate whether an Event of Default, or an event which with the
giving of notice or lapse of time, or both, would constitute an Event of
Default, has occurred or to investigate the performance of this Agreement and
the Notes by the Borrower.
(c) Reports and Notices. Promptly upon receipt thereof by the
Administrative Agent, the Administrative Agent shall furnish each Lender with a
copy of all financial reports and notices delivered to it by the Borrower
hereunder.
16.7. (a) Discretion of Agents. Each Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any rights
which may be vested in it by, and with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect
of, this Agreement and the Notes, unless such Agent shall have been instructed
by the Majority Lenders to exercise such rights or to take or refrain from
taking such action; provided, however, that such Agent shall not be required to
take any action which exposes such Agent to personal liability or which is
contrary to this Agreement or applicable law.
(b) Instructions of Majority Lenders. Each Agent shall in all
cases be fully protected in acting or refraining from acting under this
Agreement and under the Notes in accordance with the instructions of the
Majority Lenders (or, where expressly required hereby, all the Lenders), and any
action taken or failure to act pursuant to such instructions shall be binding on
all of the Lenders.
16.8. Assumption re Event of Default. Except as otherwise provided in
Section 16.4, the Administrative Agent shall be entitled to assume that no Event
of Default, or event which with the giving of notice or lapse of time, or both,
would constitute an Event of Default, has occurred and is continuing, unless the
Administrative Agent has been notified by the Borrower of such fact or has been
notified by a Lender that such Lender considers that an Event of Default or such
an event (specifying in detail the nature thereof) has occurred and is
continuing. In the event that the Administrative Agent shall have been notified
by any party in the manner set forth in the preceding sentence of any Event of
Default or of an event which with the giving of notice or lapse of time, or
both, would constitute an Event of Default, the Administrative Agent shall
notify the Lenders and shall take action and assert such rights under this
Agreement or the Notes as the Majority Lenders shall request in writing.
16.9. No Liability of Agents and the Lenders. No Agent or Lender shall
be under any liability or responsibility whatsoever:
(a) to the Borrower or any other person or entity as a
consequence of any failure or delay in performance by, or any breach by, any
other Lender or any other person of any of its or their obligations under this
Agreement or under the Notes;
50
(b) to any Lender or Lenders as a consequence of any failure or
delay in performance by, or any breach by the Borrower of any of its obligations
under this Agreement or under the Notes; or
(c) to any Lender or Lenders for any statements, representations
or warranties contained in this Agreement or in the Notes or in any document or
instrument delivered in connection with the transaction hereby contemplated; or
for the validity, effectiveness, enforceability or sufficiency of this Agreement
and the Notes or any document or instrument delivered in connection with the
transactions hereby contemplated.
16.10. Indemnification of Agents. The Lenders agree to indemnify each
Agent (to the extent not reimbursed by the Borrower), pro rata according to the
respective amounts of their Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including
reasonable legal fees and expenses incurred in investigating claims and
defending itself against such liabilities) which may be imposed on, incurred by
or asserted against, such Agent in any way relating to or arising out of this
Agreement and the Notes, any action taken or omitted by such Agent hereunder or
thereunder or the preparation, administration, amendment or enforcement of, or
waiver of any provision of, this Agreement and the Notes, except that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from such Agent's gross negligence or willful misconduct.
16.11. Consultation with Counsel. Each Agent may consult with legal
counsel selected by such Agent and shall not be liable for any action taken,
permitted or omitted by it in good faith in accordance with the advice or
opinion of such counsel.
16.12. Resignation. Each Agent may resign at any time by giving sixty
(60) days' written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Lenders shall have the right to appoint a successor Agent. If
no successor Agent shall have been so appointed by the Lenders and shall have
accepted such appointment within sixty (60) days after the retiring Agent's
giving notice of resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a bank or trust company of
recognized standing. The appointment of any successor Agent shall (unless an
Event of Default has occurred and is continuing) be subject to the prior written
consent of the Borrower, such consent not to be unreasonably withheld. After any
retiring Agent's resignation as Agent hereunder, the provisions of this Section
16 shall continue in effect for its benefit with respect to any actions taken or
omitted by it while acting as Agent.
16.13. Representations of Lenders. Each Lender represents and warrants
to each other Lender and each Agent that:
(i) in making its decision to enter into this Agreement
and to make its Commitment available hereunder, it
has independently taken whatever steps it considers
necessary to evaluate the financial condition and
affairs of the Borrower, that it has made an
51
independent credit judgment and that it has not
relied upon any statement, representation or warranty
by any other Lender or any Agent; and
(ii) So long as any portion of its Commitment remains
outstanding, it will continue to make its own
independent evaluation of the financial condition and
affairs of the Borrower.
16.14. Notification of Event of Default. The Administrative Agent
hereby undertakes promptly to notify the Lenders, and each of the Lenders hereby
undertakes promptly to notify the Administrative Agent and the other Lenders, of
the existence of any Event of Default which shall have occurred and be
continuing of which the Administrative Agent or such Lender has actual
knowledge.
SECTION 17. NOTICES AND DEMANDS
17.1. Notices in Writing. Every notice or demand under this Agreement
shall be in writing and may be given or made by telecopy.
17.2. Addresses for Notice. Every notice or demand shall be sent, if to
the Borrower or the Administrative Agent, at the address set forth below and, if
to the Lenders at their address and telecopy numbers set forth in Schedule A or
at such other address or telecopy numbers as such party may hereafter specify
for the purpose by notice to each other party hereto.
Any notices addressed to the Borrower shall be sent as follows:
c/o SEACOR Management Services Inc.
1370 Avenue of the Americas, 25th floor
New York, New York 10019
Telecopy No.: (212) 582-8522
Any notices addressed to the Administrative Agent shall be sent as follows:
200 PARK AVENUE
New York, New York 10166-0396
Telecopy No.: (212) 681-3900
Any notice sent by telecopy shall be confirmed by letter dispatched as soon as
practicable thereafter.
17.3. Notices Deemed Received. Every notice or demand shall, except so
far as otherwise expressly provided by this Agreement, be deemed to have been
received (provided that it is received prior to 2 p.m. New York time; otherwise
it shall be deemed to have been received on the next following Banking Day), in
the case of a telecopy at the time of dispatch thereof (provided further that if
the date of dispatch is not a Banking Day in the locality of the party to whom
52
such notice or demand is sent it shall be deemed to have been received on the
next following Banking Day in such locality) and, in the case of a letter, at
the time of receipt thereof.
SECTION 18. MISCELLANEOUS
18.1. Time of Essence. Time is of the essence of this Agreement but no
failure or delay on the part of the Agents and the Lenders to exercise any power
or right under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise by the Agents and the Lenders of any power or right
hereunder preclude any other or further exercise thereof or the exercise of any
other power or right. The remedies provided herein are cumulative and are not
exclusive of any remedies provided by law.
18.2. Unenforceable, etc.; Provisions - Effect. In case any one or more
of the provisions contained in this Agreement or in the Notes would, if given
effect, (i) cause such of the Borrower or any of the Subsidiaries, as the case
may be, which owns United States flag vessels to cease to be a citizen of the
United States within the meaning of Section 2 of the United States Shipping Act
1916, as amended, or cause a transfer of any of the Vessels registered under the
laws and flag of the United States of America in violation of Section 9 of said
Act or (ii) be otherwise invalid, illegal or unenforceable in any respect under
any law applicable in any relevant jurisdiction, said provision shall not be
enforceable against the Borrower or any of the Subsidiaries, as the case may be,
but the validity, legality and enforceability of the remaining provisions herein
or therein contained shall not in any way be affected or impaired thereby.
18.3. References. References herein to Sections and Schedules are to be
construed as references to sections of, and schedules to, this Agreement.
18.4. Further Assurances. The Borrower agrees that if this Agreement or
the Notes shall at any time be deemed by the Administrative Agent for any reason
insufficient in whole or in part to carry out the true intent and spirit hereof
or thereof, it will execute or cause to be executed such other and further
assurances and documents as in the opinion of the Administrative Agent may be
required in order more effectively to accomplish the purposes of this Agreement
and the Notes.
18.5. Entire Agreement; Amendments. This Agreement, the Notes and the
letter agreement referred to in Section 14.4 constitute the entire agreement of
the parties hereto, including all parties added hereto pursuant to an Assignment
and Assumption Agreement. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute one and the same instrument. Any
provision of this Agreement or the Notes may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the Borrower and the
Majority Lenders (and, if the rights or duties of the Administrative Agent are
affected thereby, by the Administrative Agent); provided that no amendment or
waiver shall, unless signed by all the Lenders, (i) increase or decrease the
Commitment of any Lender or subject any Lender to any additional obligation
other than those set forth herein, (ii) reduce the principal of or rate of
interest on the Credit Facility or any fees hereunder, (iii) postpone the date
fixed for any payment of principal of or interest on the Loan or any fees
hereunder, (iv) amend Section 11, (v) waive any condition precedent to the
53
availability of the Credit Facility or any Advance thereunder, (vi) amend or
modify this Section 18.5 or (vii) change the definition of "Majority Lenders".
