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Exhibit 10.1
AMERICAN COMMERCIAL LINES LLC
AMERICAN COMMERCIAL LINES HOLDINGS LLC
$535,000,000
Credit Agreement
Dated as of June 30, 1998
Chase Securities Inc.
as Arranger
The Chase Manhattan Bank
as Administrative Agent
[CHASE GRAPHIC]
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Definitions............................................................... 1
SECTION 1.02. Terms Generally........................................................... 19
ARTICLE II
The Credits
SECTION 2.01. Commitments............................................................... 20
SECTION 2.02. Loans..................................................................... 20
SECTION 2.03. Borrowing Procedure....................................................... 21
SECTION 2.04. Evidence of Debt; Repayment of Loans...................................... 22
SECTION 2.05. Fees...................................................................... 22
SECTION 2.06. Interest on Loans......................................................... 23
SECTION 2.07. Default Interest.......................................................... 23
SECTION 2.08. Alternate Rate of Interest................................................ 23
SECTION 2.09. Termination and Reduction of Commitments.................................. 24
SECTION 2.10. Conversion and Continuation of Borrowings................................. 24
SECTION 2.11. Repayment of Term Borrowings.............................................. 25
SECTION 2.12. Optional Prepayment....................................................... 27
SECTION 2.13. Mandatory Prepayments..................................................... 28
SECTION 2.14. Reserve Requirements; Change in Circumstances............................. 29
SECTION 2.15. Change in Legality........................................................ 30
SECTION 2.16. Indemnity................................................................. 31
SECTION 2.17. Pro Rata Treatment........................................................ 31
SECTION 2.18. Sharing of Setoffs........................................................ 31
SECTION 2.19. Payments.................................................................. 32
SECTION 2.20. Taxes..................................................................... 32
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate........................................................ 33
SECTION 2.22. Letters of Credit......................................................... 34
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers...................................................... 37
SECTION 3.02. Authorization............................................................. 37
SECTION 3.03. Enforceability............................................................ 38
SECTION 3.04. Governmental Approvals.................................................... 38
SECTION 3.05. Financial Statements...................................................... 38
SECTION 3.06. No Material Adverse Change................................................ 38
SECTION 3.07. Title to Properties; Possession Under Leases.............................. 38
SECTION 3.08. Subsidiaries.............................................................. 39
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SECTION 3.09. Litigation; Compliance with Laws.......................................... 39
SECTION 3.10. Agreements................................................................ 39
SECTION 3.11. Federal Reserve Regulations............................................... 40
SECTION 3.12. Investment Company Act; Public Utility Holding Company Act................ 40
SECTION 3.13. Use of Proceeds........................................................... 40
SECTION 3.14. Tax Returns............................................................... 40
SECTION 3.15. No Material Misstatements................................................. 40
SECTION 3.16. ERISA..................................................................... 40
SECTION 3.17. Environmental Matters..................................................... 41
SECTION 3.18. Insurance................................................................. 41
SECTION 3.19. Security Documents........................................................ 41
SECTION 3.20. Location of Real Property, Leased Premises and Tugs and Barges............ 42
SECTION 3.21. Labor Matters............................................................. 42
SECTION 3.22. Solvency.................................................................. 43
SECTION 3.23. Year 2000................................................................. 43
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events......................................................... 43
SECTION 4.02. First Credit Event........................................................ 44
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties...................................... 47
SECTION 5.02. Insurance................................................................. 48
SECTION 5.03. Obligations and Taxes..................................................... 49
SECTION 5.04 Financial Statements, Reports, etc........................................ 49
SECTION 5.05. Litigation and Other Notices.............................................. 50
SECTION 5.06. Maintaining Records; Access to Properties and Inspections................. 50