18.6. Adjustments. If any Lender (a "Benefitted Lender") shall at any
time receive any payment of all or any part of the Advances made by such Lender,
or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 9.1(i) or (k), or otherwise) in a greater
proportion than any such payment to and collateral received by any other Lender
in respect of such other Lender's Advances, or interest thereon, such Benefitted
Lender shall purchase for cash from each of the other Lenders such portion of
each such other Lender's Advances, and shall provide each of such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders,
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Borrowings may exercise all rights of
payment (including, without limitation, rights of set-off, to the extent not
prohibited by law) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
54
IN WITNESS whereof the parties hereto have caused this
Agreement to be duly executed by their duly authorized
representative as of the day and year first above written.
SEACOR SMIT INC., FLEET NATIONAL BANK,
as Borrower as Syndication Agent, Joint Lead Arranger
and Lender
By_______________________________ By_______________________________
Name : Name :
Title: Title:
DEN NORSKE BANK ASA, NORDEA, acting through Nordea Bank Finland Plc, New York Branch
as Administrative Agent, Joint Lead Arranger as Documentation Agent, Joint Lead Arranger
and Lender and Lender
By_______________________________
By_______________________________ Name :
Name : Title:
Title:
By_______________________________
By_______________________________ Name :
Name : Title:
Title:
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND BANK ONE, NA
as Co-Agent and Lender as Lender
By_______________________________
Name : By_______________________________
Title: Name :
Title:
HAMBURGISCHE LANDESBANK -GIROZENTRALE- WHITNEY NATIONAL BANK
as Lender as Lender
By_______________________________
Name : By_______________________________
Title: Name :
Title:
By_______________________________
Name :
Title:
SCHEDULE A
----------
PARTICULARS OF LENDERS
----------------------
Participation
Name and Address Commitment Percentage
- ---------------- ---------- ----------
Den norske Bank ASA $43,125,000 21.5625%
200 Park Avenue
New York, NY 10166-0396
U.S.A
Fleet National Bank $43,125,000 21.5625%
Transportation Division
MA DE 10008D
100 Federal Street
Boston, MA 02110 U.S.A.
Nordea , acting through $30,000,000 15.0000%
Nordea Bank Finland Plc, New
York Branch
11 West 42nd Street, 7th Floor
New York, N.Y. 10036
U.S.A.
The Governor and Company $28,750,000 14.3750%
of the Bank of Scotland
New Uberior House
11 Earl Grey Street, 2nd Floor
Edinburgh EH3 9BN
Scotland
Participation
Name and Address Commitment Percentage
- ---------------- ---------- ----------
Hamburgische Landesbank $25,000,000 12.5000%
- -Girozentrale-
Gerhart-Hauptmann Platz 50
D-20095 Hamburg
Federal Republic of Germany
Bank One, NA $15,000,000 7.5000%
201 St. Charles Ave.
Mail Code LA3-5268
New Orleans, LA 70170
Whitney National Bank $15,000,000 7.5000%
228 St. Charles Ave.
New Orleans, LA 70130
SCHEDULE B
----------
VESSEL OWNING/OPERATING SUBSIDIARIES AND OTHER SUBSIDIARIES
-----------------------------------------------------------
(as of January 31, 2002)
(Vessel Owning/Operating Subsidiaries are indicated by the symbol "O")
SEACOR SMIT Inc.
Acadian Supply Ships Inc. (100% interest)o
Anna Offshore Inc. (100% interest)o
C&C Boat Rentals (100% interest)
CRN Holdings Inc. (100% interest)
International Response Corporation (100% interest)
Venezuelan Response Corporation, C.A.
(100% interest)
National Response Corporation (100% interest)
National Response Corporation of Puerto
Rico (100% interest)
OSRV Holdings, Inc. (100% interest)
NRC Services, Inc. (100% interest)
Energy Logistics, Inc. (66% interest)
Liberty Services, Inc. (100% interest)
ERST/O'Brien's, Inc. (100% interest)
ERST, Inc. (100% interest)
O'Brien's Oil Pollution Services, Inc. (100%
interest)
F2B Investments Inc. (100% interest)
G & B Marine Transportation, Inc. (100% interest)
Galaxie Offshore Inc. (100% interest)o
Gilbert Cheramie Boats, Inc. (100% interest)
Gilco Supply Boats Inc. (100% interest)
Graham Boats Inc. (100% interest)o
Graham Marine Inc. (100% interest)
Graham Offshore Inc. (100% interest)o
Hampton Barge Line, Inc. (100% interest)
Weston Barge Line, Inc. (100% interest)
Inland River Towing (100% interest)
McCall Enterprises, Inc. (100% interest)
Cameron Boat Rentals, Inc. (100% interest)o
Gladys McCall, Inc. (100% interest)o
Cameron Crews, Inc. (100% interest)
Carroll McCall, Inc. (100% interest)o
Gulf Marine Transportation Inc. (100% interest)o
McCall's Boat Rentals, Inc. (100% interest)o
McCall Crewboats, L.L.C. (50% interest)
McCall Marine Services, Inc. (100% interest)o
Philip Allan McCall, Inc. (100% interest)o
McCall Support Vessels, Inc. (100% interest)
McCall Crewboats, L.L.C. (50% interest)
SEAMAC Offshore L.L.C. (50% interest)
Offshore Aviation Inc. (100% interest)
N.F. McCall Crews, Inc. (100% interest)
Plaisance Marine Inc. (100% interest)
SCF Barge Line II (100% interest)
SCF Management Services Inc. (100% interest)
SCF Marine Inc. (100% interest)
SCF Transportation, Inc. (100% interest)
SCF Towing Corporation (100% interest)
SEACOR Bulk Carriers Inc. (100% interest)
SEACOR Capital (Singapore) Pte. (100% interest)
SEACOR Capital (UK) Ltd. (100% interest)
Boston Putford Offshore Safety Ltd. (100% interest)
Putford Ltd. (100% interest)
Southern Crewing Services Ltd. (100%
interest)
Warbler Shipping Ltd. (100% interest)
SEACOR Capital Corporation (100% interest)
SEACOR Capital Two Ltd. (100% interest)
SEACOR Communications Inc.
SEACOR International Chartering Ltd. (100% interest)
SEACOR International Ltd. (100% interest)
SEACOR Management Services Inc. (100% interest)
SEACOR Marine (Asia) Pte. Ltd. (100% interest)
SEACOR Marine (Bahamas) Inc. (100% interest)
SEACOR Marine (Nigeria) Inc. (100% interest)o
West Africa Offshore Ltd. (40% interest)
SEACOR Marine (IOM) Ltd. (100% interest)
SEACOR Marine (West Africa) SAS (100% interest)
SEACOR Marine Inc. (100% interest)o
Arthur Levy Enterprises, Inc. (100% interest)o
SEACOR Deepwater 1, Inc. (49.71%
interest)o
SEACOR Marine (Europe) B.V. (100% interest) o
SEAMAC Offshore L.L.C. (50% interest)
SEACOR Marine International Inc. (100% interest)o
SEACOR Marine (Mexico) Inc. (100% interest)
SEACOR Ocean Support Services Inc. (100% interest)o
SEACOR Ocean Lines Inc. (100% interest)o
SEACOR Marine Management Ltd. (100% interest)
SEACOR Ocean Boats Inc. (100% interest)
SEACOR Offshore Inc. (100% interest)o
SEACOR Deepwater 1, Inc. (50.29% interest)o
SEACOR Deepwater 2, Inc. (100% interest)o
SEACOR Deepwater 3, Inc. (100% interest)o
SEACOR Offshore Rigs Inc. (100% interest)
SEACOR Supply Ships Associates Inc. (100% interest)o
SEACOR Worldwide Inc. (100% interest)o
Coseamar Inc. (100% interest)
SEACOR-SMIT Holdings B.V. (80% interest)
SEACOR Offshore Supplyships One Ltd. (100%
interest)
SEACOR Offshore Supplyships Two Ltd. (100% interest) (in liquidation)
SEACOR-SMIT Offshore I B.V. (100% interest)(in liquidation)
SEACOR-SMIT Offshore II B.V. (100% interest)(in liquidation)