SECTION 5.07. Use of Proceeds........................................................... 50
SECTION 5.08. Compliance with Environmental Laws........................................ 50
SECTION 5.09. Preparation of Environmental Reports...................................... 51
SECTION 5.10. Further Assurances........................................................ 51
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.............................................................. 52
SECTION 6.02. Liens..................................................................... 53
SECTION 6.03. Sale and Lease-Back Transactions.......................................... 54
SECTION 6.04. Investments, Loans and Advances........................................... 54
SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions................. 55
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends........................................... 56
SECTION 6.07. Transactions with Affiliates.............................................. 57
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SECTION 6.08. Business of Holdings, Borrower and Subsidiaries........................... 57
SECTION 6.09. Other Indebtedness and Agreements......................................... 57
SECTION 6.10. Capital Expenditures...................................................... 57
SECTION 6.11. Consolidated Leverage Ratio............................................... 58
SECTION 6.12. Consolidated Interest Coverage Ratio...................................... 58
SECTION 6.13. Fiscal Year............................................................... 58
ARTICLE VII
Events of Default......................................................... 59
ARTICLE VIII
The Administrative Agent and the Collateral Agent......................... 61
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices................................................................... 62
SECTION 9.02. Survival of Agreement..................................................... 63
SECTION 9.03. Binding Effect............................................................ 63
SECTION 9.04. Successors and Assigns.................................................... 63
SECTION 9.05. Expenses; Indemnity....................................................... 66
SECTION 9.06. Right of Setoff........................................................... 66
SECTION 9.07. Applicable Law............................................................ 67
SECTION 9.08. Waivers; Amendment........................................................ 67
SECTION 9.09. Interest Rate Limitation.................................................. 67
SECTION 9.10. Entire Agreement.......................................................... 68
SECTION 9.11. WAIVER OF JURY TRIAL...................................................... 68
SECTION 9.12. Severability.............................................................. 68
SECTION 9.13. Counterparts.............................................................. 68
SECTION 9.14. Headings.................................................................. 68
SECTION 9.15 Jurisdiction; Consent to Service of Process............................... 68
SECTION 9.16 Confidentiality........................................................... 69
SECTION 9.17. Termination............................................................... 69
SCHEDULES:
Schedule 1.01(a) -- Existing Credit Agreements
Schedule 1.01(b) -- Subsidiary Guarantors
Schedule 2.01 -- Lenders and Commitments
Schedule 3.07(a) -- Vessels Not Documented Under United States Law
Schedule 3.07(d) -- Contractual Rights Regarding Mortgaged Property
Schedule 3.08 -- Subsidiaries
Schedule 3.09 -- Litigation
Schedule 3.17 -- Environmental Matters
Schedule 3.18 -- Insurance
Schedule 3.19(d) -- Filing Offices-- Mortgages
Schedule 3.20(a) -- Mortgaged Properties
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Schedule 3.20(b) -- Leased Properties
Schedule 3.20(c) -- Tugs and Barges
Schedule 3.21 -- Labor Matters
Schedule 4.02(a) -- Local Counsel
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04(k) -- Existing Loans to Garvan, C.A.
Schedule 6.07 -- Transactions with Affiliates
EXHIBITS:
Exhibit A -- Form of Administrative Questionnaire
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Borrowing Request
Exhibit D -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E-1 -- Form of Fleet Mortgages
Exhibit E-2 -- Form of Mortgages
Exhibit F -- Form of Parent Guarantee Agreement
Exhibit G -- Form of Pledge Agreement
Exhibit H -- Form of Security Agreement
Exhibit I -- Form of Subsidiary Guarantee Agreement
Exhibit J-1 -- Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
Exhibit J-2 -- Form of Opinion of Local Counsel
Exhibit J-3 -- Form of Opinion of Maritime Counsel
Exhibit K -- Form of Assignments of Insurances
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CREDIT AGREEMENT dated as of June 30, 1998,
among AMERICAN COMMERCIAL LINES LLC, a Delaware
limited liability company (the "Borrower"),
AMERICAN COMMERCIAL LINES HOLDINGS LLC, a
Delaware limited liability company ("Holdings"),
the Lenders (as defined in Article I), and THE
CHASE MANHATTAN BANK, a New York banking
corporation, as issuing bank (in such capacity,
the "Issuing Bank"), as administrative agent (in
such capacity, the "Administrative Agent"), as
security trustee (in such capacity, the "Security
Trustee") and as collateral agent (in such
capacity, the "Collateral Agent") for the
Lenders.
The Borrower has requested the Lenders to extend credit in the form of
(a) Tranche B Term Loans (such term and each other capitalized term used but not
defined herein having the meaning given it in Article I) on the Closing Date, in
an aggregate principal amount not in excess of $200,000,000, (b) Tranche C Term
Loans on the Closing Date, in an aggregate principal amount not in excess of
$235,000,000, and (c) Revolving Loans at any time and from time to time prior to
the Revolving Credit Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $100,000,000. The Borrower has requested the
Issuing Bank to issue letters of credit, in an aggregate face amount at any time
outstanding not in excess of $25,000,000, to support payment obligations
incurred in the ordinary course of business by the Borrower and its
Subsidiaries. The proceeds of the Term Loans, together with the proceeds of the
Senior Unsecured Debt and the proceeds from the Equity Contribution, are to be
used solely (a) to pay the cash consideration to be paid in connection with the
Recapitalization, (b) to pay all amounts outstanding under the Existing Credit
Agreements and all other existing Indebtedness of Holdings, the Borrower and its
Subsidiaries, NMS, Inc., NBL and National Marine (other than Indebtedness
permitted under Section 6.01(a)) and (c) to pay fees and expenses in connection
with the Transactions. The proceeds of the Revolving Loans are to be used solely
for general corporate purposes.
The Lenders are willing to extend such credit to the Borrower and the
Issuing Bank is willing to issue letters of credit for the account of the
Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"399" shall mean 399 Venture Partners, Inc.
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest at
a rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term
Loans.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
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"Account" shall mean any right to payment for goods sold or for
services rendered, whether or not it has been earned by performance.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the product of (a) the LIBO Rate
in effect for such Interest Period and (b) Statutory Reserves.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A or such other form as may be supplied
from time to time by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified.
"Agreement" shall mean this Credit Agreement as originally executed and
as hereafter amended from time to time, including any exhibits hereto.
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount
of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum equal
to the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. If for any reason the Administrative Agent
shall have determined (which determination shall be conclusive absent manifest
error) that it is unable to ascertain the Base CD Rate or the Federal Funds
Effective Rate or both for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms of the definition thereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the preceding sentence, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate,
the Base CD Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate, the Base CD Rate or the Federal
Funds Effective Rate, respectively. The term "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time by the Administrative
Agent as its prime rate in effect at its principal office in New York City; each
change in the Prime Rate shall be effective on the date such change is publicly
announced as being effective. The term "Base CD Rate" shall mean the sum of (a)
the product of (i) the Three-Month Secondary CD Rate and (ii) Statutory Reserves
and (b) the Assessment Rate. The term "Federal Funds Effective Rate" shall mean,
for any day, the weighted average (rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan or ABR Loan, or with respect to the Commitment Fees, as the case
may be, the applicable percentage set forth below under the caption "Eurodollar
Spread--Revolving Loans", "Eurodollar Spread-- Tranche B Term Loans",
"Eurodollar Spread--Tranche C Term Loans", "ABR Spread--Revolving Loans", "ABR
Spread--Tranche B Term Loans", "ABR Spread--Tranche C Term Loans" or "Fee
Percentage", as the case may be, based upon the Consolidated Leverage Ratio as
of the relevant date of determination; provided that, until the Administrative
Agent shall have received the Borrower's consolidated financial statements
pursuant to Section 5.04(a) with respect to its fiscal year ended
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December 25, 1998, the Consolidated Leverage Ratio shall be deemed to be in
Category 1 for purposes of determining the Applicable Percentage:
Eurodollar
Eurodollar ABR Spread- Eurodollar ABR-
Consolidated Spread- Spread- Tranche B ABR Spread- Spread- Spread
Leverage Revolving Revolving Term Tranche B Tranche C Tranche C Fee
Ratio Loans Loans Loans Term Loans Term Loans Term Loans Percentage
----- ----- ----- ----- ---------- ---------- ---------- ----------
Category 1 2.25% 1.25% 2.50% 1.50% 2.75% 1.75% 0.500%
----------
Equal to or
greater than 4.5
to 1.0
Category 2 2.00% 1.00% 2.25% 1.25% 2.50% 1.50% 0.500%
----------
Equal to or
greater than 4.0
to 1.0 but less
than 4.5 to 1.0
Category 3 1.75% 0.75% 2.00% 1.00% 2.25% 1.25% 0.500%
----------
Equal to or
greater than 3.5
to 1.0 but less
than 4.0 to 1.0
Category 4 1.50% 0.50% 2.00% 1.00% 2.25% 1.25% 0.375%
----------
Equal to or
greater than 3.0
to 1.0 but less
than 3.5 to 1.0
Category 5 1.25% 0.25% 2.00% 1.00% 2.25% 1.25% 0.375%
----------
Less than 3.0 to
1.0
Each change in the Applicable Percentage resulting from a change in the
Consolidated Leverage Ratio shall be effective with respect to all Loans,
Commitments and Letters of Credit outstanding on and after the date of delivery
to the Administrative Agent of the financial statements and certificates
required by Section 5.04(a) or (b) indicating such change until the date
immediately preceding the next date of delivery of such financial statements and
certificates indicating another such change. Notwithstanding the foregoing, (a)
at any time during which the Borrower has failed to deliver the financial
statements and certificates required by Section 5.04(a) or (b), or (b) at any
time after the occurrence and during the continuance of an Event of Default, the
Consolidated Leverage Ratio shall be deemed to be in Category 1 for purposes of
determining the Applicable Percentage.