SEACOR-SMIT Offshore (International) Inc. (100% interest)
SEACOR-SMIT Holdings B.V. (10% interest)
SEACOR-SMIT Offshore (International) Ltd. (100% interest)o
SEACOR-SMIT Offshore (Worldwide) Ltd. (100% interest)o
SEACOR-SMIT Offshore I Inc. (100% interest)
SEACOR-SMIT Holdings B.V. (10% interest)
SMIT Holdings Inc. (100% interest)
Stirling Shipping Holdings Ltd. (100% interest)
Stirling Shipping Company Ltd. (100% interest)
Stirling Marine Ltd. (100% interest)
Stirling Offshore Ltd. (100% interest)
Stirling Shipmanagement (100% interest)
Bruce Marine Ltd. (100% interest)
Suffolk Barge Line Inc. (100% interest)
VEESEA Holdings Inc. (98.9% interest)
Gem Shipping Inc. (100% interest)
Gem Shipping Ltd. (100% interest)o
Storm Shipping Inc. (100% interest)
Vector-Seacor Ltd. (100% interest)
Vision Offshore Inc. (100% interest)
SEACOR VISION LLC (75% interest)o
SCHEDULE C
----------
THE VESSELS
-----------
VESSELS BY CLASS
AS OF 12/31/2001
VSL/DEPT NAME CLASS LENGTH HP YR. BUILT RIGHTS
Merou AHTS 195 8,000 1982 Owned
Tiger Fish AHTS 195 8,000 1982 Owned
Jade Fish AHTS 196 8,000 1982 Owned
Isla Ballena AHTS 197 6,200 1984 JV
Shin Niche Maru AHTS 198 4,000 1997 JV
Isla de Cedros AHTS 198 6,140 1982 JV
Smit-Lloyd 74 AHTS 198 6,000 1982 Owned
Smit-Lloyd 120 AHTS 208 10,000 1983 Owned
Smit-Lloyd 121 AHTS 208 10,000 1983 Owned
Smit Curacao AHTS 210 8,000 1974 JV
Smit-Lloyd 110 AHTS 210 8,000 1975 JV
Seacor Lenga (ex Smit Lenga) AHTS 210 6,000 1982 JV
Seacor Lilen AHTS 212 9,000 1985 JV
Smit-Lloyd 90 AHTS 212 9,000 1985 Owned
Stirling Sirius AHTS 213 9,180 1985 Owned
Stirling Spica AHTS 213 9,180 1985 Owned
Seacor Energy AHTS 216 6,140 1985 Owned
Seacor Force AHTS 216 6,140 1985 Owned
Seacor Star (ex Sea-Aker Star) AHTS 216 7,200 1978 Owned
Seacor Valiant AHTS 220 8,000 1999 Owned
Seacor Valor AHTS 220 8,000 1999 Owned
Seacor Venture AHTS 220 8,000 2000 Owned
Seacor Voyager AHTS 220 8,000 1999 Owned
Seacor Vantage AHTS 221 12,280 1998 Owned
Smit-Lloyd Sound AHTS 222 7,885 1983 Owned
Smit-Lloyd Safe AHTS 222 9,280 1983 Owned
Seacor Vision AHTS 225 12,280 1997 BB-in
Smit-Lloyd 72 AHTS 238 6,000 1981 Owned
Stirling Iona AHTS 242 15,000 2000 Owned
Gerard Jordan AHTS 255 14,000 1998 Owned
Seacor Vanguard AHTS 255 14,400 1998 BB-in
TOTAL AHTS 31
Albert McCall Crew 110 2,100 1980 Owned
Carroll McCall Crew 110 2,100 1979 Owned
Henry McCall Crew 110 2,100 1979 Owned
Joseph McCall Crew 110 2,100 1978 Owned
Katherine McCall Crew 110 2,100 1980 Owned
Pete McCall Crew 110 2,100 1979 JV
Phyllis McCall Crew 110 2,100 1976 Owned
Sybil McCall Crew 110 2,100 1982 Owned
Kelly McCall Crew 110 2,400 1981 Owned
William R. McCall Crew 110 2,720 1980 Owned
Miss Mona Crew 120 2,040 1987 BB-in
Joyce McCall II Crew 125 3,000 1981 Owned
Miss Adrian Crew 130 2,040 1990 BB-in
Miss Allie Crew 130 2,040 1989 Owned
Miss Allison Crew 130 2,040 1990 Owned
Miss Angela Crew 130 2,040 1991 BB-in
Miss Anita Crew 130 2,040 1989 Owned
Miss Anna Crew 130 2,040 1989 Owned
Miss Beth Crew 130 2,040 1990 BB-in
Miss Carissa Crew 130 2,040 1989 BB-in
Miss Diane Crew 130 2,040 1988 BB-in
Miss Ellen Crew 130 2,040 1989 Owned
Miss Faye Crew 130 2,040 1991 BB-in
Miss Freida Crew 130 2,040 1990 Owned
Miss Gayla Crew 130 2,040 1988 Owned
Miss Ina Crew 130 2,040 1990 Owned
Miss Janice Crew 130 2,040 1991 Owned
Miss Kathy Crew 130 2,040 1991 Owned
Miss Margaret Crew 130 2,040 1990 Owned
Miss Mary Ann Crew 130 2,040 1991 Owned
Miss Maureen Crew 130 2,040 1988 BB-in
Miss Melissa Crew 130 2,040 1990 Owned
Miss Pam Crew 130 2,040 1990 Owned
Miss Peggy Ann Crew 130 2,040 1989 Owned
Miss Ramona Crew 130 2,040 1990 Owned
Miss Susan Crew 130 2,040 1989 Owned
Miss Sybil Crew 130 2,040 1988 JV
Miss Velma Crew 130 2,040 1988 JV
Stephanie McCall Crew 130 2,720 1991 Owned
Sylvia F Crew 130 2,800 1990 Owned
Madeleine McCall Crew 130 2,880 1990 Owned
Beverly F Crew 135 2,700 1993 Owned
Kevin McCall Crew 135 2,800 1994 Owned
Phyllis McCall II Crew 135 2,800 1995 Owned
Miss Kathryn Crew 135 3,160 1993 Owned
Miss Pamela Crew 135 3,160 1994 BB-in
Miss Pearl Crew 135 3,160 1993 Owned
Miss Pearl Louise Crew 135 3,160 1994 BB-in
Miss Amanda Crew 135 3,260 1995 Owned
Green Ocean Crew 136 4,000 1993 JV
Jill McCall Crew 143 3,200 1996 Owned
Marilyn McCall Crew 143 3,200 1997 Owned
Caleb McCall Crew 145 3,250 1985 Owned
Paula McCall Crew 145 3,250 1984 Owned
Tim McCall Crew 145 3,400 1991 Owned
Adam McCall Crew 145 3,500 1994 Owned
Carol Ann McCall Crew 145 3,500 1997 Owned
Freda McCall Crew 145 3,500 1996 Owned
Susan F McCall Crew 145 3,500 1999 Owned
Jan F Crew 147 3,500 1995 Owned
Sharon F Crew 148 3,500 1996 Owned
Miss Darlene Crew 150 3,500 1998 BB-in
Miss Vickie Crew 150 3,500 1998 Owned
Pelican Glory Crew 151 4,400 1998 JV
Pelican Pride Crew 151 5,600 1999 JV
Pelican Venture Crew 151 5,600 1999 JV
Pelican Vision Crew 151 6,120 1999 JV
Blair McCall Crew 155 3,250 1987 Owned
Pelican Challenge Crew 155 4,000 1998 JV
Aaron McCall Crew 155 4,080 1988 Owned
Linda F. Crew 155 6,750 2001 Owned
Annabeth McCall Crew 160 4,080 1989 Owned
Ashley Alyse McCall Crew 160 4,080 1991 Owned
Billy McCall Crew 160 4,080 1990 Owned
Deanne McCall Crew 160 4,080 1991 Owned
Hilda McCall Crew 160 4,080 1997 BB-in
Jered McCall Crew 160 4,080 1990 Owned
Norman McCall Crew 160 4,080 1989 Owned
Sam McCall Crew 160 4,080 1991 Owned
Jason K. McCall Crew 160 6,750 2001 Owned
Victor O. McCall Crew 160 6,750 2000 Owned
Pelican Pursuer Crew 164 9,600 2001 JV
Christine McCall Crew 165 5,400 1998 Owned
Keith G. McCall Crew 165 7,200 2001 JV
Milton R. McCall Crew 165 7,200 2001 Owned
Pelican Champion Crew 165 9,496 2000 JV
Charles F. McCall Crew 170 6,750 2000 Owned
Sara F. McCall Crew 170 6,750 1999 Owned
Doreen McCall Crew 180 8,100 1999 Owned
John B.Martin McCall Crew 180 8,100 1998 Owned
Phillip Alan McCall Crew 180 8,100 1999 Owned
TOTAL CREW 91
Autry G Mini-Supply 126 1,200 1991 Owned
Janson G Mini-Supply 126 1,200 1991 BB-In
John Michael G Mini-Supply 126 1,200 1991 Owned
Jim G Mini-Supply 126 1,440 1999 Owned
Lloyd G Mini-Supply 126 1,440 1999 JV
Louis G. (ex Harry Allen G.) Mini-Supply 130 1,350 1985 JV
Mr. Benny Mini-Supply 135 1,200 1981 Owned
Oaklawn Mini-Supply 135 1,200 1991 BB-in
Joyce Mini-Supply 145 1,200 1995 Owned
Erika Lynn Mini-Supply 145 1,520 1985 Owned
Linda Mini-Supply 145 1,520 1991 Owned
Mickey Gilbert Mini-Supply 145 1,520 1994 Owned
Sea Horse I Mini-Supply 150 1,500 1997 Owned
Sea Horse II Mini-Supply 150 1,500 1997 Owned
Sea Horse III Mini-Supply 150 1,500 1998 Owned
Sea Horse IV Mini-Supply 150 1,500 1998 Owned
Sea Horse V Mini-Supply 150 1,500 1998 Owned
Sea Horse VI Mini-Supply 150 1,500 2000 Owned
Seacor Eagle Mini-Supply 150 1,500 2001 Owned
Seacor Hawk Mini-Supply 150 1,500 2001 Owned
Celeste Elizabeth Mini-Supply 150 1,520 1997 Owned
Dean Andrew Mini-Supply 150 1,520 1998 Owned
Emelie Ann Mini-Supply 150 1,520 1999 Owned
Gary John Mini-Supply 150 1,520 1999 Owned
Harry Joseph Mini-Supply 150 1,520 1999 Owned
Hilton Joseph Mini-Supply 150 1,520 1997 Owned
TOTAL MINI-SUPPLY 26
Ocean Shield Project 189 2,600 1981 JV
Seacor Clipper Project-Freight 254 2,700 1983 Owned
Seacor Surf Project-Geo 150 1,750 1982 Owned
TOTAL OTHER 3