"Approved Fund" shall mean, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative
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Agent to the Federal Deposit Insurance Corporation (or any successor thereto)
for insurance by such Corporation (or such successor) of time deposits made in
dollars at the Administrative Agent's domestic offices.
"Asset Sale" shall mean the sale, transfer or other disposition (by way
of merger or otherwise) by the Borrower or any of the Subsidiaries to any person
other than the Borrower or any Subsidiary Guarantor of (a) any Capital Stock or
equity interests of any of the Subsidiaries (other than directors' qualifying
shares or interests) or (b) any other assets of the Borrower or any of the
Subsidiaries (other than (i) inventory, excess, damaged, obsolete or worn out
assets, scrap and Permitted Investments, in each case disposed of in the
ordinary course of business, (ii) assets transferred with an aggregate fair
market value not exceeding $25,000,000 in any fiscal year of the Borrower in
connection with the replacement or upgrade of a tangible asset of the Borrower
or any Subsidiary Guarantor which will be used in a Related Business and is
acquired, or commitments to acquire such asset have been made, within 270 days
of such transfer, (iii) dispositions resulting in Casualty Proceeds or
Condemnation Proceeds or (iv) sales or transfers (x) by or among Foreign
Subsidiaries or (y) from a Loan Party to a Foreign Subsidiary (or, unless and
until Garvan shall become a Foreign Subsidiary, to Garvan) to the extent, in the
case of this clause (y), that (A) such Loan Party would be permitted to advance
the fair market value of the asset transferred to such Foreign Subsidiary or, if
applicable, to Garvan under Section 6.04(c) or 6.04(l), respectively, and (B)
any such transfer is treated as an intercompany loan pursuant to Section 6.04(c)
or 6.04(l), respectively, and evidenced by an intercompany note pledged to the
Collateral Agent pursuant to the Pledge Agreement for the benefit of the Secured
Parties), provided that any asset sale or series of related asset sales
described in clause (b) above (including by way of condemnation or casualty)
having a value not in excess of $750,000 shall be deemed not to be an "Asset
Sale" for purposes of this Agreement.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Assignments of Insurances" shall mean each of the Assignments of
Insurances, substantially in the form of Exhibit K, between the Borrower and the
Collateral Agent and Security Trustee for the benefit of the Secured Parties.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower, executed by a
Responsible Officer of the Borrower, in accordance with the terms of Section
2.03 and substantially in the form of Exhibit C or such other form as shall be
approved by the Administrative Agent.
"Business Day" shall mean any day other than a Saturday, Sunday or day
on which banks in New York City are authorized or required by law to close;
provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any person shall mean the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
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"Capital Stock" of any person shall mean any and all shares, interests
(including membership and economic interests in a limited liability company),
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, including any preferred
stock, but excluding any debt securities convertible into such equity prior to
such conversion.
"Casualty" shall have the meaning set forth in each of the Mortgages
and the Fleet Mortgages.
"Casualty Proceeds" shall have the meaning set forth in each of the
Mortgages and the Fleet Mortgages.