Britannia Harvester Standby 117 2,000 1971 Man-In
Britannia Conquest Standby 117 2,000 1974 Man-In
Britannia Monarch Standby 117 2,000 1973 Man-In
Britannia Warrior Standby 118 2,000 1971 Man-In
Black Watch Standby 118 1,222 1976 Man-In
Putford Sky Standby 120 1,045 1967 Owned
Putford Puffin Standby 134 1,439 1969 Owned
Toisa Teal Standby 139 1,700 1980 Pool
Toisa Widgeon Standby 139 1,700 1981 Pool/Man
Putford Shore Standby 151 1,577 1967 Owned
Putford Guardian Standby 152 1,971 1967 Owned
Nova Standby 157 2,365 1969 Owned
Putford Achates Standby 163 2,365 1976 Owned
Putford Ajax Standby 163 2,365 1976 Owned
Putford Sea Mussel Standby 167 2,465 1974 Owned
Putford Apollo Standby 168 2,309 1975 Owned
Putford Acasta Standby 171 3,351 1972 Owned
Putford Athena Standby 176 6,077 1975 Owned
Putford Artemis Standby 177 3,520 1975 Owned
Putford Achilles Standby 178 4,140 1972 Owned
Typhoon Standby 180 2,250 1976 Owned
Toisa Petrel Standby 180 2,250 1977 Pool/Man
Toisa Puffin Standby 180 2,260 1979 Pool/Man
Putford Viking Standby 183 4,733 1976 JV
Toisa Plover Standby 185 2,250 1983 Pool/Man
Putford Trader Standby 189 4,000 1976 Owned
Putford Rover Standby 191 7,655 1981 Owned
Putford Worker Standby 200 3,158 1975 Owned
Putford Aries Standby 202 4,800 1977 Owned
Pearl Standby 215 6,166 1985 Owned
TOTAL SBSV 30
Cameron Supply 166 1,800 1981 Owned
Isla Clarion Supply 166 1,800 1982 JV
Isla de Lobos Supply 166 1,800 1978 JV
Seacor Anna Supply 166 1,800 1980 Owned
Marmex I Supply 166 2,120 1979 JV
Marmex III Supply 166 2,120 1980 JV
Clay Ella Supply 167 2,400 2001 Owned
Jean Gilbert Supply 167 2,400 2000 Owned
Golfo de Mexico Supply 178 n.a. 1971 JV
Dorado Supply 180 1,860 1982 Owned
Smit-Lloyd 55 Supply 186 5,331 1988 Owned
Astro Badejo Supply 187 2,400 1989 JV
Seacor Sabre Supply 194 2,500 1998 BB-in
Seacor Spirit Supply 197 3,900 1998 Owned
Seacor Conquest Supply 204 4,200 1999 Owned
Stirling Dee Supply 212 5,600 1985 Owned
Stirling Esk Supply 214 5,600 1986 Owned
Seacor Fortitude (ex BO30) Supply 217 3,600 1979 Owned
Seacor Freedom (ex BO29) Supply 217 3,600 1980 Owned
Discovery Island Supply 220 3,000 1991 BB-In
Sun Island (ex BO26) Supply 220 3,000 1990 BB-in
Avery Island Supply 220 3,900 1991 BB-in
Galaxie Supply 220 3,900 1997 BB-in
Seacor Alcina Supply 220 3,900 1998 Owned
Stirling Vega Supply 223 5,080 1983 Owned
Stirling Altair Supply 224 5,000 1985 Owned
Stirling Capella Supply 226 5,080 1983 Owned
Stirling Pegasus Supply 226 6,610 1992 Owned
Smit-Lloyd Fame Supply 235 5,440 1995 Owned
Smit-Lloyd Fortune Supply 235 5,440 1995 Owned
Seacor Frontier Supply 248 3,600 1981 BB-in
Seacor Glory Supply 251 5,000 1999 Owned
Stirling Aquarius Supply 269 6,600 1991 Owned
Stirling Spey Supply 272 6,596 1999 Owned
Stirling Tay Supply 272 6,596 1998 Owned
Stirling Clyde Supply 272 6,600 1996 Man-In
Stirling Forth Supply 272 6,600 1996 Man-In
TOTAL SUPPLY 37
Marmex VII Towing 125 4,460 1977 JV
Coral Fish Towing 149 3,200 1981 Owned
Laurel Towing 180 4,000 1974 JV
Lingue Towing 180 4,000 1974 JV
Luma Towing 180 4,000 1974 JV
Ocean Suez Towing 180 3,600 1975 JV
Isla Cozumel Towing 185 3,000 1978 JV
Isla del Carmen Towing 185 3,000 1978 JV
Isla Tiburon Towing 185 3,000 1978 JV
Long Island Towing 185 3,000 1978 JV
Isla Coronado Towing 185 3,900 1982 JV
Isla Montague (ex Orca) Towing 185 3,900 1982 JV
Narwhal Towing 185 3,900 1982 Owned
Beryl Fish Towing 187 4,350 1983 Owned
Pearl Fish Towing 187 4,350 1984 Owned
Ocean Aswan Towing 188 4,500 1982 JV
Ocean Luxor Towing 188 4,500 1983 JV
Mako (ex SL 26) Towing 188 4,500 1982 Owned
Moray (ex SL 31) Towing 188 4,500 1983 Owned
Smit-Lloyd 25 Towing 188 4,500 1982 Owned
Smit-Lloyd 27 Towing 188 4,500 1982 Owned
Smit-Lloyd 28 Towing 188 4,500 1983 Owned
Smit-Lloyd 32 Towing 188 4,500 1983 Owned
Smit-Lloyd 33 Towing 188 4,500 1984 Owned
Ocean Dirk Towing 189 4,200 1981 JV
Ocean Drum Towing 189 4,200 1982 JV
San Miguel Towing 190 4,400 1999 Owned
Santa Cruz Towing 190 4,400 1999 Owned
Smit-Lloyd 57 Towing 190 5,331 1987 Owned
Isla Pelicano (ex Seacor Louisiana) Towing 195 6,140 1984 JV
Seacor Texas Towing 195 6,140 1984 Owned
Smit-Lloyd Matsas 1 Towing 196 3,000 1965 JV
Smit-Lloyd Matsas 2 Towing 196 3,000 1966 JV
Seacor Rebel Towing 198 3,900 1983 BB-in
Parrot Fish Towing 199 5,300 1983 Owned
Maria Corina Towing 200 5,226 1998 Owned
Isla Guadalupe (ex Cynthia Marie) Towing 200 5,300 1998 JV
Seacor Explorer Towing 200 5,300 2001 BB-in
Seacor Navigator Towing 200 5,300 2001 Owned
Seacor Argosy Towing 200 5,300 1998 Owned
Seacor Power Towing 214 6,140 1983 Owned
Seacor Yankee Towing 227 3,900 1982 BB-in
TOTAL TOWING 42
Edison G Utility 96 680 1982 Owned
Jimmie G Utility 96 680 1982 Owned
Laurie G Utility 96 680 1979 Owned
Adeline Utility 96 900 1982 Owned
Sterling Utility 96 900 1982 Owned
Mary Diane McCall Utility 110 800 1981 Owned
Sallie McCall Utility 110 800 1981 Owned
Davenport Utility 110 1,000 1980 Owned
Lockhart Utility 110 1,000 1981 Owned
Luckland Utility 110 1,000 1977 Owned
Gladys McCall Utility 110 1,100 1974 Owned
Alex G Utility 110 1,200 1979 Owned
Allie G Utility 110 1,200 1978 Owned
Angela G Utility 110 1,200 1981 Owned
Anna G Utility 110 1,200 1978 Owned
Annette G Utility 110 1,200 1980 Owned
Austin G Utility 110 1,200 1979 Owned
Avalon Utility 110 1,200 1979 Owned
Avoca Utility 110 1,200 1981 Owned
Bernie G Utility 110 1,200 1981 Owned
Betty G Utility 110 1,200 1979 Owned
Boy Blue Utility 110 1,200 1980 Owned
Celestine G Utility 110 1,200 1981 Owned
Columbia G Utility 110 1,200 1979 Owned
Dixie Utility 110 1,200 1980 Owned
Edith G Utility 110 1,200 1980 Owned
Eric G Utility 110 1,200 1979 Owned
Glenda G Utility 110 1,200 1982 Owned
Jackie G Utility 110 1,200 1979 Owned
Jeremy G Utility 110 1,200 1981 Owned
Jerry G Utility 110 1,200 1979 Owned
Joseph G Utility 110 1,200 1978 Owned
Keith G Utility 110 1,200 1977 Owned
Levert G Utility 110 1,200 1978 Owned
Lynda G Utility 110 1,200 1979 Owned
Margaret G Utility 110 1,200 1978 Owned
Mark G Utility 110 1,200 1978 Owned
Merttie G Utility 110 1,200 1978 Owned
Miriam G Utility 110 1,200 1979 Owned
Mr. Lin Utility 110 1,200 1981 Owned
Myrtle Ann G Utility 110 1,200 1982 Owned
Ramona G Utility 110 1,200 1983 Owned
Ron Paul Utility 110 1,200 1981 Owned
Sean G Utility 110 1,200 1980 Owned
Shelley G Utility 110 1,200 1980 Owned
Shirley G Utility 110 1,200 1980 Owned
Sorolta Marie Utility 110 1,200 1981 Owned
Tami G Utility 110 1,200 1982 Owned
Warren G Utility 110 1,200 1977 Owned
Weston G Utility 110 1,200 1981 Owned
Tom McCall Utility 110 1,400 1981 Owned
Adam J. Utility 118 1,200 1981 Owned
Artamay Utility 118 1,200 1981 Owned
Idlewild Utility 120 1,200 1978 Owned
Marianne V (ex Lagonda) Utility 120 1,200 1978 JV
Mister Gil Utility 120 1,200 1978 Owned
Mr. Thomas Utility 120 1,200 1978 Owned
Philocles Utility 120 1,200 1982 Owned
Union Explorer Utility 120 1,300 1982 Owned
Deborah McCall Utility 120 1,400 1981 Owned
Joyce McCall Utility 120 1,400 1977 Owned
Brian Paul Utility 125 1,200 1979 Owned
Cecelia C Utility 125 1,200 1979 Owned
Marmex IV Utility 125 1,200 1981 JV
Mr. David Utility 125 1,200 1981 Owned
TOTAL UTILITY 65
TOTAL OF ALL VESSELS (INCLUDING JVS & BAREBOATS): 325
- ------------------------------------------------- ---
SCHEDULE D
----------
EXISTING LIENS
--------------
SECURED OBLIGATIONS COLLATERAL
- ------------------- ----------
GBP 15,255,700 Ex-Stirling Stockholders due
May 4, 2002 Standby L/C GBP 15,255,700
$12,131,883 Caterpillar Financial - debt assumed in
acquisition of Rincon vessels M/V San Miguel
M/V Sant Cruz
$120,936 Southwest Bank - debt assumed in SCF
acquisition 1st Preferred Ship Mortgage
covering 11 barges
$209,455 Liberty: Concord Various Equipment
$116,039 Liberty: Hibernia Collateral Loans All Accounts & General
Intangibles
SCHEDULE E
----------
EXISTING INDEBTEDNESS (1)
-------------------------
SECURED DEBT 12/31/2001
- ------------ ----------
Ex-Stirling Stockholders due 5/14/02 (2) 21,357,980
Caterpillar Financial - debt assumed in acquisition of Rincon vessels 12,131,883
Southwest Bank - debt assumed in SCF acquisition 120,936
Liberty: Concord 209,455
Liberty: Hibernia Collateral Loans 116,039
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL SECURED DEBT 33,936,293
UNSECURED DEBT
- --------------
5 3/8% Convertible Subordinated Notes due 2006, interest
payable semi-annualy commencing 1997 46,320,000
7.2% Senior Notes Due 2009, interest payable semi-annually 147,500,000
5.467% Subordinated Promissory Notes due SMIT in 2004,
interest payable quarterly commencing March 1999 23,200,000
Ex-Putford Stockholders 10,920,000
DnB Credit Facility 30,000,000
Liberty: Hibernia 346,832
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL UNSECURED DEBT 258,286,832
Less:
Debt discount, 7.2% Senior Notes Due 2009 (398,489)
Debt discount, Putford (1,359,693)
Debt discount, Stirling (66,005)
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL DEBT 290,398,938
Less: (Portion Due Within One Year)
Caterpillar Financial - debt assumed in acquisition of Rincon vessels (12,131,883)
Ex-Stirling Stockholders (21,357,980)
Liberty: Hibernia (28,579)
Liberty: Concord (75,639)
Liberty: Hibernia Collateral Loans (48,971)
Southwest Bank - debt assumed in SCF acquisition (80,624)
Debt discount, Stirling 66,005
- -----------------------------------------------------------------------------------------------------------------------------------
CURRENT PORTION OF LONG-TERM DEBT (33,657,671)
TOTAL LONG-TERM DEBT 256,741,267
(1) Preliminary not Audited Numbers
(2) This debt is secured with a standby letter of credit issued under the
existing credit facility due 6/14/02
SCHEDULE F
----------
EXISTING LETTERS OF CREDIT
--------------------------
LETTERS OF CREDIT 12/31/2001
- ----------------- ----------
DEN NORSKE BANK ASA GBP 15,255,700
Used in the acquisition of Stirling Shipping,
expires on 6/14/02
EXHIBIT 1
PROMISSORY NOTE
____________, 2002
New York, New York
FOR VALUE RECEIVED, the undersigned SEACOR SMIT INC., a
corporation incorporated under the laws of the State of Delaware (the
"Borrower"), hereby promises to pay to the order of [INSERT NAME OF LENDER],
[INSERT JURISDICTION OF ORGANIZATION OF LENDER AND TYPE OF ENTITY] ("_____"),
with offices at [INSERT ADDRESS OF LENDER], the principal sum of [INSERT AMOUNT
OF COMMITMENT OF LENDER] United States Dollars or the equivalent thereof where a
portion of the Credit Facility is in a Foreign Currency or Currencies (as the
same may be reduced from time to time pursuant to Sections 5.3 of the Credit
Agreement hereinafter defined) or, if less, the aggregate unpaid principal
amount of the Advances from time to time outstanding made by ___________ to the
Borrower pursuant to the Credit Agreement dated February 5, 2002, by and among,
the Borrower, the Banks and Financial Institutions set out in Schedule A
thereto, Fleet National Bank, as syndication agent, Den norske Bank ASA as
Administrative agent , Nordea, acting through Nordea Bank Finland Plc, New York
Branch, as documentation agent, and The Governor and Company of the Bank of
Scotland, as co-agent (as amended, restated, modified or supplemented from time
to time, the "Credit Agreement"). The Borrower shall repay all outstanding
Advances on the Termination Date. This promissory note may be prepaid on such
terms as provided in the Credit Agreement. The Borrower shall repay or prepay
each Advance (or portion thereof), together with interest accrued thereon, in
the same currency as that in which such Advance was denominated when it was
originally advanced by the Lenders.
Words and expressions used herein and defined in the Credit
Agreement shall have the same meanings herein as
therein defined.
The Advances shall bear interest for the period(s) of one
(1), two (2), three (3), six (6), nine (9) or twelve
(12) months (or such longer period as may be agreed by the Lenders), as selected
by the Borrower pursuant to Section 6.3 of the Credit Agreement, at the rate per
annum which is equal to the aggregate of, (a) LIBOR plus (b) the Margin, as
provided in Section 6.1 of the Credit Agreement. Any payments under the Credit
Agreement or hereunder not paid when due, whether by acceleration or otherwise,
shall bear interest thereafter at a rate per annum equal to two hundred (200)
basis points over the Applicable Rate then in effect with respect thereto at the
time of such default.
All payments of principal and interest hereunder are payable
in lawful money of the United States of America, the United Kingdom, The
Netherlands, France, or Singapore, the Euro or any other currency freely
convertible into U.S. Dollars, as the case may be, to the Administrative Agent
at its offices located at 200 Park Avenue, New York, New York or to such other
branch of the Administrative Agent as the Administrative Agent may direct, in
immediately available same day funds.
The Administrative Agent may endorse the amount, currency and
the date of the making of each Advance and any payment or prepayment thereof on
the grid annexed hereto and made a part hereof, which endorsement shall
constitute prima facie evidence of the accuracy of the information so endorsed;
provided, however, that any failure to endorse such information on such grid
shall not in any manner affect the obligation of the Borrower to make payment of
principal and interest in accordance with the terms of this promissory note.
If this promissory note or any payment required hereunder
becomes due and payable on a day which is not a Banking Day the due date thereof
shall be extended until the next following Banking Day unless such next
following Banking Day falls in the following calendar month, in which case, this
promissory note or any payment required hereunder shall be due on the
immediately preceding Banking Day. Any interest shall be payable during any such
extension at the rate applicable immediately prior thereto.
This promissory note is one of the Notes referred to in, and
is entitled to the security and benefits of, the Credit Agreement. Upon the
occurrence of any Event of Default under the Credit Agreement, the principal
hereof and accrued interest hereon may be declared to be and shall thereupon
become, forthwith, due and payable.
Presentment, demand, protest and notice of dishonor of this
promissory note or any other notice of any kind are hereby expressly waived.