A "Change in Control" shall be deemed to have occurred if (a) prior to
the first fully distributed public offering of Voting Stock of Holdings, (i) the
Permitted Holders and the Permitted Transferees shall cease to own directly or
indirectly, beneficially or of record, shares representing at least 51% on a
fully diluted, as if converted, basis of the aggregate ordinary voting power
represented by the issued and outstanding Voting Stock of Holdings, (ii) 399 and
its Permitted Transferees shall cease to own directly or indirectly,
beneficially or of record, shares representing at least 35% on a fully diluted,
as if converted, basis of the aggregate ordinary voting power represented by the
issued and outstanding Voting Stock of Holdings, provided that if 399 at any
time shall not be permitted to hold more than 24.9% of such voting power under
any applicable law, regulation or order of any applicable Governmental
Authority, then a Change of Control shall not be deemed to have occurred so long
as 399 owns, directly or indirectly, beneficially or of record, at least 24.9%
of such voting power; (b) after the first fully distributed public offering of
Voting Stock of Holdings, the Permitted Holders and the Permitted Transferees
shall cease to own directly or indirectly, beneficially or of record, shares
representing at least 25% on a fully diluted, as if converted, basis of the
aggregate ordinary voting power represented by the issued and outstanding Voting
Stock of Holdings; (c) after the first fully distributed public offering of
Voting Stock of Holdings, any person or group (within the meaning of Rule 13d-5
of the Securities Exchange Act of 1934 as in effect on the date hereof) other
than the Permitted Holders and the Permitted Transferees shall own directly or
indirectly, beneficially or of record, a percentage of the issued and
outstanding Voting Stock of Holdings on a fully diluted, as if converted, basis
having ordinary voting power in excess of the percentage then owned, directly or
indirectly, beneficially and of record, on a fully diluted, as if converted,
basis, by the Permitted Holders and the Permitted Transferees; (d) a majority of
the seats (except in the case of any vacancy for 60 days or less resulting from
the death or resignation of any director of Holdings) on the board of managers
or analogous body of Holdings shall at any time be occupied by persons who were
not (i) nominated by the board of directors or analogous body of Holdings, (ii)
appointed by directors so nominated or (iii) appointed by one or more Permitted
Holders or Permitted Transferees; (e) any change in control (or similar event,
however denominated) with respect to Holdings or the Borrower shall occur under
and as defined in any indenture or agreement in respect of Indebtedness to which
any such person or any Subsidiary is a party; or (f) Holdings shall cease to
own, beneficially and of record, 100% of the issued and outstanding Capital
Stock of the Borrower.
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in any Security
Document and shall also include the Mortgaged Properties.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment and Term Loan Commitment.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
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"Condemnation" shall have the meaning set forth in each of the
Mortgages and the Fleet Mortgages.
"Condemnation Proceeds" shall have the meaning set forth in each of the
Mortgages and the Fleet Mortgages.
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated June 1998.
"Consolidated Capital Expenditures" shall mean, for any period, the sum
of (a) the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability) by the Borrower or any of the
Subsidiaries during such period that, in accordance with GAAP, are or should be
included in "additions to property, plant and equipment" or similar items
reflected in the consolidated statement of cash flows of the Borrower and the
Subsidiaries for such period (including the amount of assets leased in
connection with any Capital Lease Obligation), and (b) to the extent not
included pursuant to clause (a) above, the aggregate of all expenditures
(whether paid in cash or other consideration or accrued as a liability) by the
Borrower or any Subsidiary during such period to acquire, by purchase or
otherwise, the business, property or fixed assets of, or stock or other evidence
of beneficial ownership of, any person; provided, however, that, for purposes of
Section 6.10 only, to the extent the Borrower or a Subsidiary uses, within 270
days of the receipt thereof, (i) the proceeds of the disposition of assets
described in clause (b)(i) or (ii) of the definition of the term "Asset Sale" or
(ii) Casualty Proceeds or Condemnation Proceeds to purchase, construct, repair,
lease or replace any property, plant or equipment, the amount of the related
Consolidated Capital Expenditure shall be reduced by the amount of such
proceeds.
"Consolidated Current Assets" shall mean, as of any date of
determination, the total assets that would properly be classified as current
assets (other than cash and cash equivalents) of the Borrower and the
Subsidiaries as of such date, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Current Liabilities" shall mean, as of any date of
determination, the total liabilities (other than, without duplication, (a) the
current portion of long-term Indebtedness and (b) outstanding Revolving Loans)
that would properly be classified as current liabilities of the Borrower and the
Subsidiaries as of such date, determined on a consolidated basis in accordance
with GAAP.