THE UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO ON ANY MATTER
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS PROMISSORY NOTE.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has executed and delivered
this Promissory Note on the date and year first above written.
SEACOR SMIT INC.
By:
---------------------------------
Name:
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
====================== ============================ ==================================== ========================== ===============
Amount and
Currency of Amount of Principal Outstanding Notation
Date Each Advance Paid or Repaid Balance Made By
====================== ============================ ==================================== ========================== ===============
EXHIBIT 2
FORM OF ADMINISTRATIVE QUESTIONNAIRE
LENDER ADMINISTRATIVE QUESTIONNAIRE
================================================================================
At closing, ______________________________ will assume the duties and functions
of Administrative Agent for the Facility. This questionnaire should be completed
in order to facilitate closing and ongoing communication.
FAX ALONG WITH COMMITMENT LETTER TO:
- -----------------------------------------------------------------------------------------------------------------------------------
BORROWER INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
BORROWER NAME: SEACOR SMIT Inc.
-------------------------------------------------------------------------------------------
AMOUNT AND FACILITY: $200,000,000 Revolving Credit Facility
-------------------------------------------------------------------------------------------
BORROWER TAX ID(S)#: 13-3542736
-------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
PARTICIPANT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
LEGAL NAME OF LENDER FOR SIGNATURE PAGE:
----------------------------------------------------------
NAME OF LENDER FOR ANY EVENTUAL TOMBSTONE:
----------------------------------------------------------
INSTITUTION TAX ID#:
----------------------------------------------------------
GENERAL INFORMATION DOMESTIC LENDING OFFICE: EURODOLLAR LENDING OFFICE:
Institution Name:
Street Address:
City/State/Zip:
Country:
CREDIT CONTACT OPERATIONS CONTACT Legal Counsel
-------------- ------------------ -------------
PRIMARY CONTACT:
--------------------------------- ------------------------------ ---------------------------------
TITLE:
--------------------------------- ------------------------------ ---------------------------------
STREET ADDRESS:
--------------------------------- ------------------------------ ---------------------------------
CITY/STATE/ZIP:
--------------------------------- ------------------------------ ---------------------------------
COUNTRY:
--------------------------------- ------------------------------ ---------------------------------
TELEPHONE #:
--------------------------------- ------------------------------ ---------------------------------
FAX #:
--------------------------------- ------------------------------ ---------------------------------
--------------------------------- ------------------------------ ---------------------------------
EMAIL ADDRESS:
--------------------------------- ------------------------------ ---------------------------------
SECONDARY CONTACT:
--------------------------------- ------------------------------ ---------------------------------
TITLE:
--------------------------------- ------------------------------ ---------------------------------
STREET ADDRESS:
--------------------------------- ------------------------------ ---------------------------------
CITY/STATE/ZIP:
--------------------------------- ------------------------------ ---------------------------------
COUNTRY:
--------------------------------- ------------------------------ ---------------------------------
TELEPHONE #:
--------------------------------- ------------------------------ ---------------------------------
FAX #:
--------------------------------- ------------------------------ ---------------------------------
EMAIL ADDRESS:
--------------------------------- ------------------------------ ---------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
WIRE ROUTING INSTRUCTIONS
- -----------------------------------------------------------------------------------------------------------------------------------
Name of Lender:
-------------------------------------------------------------------------------------------------
ABA Number:
-------------------------------------------------------------------------------------------------
City/State:
-------------------------------------------------------------------------------------------------
Country:
-------------------------------------------------------------------------------------------------
Account Name:
-------------------------------------------------------------------------------------------------
Account Number:
-------------------------------------------------------------------------------------------------
Attention:
-------------------------------------------------------------------------------------------------
Reference:
-------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
MAILING ADDRESSES
- -----------------------------------------------------------------------------------------------------------------------------------
CREDIT AGREEMENT DELIVERY FINANCIAL INFORMATION DELIVERY
------------------------- ------------------------------
NAME:
---------------------------------------------- ---------------------------------------------------
TITLE:
---------------------------------------------- ---------------------------------------------------
STREET ADDRESS:
---------------------------------------------- ---------------------------------------------------
CITY/STATE/ZIP:
---------------------------------------------- ---------------------------------------------------
COUNTRY:
---------------------------------------------- ---------------------------------------------------
TELEPHONE #:
---------------------------------------------- ---------------------------------------------------
FAX #:
---------------------------------------------- ---------------------------------------------------
EMAIL ADDRESS:
---------------------------------------------- ---------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
TAX WITHHOLDING
- -----------------------------------------------------------------------------------------------------------------------------------
Non-Resident Alien: YES, FORM [W-8 BEN/W--8 ECI] ATTACHED.
----------
Tax ID Number: FORM W9 ATTACHED.
----------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
ADMINISTRATIVE AGENT INFORMATION
- -----------------------------------------------------------------------------------------------------------------------------------
CREDIT CONTACT CUSTOMER SERVICE (LOAN ADMINISTRATION)
- -----------------------------------------------------------------------------------------------------------------------------------
NAME:
Title:
STREET ADDRESS:
CITY/STATE/ZIP:
COUNTRY:
TELEPHONE #:
FAX #:
EMAIL ADDRESS:
- -----------------------------------------------------------------------------------------------------------------------------------
ADMINISTRATIVE AGENT WIRE INSTRUCTIONS
- -----------------------------------------------------------------------------------------------------------------------------------
Bank:
----------------------------------------------------------------------------------------------
ABA Number:
----------------------------------------------------------------------------------------------
F/O:
----------------------------------------------------------------------------------------------
Account #:
----------------------------------------------------------------------------------------------
Reference:
----------------------------------------------------------------------------------------------
Attn:
----------------------------------------------------------------------------------------------
Completed By
- -------------------
Signature
EXHIBIT 3
FORM OF
DRAWDOWN NOTICE
[Date]
Den norske Bank ASA
200 Park Avenue
New York, New York 10016
Drawdown Notice
---------------
Pursuant to Section 3.3 of the Revolving Credit Facility
Agreement dated as of February 5, 2002 (the "Credit
Agreement") made by and among (1) ourselves as the "Borrower", (2) the banks and
financial institutions whose names and addresses are set out in Schedule A
thereto (together with any assignee pursuant to Section 11 of the Credit
Agreement) (collectively the "Lenders"), (3) Fleet National Bank, as syndication
agent , (4) Nordea, acting through Nordea Bank Finland Plc, New York Branch, as
documentation agent , (5) The Governor and Company of the Bank of Scotland, as
co-agent and (6) Den norske Bank ASA, as administrative agent (the
"Administrative Agent"), the undersigned hereby gives the Administrative Agent
notice of a drawdown of an Advance. All terms used herein, shall have the
meanings given thereto in the Credit Agreement.
Drawdown Date:
Amount:
Currency:
Purpose:
Initial Interest Period(s):
Disbursement Instructions:
The undersigned hereby represents and warrants that (a) the
representations and warranties stated in Section 2 of the Credit Agreement
(updated mutatis mutandis) are true and correct on the date hereof and will be
true and correct on the Drawdown Date specified above as if made on such date,
except for changes in (i) the Vessels owned, (ii) recorded liens relating
thereto or (iii) Liens in respect of Secured Debt, and (b) no Event of Default
has occurred and is continuing or will have occurred and be continuing on the
Drawdown Date, and no event has occurred or is continuing which, with the giving
of notice or lapse of time, or both, would constitute an Event of Default.
In the event that the Lenders shall not be obliged under
the terms of the Credit Agreement to make the above requested Advance
(including, without limitation any such failure resulting from the failure of
the Borrower to satisfy a condition precedent set forth in Section 4 of the
Credit Agreement)1, the Borrower shall indemnify and hold fully harmless the
Lenders or any of them, against any losses which the Lenders or any of them, may
sustain as a result of borrowing or agreeing to borrow funds to meet the
requested drawdown and the certificate of the relevant Lender shall, absent
manifest error, be conclusive and binding on the Borrower as to the extent of
any such losses.
This Drawdown Notice is effective upon receipt by you and
shall be irrevocable.
SEACOR SMIT INC.
By:
------------------------
Name:
Title:
- --------
1 Insert the following in the initial Drawdown Notice -- "or the failure
of the Credit Agreement to become effective"
EXHIBIT 4
FORM OF
LETTER OF CREDIT REQUEST
No. 2 Dated: [Date]
-------
Den norske Bank ASA
New York Branch
200 Park Avenue
New York, NY 10016-0396
Attn.:
-------------------------------
Ladies and Gentlemen.
The undersigned, SEACOR SMIT Inc., refers to the Revolving Credit
Facility Agreement, dated February 5, 2002 (as amended, modified or supplemented
from time to time, the "Credit Agreement", the capitalized terms defined therein
being used herein as therein defined), made by and among (1) the undersigned, as
the "Borrower", (2) the banks and financial institutions whose names and
addresses are set out in Schedule A thereto (together with any assignee pursuant
to Section 11 of the Credit Agreement) (collectively the "Lenders"), (3) Fleet
National Bank, as syndication agent , (4) Den norske Bank ASA, as administrative
agent, (5) Nordea, acting through Nordea Bank Finland Plc, New York Branch, as
documentation agent and (6) The Governor and Company of the Bank of Scotland, as
co-agent.