"Consolidated EBITDA" shall mean, for any period, Consolidated Net
Income for such period, plus, to the extent deducted in computing such
Consolidated Net Income, (a) the sum, without duplication, of (i) all Federal,
state, local and foreign taxes, and Tax Distributions, (ii) Consolidated Net
Interest Expense and (iii) depreciation, depletion, amortization of intangibles
and other non-cash charges or non-cash losses (including non-cash transaction
expenses and the amortization of debt discounts), minus, to the extent added in
computing such Consolidated Net Income, (b) any non-cash income or non-cash
gains, all as determined on a consolidated basis with respect to the Borrower
and the Subsidiaries in accordance with GAAP.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) Consolidated Net
Interest Expense for such period.
"Consolidated Leverage Ratio" shall mean, as of any date of
determination, the ratio of (a) Net Debt on such date to (b) Consolidated EBITDA
for the period of four consecutive fiscal quarters ending on such date. For
purposes of determining the Consolidated Leverage Ratio as of September 25,
1998, December 25, 1998, and March 26, 1999, Consolidated EBITDA shall be deemed
to be (i) $51,265,000 for the fiscal quarter ended December 26, 1997, (ii)
$22,576,000 for the fiscal quarter ended March 27, 1998, and (iii) $28,208,000
for the fiscal quarter ended June 25, 1998, respectively.
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"Consolidated Net Income" shall mean, for any period, net income or
loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, provided that there shall be
excluded (a) the income of any person in which any other person (other than the
Borrower or any of the Subsidiaries or any director holding qualifying shares in
accordance with applicable law) has a joint interest, except to the extent of
the amount of dividends or other distributions actually paid to the Borrower or
any wholly owned Subsidiary by such person during such period, (b) the income
(or loss) of any person accrued prior to the date it becomes a Subsidiary of the
Borrower or is merged into or consolidated with the Borrower or any of the
Subsidiaries or the date that person's assets are acquired by the Borrower or
any of the Subsidiaries, (c) the income of any Subsidiary of the Borrower to the
extent that the declaration or payment of dividends or similar distributions by
the Subsidiary of that income is not at the time permitted by operation of the
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary, (d) any
gains or losses attributable to sales of assets out of the ordinary course of
business (net of taxes incurred (or in the case of a loss, any tax benefit
realized) and Tax Distributions payable with respect thereto), (e) (to the
extent not included in clauses (a) through (d) above) any non-cash extraordinary
gains or non-cash extraordinary losses (net of taxes incurred (or in the case of
a loss, any tax benefit realized) and Tax Distributions payable with respect
thereto) and (f) any Tax Distributions payable with respect to such period.
"Consolidated Net Interest Expense" shall mean, for any period, the
gross cash interest expense of the Borrower and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including the
portion of any payments or accruals with respect to Capital Lease Obligations
that are allocable to interest expense in accordance with GAAP, but excluding
(a) the amortization of debt discounts and (b) the amortization of all fees
(including fees with respect to Interest Rate Protection Agreements) payable in
connection with the incurrence of Indebtedness to the extent included in
interest expense in accordance with GAAP (including fees and expenses in
connection with the Transactions and the first Credit Event) less the total
interest income of the Borrower and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP. For purposes of the foregoing,
gross cash interest expense shall be determined after giving effect to any net
payments made or received by the Borrower or any Subsidiary with respect to
Interest Rate Protection Agreements.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Event" shall have the meaning assigned to such term in Section
4.01.
"CSX" shall mean CSX Corporation.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any
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Governmental Authority or any person for damages, injunctive or equitable
relief, personal injury (including sickness, disease or death), Remedial Action
costs, tangible or intangible property damage, natural resource damages,
nuisance, pollution, any adverse effect on the environment caused by any
Hazardous Material, or for fines, penalties or restrictions, resulting from or
based upon (a) the existence, or the continuation of the existence, of a Release
(including sudden or non-sudden, accidental or non-accidental Releases), (b)
exposure to any Hazardous Material, (c) the presence, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material or (d)
the violation or alleged violation of any Environmental Law or Environmental
Permit.
"Environmental Law" shall mean any and all applicable present and
future treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the management,
Release or threatened Release of any Hazardous Material or to health and safety
matters, including the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42
U.S.C. Sections 6901 et seq., the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, 33 U.S.C. Sections 1251 et seq.,
the Clean Air Act of 1970, as amended 42 U.S.C. Sections 7401 et seq., the
Toxic Substances Control Act of 1976, 15 U.S.C. Sections 2601 et seq., the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Sections
651 et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Sections 11001 et seq., the Safe Drinking Water Act of 1974, as
amended, 42 U.S.C. Sections 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Sections 5101 et seq., and any similar or
implementing state or local law, and all amendments or regulations promulgated
under any of the foregoing.
"Environmental Permit" shall mean any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Contribution" shall mean the contribution by VGI Investors to
Holdings of an aggregate amount of $60,000,000 in exchange for (a) Junior
Preferred Interests in an aggregate stated amount of $59,454,545 and (b) Junior
Common Interests in an aggregate stated amount of $545,455.
"Equity Issuance" shall mean the issuance by Holdings, the Borrower or
any Subsidiary of any equity securities or any other equity interests of
Holdings, the Borrower or any Subsidiary, as applicable, or the receipt by
Holdings, the Borrower or any Subsidiary of any capital contribution, in each
case, after the Closing Date, other than (a) any such issuance of equity
securities or other equity interests to, or receipt of any such capital
contribution from, Holdings, the Borrower or a Subsidiary, (b) any issuance of
directors' qualifying shares, (c) any issuance of equity securities or other
equity interests by Holdings to management or key employees of Holdings, the
Borrower or any Subsidiary to the extent that the Net Cash Proceeds therefrom
shall not exceed $1,000,000 during any fiscal year of the Borrower, (d) any
issuance of equity securities or other equity interests by any Foreign
Subsidiary to existing stockholders of such Foreign Subsidiary as a result of a
capital call by such Foreign Subsidiary, (e) any issuance or issuances by
Holdings of equity securities to the extent that the Net Cash Proceeds therefrom
shall not exceed $1,000,000 during any fiscal year (net of any such Net Cash
Proceeds used substantially concurrently to purchase equity securities of
Holdings from management or key employees of Holdings, the Borrower or any
Subsidiary upon their death, disability or termination of employment) and (f)
any Sponsor Equity Contribution.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
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"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code, or solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at a
rate determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year of the Borrower, the
excess of (a) the sum, without duplication, of (i) Consolidated EBITDA for such
fiscal year, (ii) extraordinary cash income of the Borrower and its consolidated
Subsidiaries, if any, during such fiscal year and not included in Consolidated
EBITDA and (iii) reductions to non-cash working capital of the Borrower and its
consolidated Subsidiaries for such fiscal year (i.e., the decrease, if any, in
Consolidated Current Assets minus Consolidated Current Liabilities from the
beginning to the end of such fiscal year) over (b) the sum, without duplication,
of (i) the amount of any cash income taxes and cash foreign withholding taxes
payable by the Borrower and its consolidated Subsidiaries, and the amount of any
Tax Distributions payable, in each case with respect to such fiscal year, (ii)
cash interest paid (net of cash interest received) by the Borrower and its
consolidated Subsidiaries during such fiscal year, (iii) Consolidated Capital
Expenditures made in cash in accordance with Section 6.10 during such fiscal
year, except to the extent financed with the proceeds of Indebtedness or a
Sponsor Equity Contribution, (iv) scheduled principal repayments of Indebtedness
made by the Borrower and its consolidated Subsidiaries during such fiscal year,
(v) optional and mandatory prepayments of the principal of Loans during such
fiscal year, but only to the extent that such prepayments by their terms cannot
be reborrowed or redrawn and do not occur in connection with a refinancing of
all or any portion of the Loans, (vi) extraordinary cash expenses paid by the
Borrower and its consolidated Subsidiaries, if any, during such fiscal year and
not included in Consolidated EBITDA and (vii) additions to non-cash working
capital for such fiscal year (i.e., the increase, if any, in Consolidated
Current Assets minus Consolidated Current Liabilities from the beginning to the
end of
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such fiscal year), provided that to the extent otherwise included therein, the
Net Cash Proceeds of Asset Sales and dispositions resulting in Casualty Proceeds
or Condemnation Proceeds and gains or losses resulting from translation of
foreign currencies shall be excluded from the calculation of Excess Cash Flow.
"Excluded Taxes" shall mean, with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.21(a)), any withholding tax that is imposed on amounts
payable to such Foreign Lender under the laws in effect at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office) or
is attributable to such Foreign Lender's failure to comply with Section 2.20(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.20(a).
"Existing Credit Agreements" shall mean the agreements listed in
Schedule 1.01(a).