The undersigned hereby requests that the Letter of Credit Issuer
issue on behalf and for the account of the undersigned a Letter of Credit on
________, ____ (the "Date of Issuance") in the aggregate amount of
_____________. The requested Letter of Credit shall be denominated in ________.
The beneficiary of the requested Letter of Credit will be ___________
and such Letter of Credit will be in support of ____________3 and will have a
stated termination date of ________, ____.
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be on the Date of Issuance:
(a) the representations and warranties contained in Section 2 of the
Credit Agreement are and will be true and correct in all material
respects, before and after giving effect to the issuance of the
Letter of Credit requested hereby, as though made on the Date of
- ----------
2 Letter of Credit Request Number.
3 Insert description of the L/C Supportable Obligations to which this letter of
Credit Request relates.
Issuance, unless stated to relate to a specific earlier date, in
which case such representations and warranties shall be true and
correct in all material respects as of such earlier date, except for
changes in (i) the Vessels owned, (ii) recorded liens relating
thereto or (iii) Liens in respect of Secured Debt; and
(b) no Event of Default has occurred and is continuing, or would result
after giving effect to the issuance of the Letter of Credit requested
hereby.
Copies of all documentation, if any, with respect to the supported transaction
are attached hereto.
SEACOR SMIT Inc.
By:
--------------------------
Name:
Title:
2
EXHIBIT 5
FORM OF COMPLIANCE CERTIFICATE
[Date]
Den norske Bank ASA, NY Branch
200 Park Avenue, 31st Floor
New York, NY 10166
Enclosed, please find the Compliance Certificate required to be
delivered under the Credit Facility Agreement, dated February _____, 2002
relating to our $200,000,000 credit facility. The following information has been
assembled from the attached financial statements, dated [DATE]. The brief
section descriptions outlined below serves to summarize the full text and should
there be any conflict in the interpretation of the text used herein and in the
Credit Facility Agreement, the latter shall govern ('000' have been omitted in
all dollar amounts below).
Definition: EBITDA:
Means on a consolidated basis, the aggregate, to be measured on a trailing
twelve (12) month basis, of: (i) operating income (before deductions for
interest, taxes, depreciation and amortization), (ii) interest income and (iii)
"Equity in Net Earnings of Fifty Percent (50%) or Less Owned Companies" (as such
term is used in the Borrower's published financial reports)
4th last qtr. 3rd last qtr 2nd last qtr Last qtr Last 12 mos.
Operating Income (as defined above) $ o $ o $ o $ o $ o
plus interest income o o o o o
plus Equity in Net Earnings of o o o o o
50% or Less Owned Companies. o o o o o
o o o o o
---------------
EBITDA $ o o $ o $ o $ o
---------------
Definition: Funded Debt:
Means on a consolidated basis, the sum of (i) indebtedness for borrowed money,
all obligations evidenced by bonds, debentures, notes, or similar instruments,
and purchase money obligations which, in accordance with GAAP, would be shown on
the consolidated balance sheet as a liability, (ii) all obligations arising
under letters of credit, (iii) all obligations as lessee under leases, which
have been, in accordance with GAAP, recorded as capitalized lease obligations,
(iv) guarantees of non-consolidated entity obligations but excluding (v)
indebtedness which is consolidated in the Borrower's published financial
statements in accordance with GAAP but which represents a minority interest
holders' share of such indebtedness unless such minority interest holders' share
has been guaranteed by the Borrower or a Subsidiary.
Committed Outstanding
Amount Amount
US$200 MM Revolving Credit Facility o o
Capitalized Leases o o
Smit Note o o
Other Debt o o
L/C obligations (other than DnB) o o
Guarantee obligations o o
Long-Term Bonds (12 yrs.) o o
Subordinated Convertible Debt o o
Less Debt Discount o o
Less Minority Related Debt o o
------------------
FUNDED DEBT $ o
------------------
2
Section 6.2 The Applicable Margin:
- ----------------------------------
Shall vary based upon (a) the Borrower's credit rating as determined by S & P
and Moody's, or (b) if the Borrower is no longer rated, the ratio of the
Borrower's consolidated Funded Debt to the consolidated EBITDA for the Borrower,
as follows:
Credit
Funded Debt (1) / EBITDA (2) Rating Applicable Margin
- ---------------------------- ------ -----------------
less than or equal to 0.75 A-/A3 65 bp
greater than 0.75, less than or equal to 1.5 BBB+/Baa1 75 bp
greater than 1.50, less than or equal to 2.25 BBB/Baa2 85 bp
greater than 2.25, less than or equal to 3.0 BBB-/Baa3 100 bp
greater than 3.0, less than or equal to 4.0 BB+/Ba1 125 bp
Greater than 4.0 >BB+/Ba1 150 bp
For purposes of determining the Applicable Margin, in the case of a split rating
in the respective credit ratings of the Borrower by Moody's and S&P the higher
of the two ratings shall apply. In the event of a split rating of more than one
level, the rating which is one level above the lower rating shall apply. The
Applicable Margin shall be determined by the Administrative Agent quarterly
(based upon the latest 10Q or 10K report and this Compliance Certificate). The
newly determined Applicable Margin shall be effective on the last day of the
month following the month during which such report and certificate were
delivered to the Administrative Agent.
Nota Bene: (1) Does not include Subordinated Debt, (2) last 12 months
Applicable Funded Debt: $ o [A]
- -----------------------
Applicable EBITDA: o [B]
- ------------------
Applicable Ratio: o [A/B]
- -----------------
Applicable Rating: o
- ------------------
(a) S&P rating
(b) Moody's rating
Applicable Margin (1) : o
- ------------------------
Current Margin: o
- ---------------
Nota Bene: (1) The new margin shall be effective as of the last day of the month
following the month of this compliance certificate.
3
Section 14.1 Commitment Fee:
- ----------------------------
Shall vary based upon (a) the Borrower's credit rating as determined by S&P and
Moody's, or (b) if the Borrower is no longer rated, the ratio of the Borrower's
consolidated Fund Debt to the Consolidated EBITDA for the Borrower, as follows:
Credit
Funded Debt (1) / EBITDA (2) Rating Commitment Fee Rate
- ---------------------------- ------ -------------------
less than or equal to 0.75 A-/A3 17.5 bp
greater than 0.75, less than or equal to 1.5 BBB+/Ba1 20.0 bp
greater than 1.50, less than or equal to 2.25 BBB/Baa2 25.0 bp
greater than 2.25, less than or equal to 3.0 BBB-/Baa3 32.5 bp
greater than 3.0, less than or equal to 4.0 BB+/Ba1 40.0 bp
Greater than 4.0 >BB+/Ba1 65.0 bp
For purposes of determining the applicable Commitment Fee Rate(s), in the case
of a split rating in the respective credit ratings of the Borrower by Moody's
and S&P the higher of the two ratings shall apply. In the event of a split
rating of more than one level, the rating which is one level above the lower
rating shall apply. The applicable Commitment Fee Rate(s) shall be determined by
the Administrative Agent quarterly (based upon the latest 10Q report or 10K
report and this Compliance Certificate). The newly determined Commitment Fee
Rate(s) shall be effective on the on the last day of the month following the
month during which such report was delivered to the Administrative. Agent.
Nota Bene: (1) Does not include Subordinated Debt, (2) last 12 months.
Applicable Ratio: o [A/B above in 6.2]
- -----------------
Applicable Rating: o
- ------------------
(a) S&P rating
(b) Moody's rating
Previous Commitment Rate: o bp
- -------------------------
New Commitment Rate: o
- --------------------
Nota Bene: The new margin shall be effective as of the last day of the month
following the month of this compliance certificate.
4
COMPLIANCE
Section 3.6 Foreign Currency Advances - Max. 50% of Amount: (YES/NO/N.A.)
- ----------------------------------------------------------- -------------
British Pound Advances: o [GBP]
- -----------------------
o. [$ exchange rate]
o [$ equivalent]
EuroAdvances: o [(euro)]
- -------------
o. [$ exchange rate]
o [$ equivalent]
Singapore Dollar Advances: o [SGD]
- ---------------------------
o [$ exchange rate]
o [$ equivalent]
Total Foreign Currency
Advances (in $ terms): o [A]
Maximum Foreign
Currency Advances
Allowed $ o [B][50% of Facility]
Repayment required: None [A - B]
Section 4.1(a)(iv) Board of Directors and Section 9.1(l)
- --------------------------------------------------------
Change of Control of SEACOR SMIT Inc.:
- --------------------------------------
SEACOR SMIT may not suffer any change of control, as defined.
The current members of the Board of Directors are (any change from previous list
to be noted):
5
COMPLIANCE
(YES/NO/N.A.)
-------------
Section 10.1 (a)(v)(a) Annual Financial Statements
- --------------------------------------------------
As soon as available but no later than 90 days after the end of each fiscal o
year as audited by an Acceptable Accounting Firm. Together with a Compliance
Certificate.
Section 10.1 (a)(v)(b) Quarterly Financial Statements
- -----------------------------------------------------
As soon as available but no later than 60 days of the end of o
each fiscal quarter. Together with a Compliance Certificate.
Section 10.1 (a)(xv) Funded Debt / Total Capitalization:
- --------------------------------------------------------
Maximum of 50%. Total Capitalization includes Funded Debt o
and Consolidated Net Worth.
Funded Debt: $ o [A]
CONSOLIDATED NET WORTH: $ o [B]
Total Capitalization: $ o [A+B]
Ratio: o [A/A+B]
Section 10.1 (a)(xvi) Secure Debt / Total Capitalization: o
- ---------------------------------------------------------
Secured Debt: on a consolidated basis, the aggegate of any
Indebtedness secured or collateralized by a Lien
Maximum 20%.
Senior Debt: $ o [A]
Total Capitalization: $ o [B]
Ratio: o [A/B]
6
COMPLIANCE
(YES/NO/N.A.)
-------------
Section 10.1 (a)(xvii) Interest Coverage Ratio:
- -----------------------------------------------
Maintain on a consolidated basis (a) EBITDA ? divided by (b) interest payments
(including interest atributable to capialized leases) made during the four (4)
fiscal quarters preceding the date on which such ratio is determined at ratio of
not less than 3.0 to 1.0.
EBITDA (LAST 12 MONTHS) $ o [A]
INTEREST PAYMENTS (LAST $ o [B]
4 QUARTERS)
INTEREST COVERAGE RATIO: o [A/B]
Section 10.1 (a)(xviii) Consolidated Net Worth: o
- -----------------------------------------------
Must be equal to (a) $600MM during 2002, and
(b) thereafter $600MM plus 50% of the cumulative
net income starting with net income for 2002
Section 10.1(b)(x) Limitations on Investments in Joint Venture o
- --------------------------------------------------------------
Will not make, and will not permit any Subsidiary to make, any Investment in any
Joint Venture except if such Investment does not exceed 30% of the Total
Capitalization, and except as otherwise provided in Section 10.1(b)(a)(xviii)
INVESTMENT $ o [A]
TOTAL CAPITALIZATION $ o [B]
PERCENTAGE OF INVESTMENT o [(A/B) * 100]
TO TOTAL CAPITALIZATION
7
COMPLIANCE
(YES/NO/N.A.)
-------------
Section 10.1(b)(xi) Limitations on Indebtedness
- -----------------------------------------------
Will not incur, and shall procure that the Subsidiaries will not incur,
any Indebtedness, except as otherwise provided in Section o
10.1(b)(xi), and except Indebtedness may be incurred so long
as Seacor is in compliance with Sections 10.1(a)(xv), (xvi), (xvii)
and (xviii); and provided that the aggregate of Subsidiary Funded
Debt of each of the Subsidiaries, when added together, shall not
exceed 30% of the Total Capitalization of the Borrower on a
consolidated basis; provided, further, that when aggregating any
Subsidiary Funded Debt, it is done as provided in Section
10.1(b)(xi)(e)
AGGREGATE SUBSIDIARY $ o [A]
FUNDED DEBT
TOTAL CAPITALIZATION $ o [B]
PERCENTAGE OF AGGREGATE o [(A/B) * 100]
SUBSIDIARY FUNDED DEBT TO
TOTAL CAPITALIZATION
To the best of my knowledge there are currently no outstanding defaults under
the Loan Agreement and the related documentation excerpt as expressly outlined
below:
Very truly yours,
SEACOR SMIT Inc.
By: ____________________
Name:
Title:
8
EXHIBIT 6
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of
_________, _____ between [NAME OF ASSIGNOR], a [BANK/CORPORATION] organized
under the laws of [JURISDICTION OF INCORPORATION OF ASSIGNOR] (the "Assignor"),
and [NAME OF ASSIGNEE], a [BANK/CORPORATION] organized under the laws of
[JURISDICTION OF INCORPORATION OF ASSIGNEE] (the "Assignee"), supplemental to:
(A) that certain Revolving Credit Facility Agreement, dated
as of February 5, 2002 (as amended, restated, modified or
supplemented from time to time, together the "Credit
Agreement"), made by and among (a) the Borrower, (b) the
banks and financial institutions whose names and addresses
are set out in Schedule A thereto (together with their
permitted successors and assigns, the "Lenders"), (c) Fleet
National Bank, as syndication agent, (d) Den norske Bank
ASA, as administrative agent , (e) Nordea, acting through
Nordea Bank Finland Plc, New York Branch, as documentation
agent, and (f) The Governor and Company of the Bank of
Scotland, as co-agent, pursuant to which the Lenders agreed
to make available to the Borrower a reducing revolving
credit facility (the "Credit Facility") in the maximum
principal amount which may be outstanding at any time (in
Advances and/or Letters of Credit) of Two Hundred Million
United States Dollars (US$200,000,000) or the equivalent in
Pounds Sterling, Euros, Singapore Dollars or any
combination thereof; provided, however, that at no time may
Letters of Credit be outstanding in excess of 50% of the
Credit Facility; and
(B) each promissory note made by the Borrower payable to
the order of each Bank dated February 5, 2002
(collectively, the "Notes") evidencing the Advances under
the Credit Agreement.
Except as otherwise defined herein, terms defined in the
Credit Agreement have the same meaning when used herein.
In consideration of the premises and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The Assignor hereby sells, transfers and assigns to the
Assignee o% of the Assignor's right, title and interest in, to and under the:
(a) the Credit Agreement, (b) the Notes (including, without limitation, its
interest in the indebtedness evidenced by the Notes) and (c) the Letters of
Credit. Simultaneously herewith, the Assignee shall pay to the Assignor an
amount equal to the purchase price agreed between them in a separate writing.
2. The Assignee hereby assumes o% of the obligations of the
Assignor under the Credit Agreement and shall hereafter be a "Lender" for all
purposes of the Credit Agreement and the Notes and a "Letter of Credit
Participant" for purposes of the Letters of Credit, the Assignee's Commitment
thereunder being $o in respect of the Credit Facility.
3. The [Assignor] [Assignee] shall pay an administrative
fee of Five Thousand Dollars ($5,000) to the Administrative Agent to reimburse
the Administrative Agent for its cost in processing the assignment and
assumption herein contained.
4. If it is not a U.S. person, the Assignee shall, on or
prior to the date hereof and from time to time thereafter when required by
applicable provisions of the United States Internal Revenue Code, provide the
Borrower with two duly completed copies of Internal Revenue Service Form W- 8BEN
or W-8ECI, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that the Assignee is entitled to benefits under an
income tax treaty to which the United States is a party that exempts withholding
tax on payments under the Credit Agreement and the Notes or certifying that the
income receivable pursuant to the Credit Agreement or the Notes is effectively
connected with the conduct of a trade or business in the United States.
5. The Assignee irrevocably designates and appoints the
Agent as its agent, and irrevocably authorizes the Agent, to take such action on
its behalf and to exercise such powers on its behalf under the Credit Agreement
and under the Notes, each as supplemented hereby, as are delegated to the Agent
by the terms of each thereof, together with such powers as are reasonably
incidental thereto all as provided in Section 16 of the Credit Agreement.
6. The Assignor makes no representation or warranty in
connection with, and shall have no responsibility with respect to, the solvency,
financial condition or statements of the Borrower, or the validity and
enforceability of the obligations of the Borrower in respect of the Credit
Agreement or the Notes. The Assignee acknowledges that it has, independently and
without reliance on the Assignor or the Agent, and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and will continue to be responsible for
making its own independent appraisal of the business, affairs and financial
condition of the Borrower.
7. Every notice or demand under this Agreement shall be in
writing and may be given by telecopy and shall be sent (with a copy to the
Agent) as follows:
If to the Assignor:
[NAME OF ASSIGNOR]
[ADDRESS]
Telecopy No.:
Attention:
2
If to the Assignee
[NAME OF ASSIGNEE]
[ADDRESS]
Telecopy No.:
Attention:
If to the Administrative Agent:
200 Park Avenue
New York, New York 10166-0396
Telecopy No. 212-681-3900
Attention: Nikolai Nachamkin
Any notice sent by telecopy shall be confirmed by letter dispatched as soon as
possible thereafter. The Assignee designates its address given above as its
address for notices pursuant to Section 17.2 of the Credit Agreement.
8. EACH OF THE ASSIGNOR AND THE ASSIGNEE HEREBY WAIVES
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY
HERETO ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT.
9. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10. This Agreement may be executed in several counterparts
with the same effect as if the parties executing such counterparts executed one
agreement as of the date hereof and each counterpart when executed and delivered
shall be deemed to be an original and all of such counterparts together shall
constitute this Agreement.
3
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year
first above written.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: ____________________________ By: ____________________________
Name: Name:
Title: Title:
By: ____________________________ By: ____________________________
Name: Name:
Title: Title:
Consented and Agreed this
_____ day of _________, ____:
SEACOR SMIT INC.
By_________________________
Name:
Title:
DEN NORSKE BANK, ASA,
as Administrative Agent
By_________________________
Name:
Title:
By_________________________
Name:
Title:
4