"Family Group" shall mean, with respect to a natural person, such
person, such person's spouse, siblings, and descendants (whether natural, by
marriage or adopted) and any trust solely for the benefit of such person and/or
such person's spouse, siblings, their respective ancestors and/or descendants
(whether natural, by marriage or adopted).
"Fee Letter" shall mean the Fee Letter dated April 17, 1998, between
VGI and the Administrative Agent.
"Fees" shall mean the Commitment Fees, the Administrative Agent's Fees,
the L/C Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any person shall mean the chief financial
officer, principal accounting officer, Treasurer or Controller of such person.
"Financing Transactions" shall mean (a) the execution, delivery and
performance by each Loan Party of the Loan Documents to which it is to be a
party, the borrowing of Loans, the use of the proceeds thereof and the issuance
of Letters of Credit hereunder, (b) the execution, delivery and performance by
each Loan Party of the Senior Unsecured Debt Documents to which it is to be a
party, the issuance of the Senior Unsecured Debt and the use of the proceeds
thereof and (c) the Equity Contribution.
"Fleet Mortgages" shall mean the first preferred fleet mortgages
delivered pursuant to clause (i) of Section 4.02(j) or pursuant to Section 5.10,
as supplemented from time to time pursuant to the terms thereof, each
substantially in the form of Exhibit E-2.
"Foreign Lender" shall mean any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
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"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"Garvan" shall mean Garvan, C.A., a Venezuelan company.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation, contingent
or otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other person (the "primary obligor") in any
manner, whether directly or indirectly, and including any obligation of such
person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance
or supply funds for the purchase of) any security for the payment of such
Indebtedness, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness of the payment of such
Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantee Agreements" shall mean the Parent Guarantee Agreement and
the Subsidiary Guarantee Agreement.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Hazardous Materials" shall mean all explosive or radioactive
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
PCB-containing materials or equipment, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" of any person shall mean, without duplication, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid (excluding trade accounts
payable and accrued obligations incurred in the ordinary course of business),
(d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person,
(e) all obligations of such person issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable and accrued
obligations incurred in the ordinary course of business), (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on property,
valued at the fair market value of the assets subject to such Lien (in the case
of nonrecourse Indebtedness) owned or acquired by such person, whether or not
the obligations secured thereby have been assumed, (g) all Guarantees by such
person of Indebtedness of others, (h) all Capital Lease Obligations of such
person, (i) all obligations of such person in respect of interest rate
protection agreements, foreign currency exchange agreements or other interest or
exchange rate hedging arrangements and (j) all obligations of such person as an
account party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership in
which such person is a general partner, except to the extent that the terms of
such Indebtedness provide otherwise.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit D, among the Borrower, the Subsidiary Guarantors and the Collateral
Agent.
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"Interest Payment Date" shall mean, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, each day that would have been an Interest Payment
Date had successive Interest Periods of three months' duration been applicable
to such Borrowing, and, in addition, the date of any prepayment of such
Borrowing or conversion of such Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect, and (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the earlier of (i) the next succeeding
March 31, June 30, September 30 or December 31 and (ii) the Revolving Credit
Maturity Date, the Tranche B Maturity Date or the Tranche C Maturity Date, as
applicable; provided, however, that if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or
similar agreement or arrangement designed to protect the Borrower or any
Subsidiary against fluctuations in interest rates, and not entered into for
speculation.
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"Junior Preferred Interests" shall mean junior preferred limited
liability company membership interests in Holdings.
"Junior Common Interests" shall mean voting and nonvoting junior common
limited liability company membership interests in Holdings.
"L/C Commitment" shall mean the commitment of the Issuing Bank to issue
Letters of Credit pursuant to Section 2.22.
"L/C Disbursement" shall mean a payment or disbursement made by the
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at any
time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at such
time.
"L/C Participation Fee" shall have the meaning assigned to such term in
Section 2.05(c) .
"Lenders" shall mean (a) the financial institutions listed on Schedule
2.01 (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.22.
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"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Dow ▇▇▇▇▇ Service
(or on any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
so available at such time for any reason, the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits approximately equal in principal amount to the Administrative Agent's
portion of such Eurodollar Borrowing and for a maturity comparable to such
Interest Period are offered to the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third party with respect to such securities.
"LLC Agreement" shall mean the Amended and Restated Limited Liability
Company Agreement of Holdings dated as of June 30, 1998, by and among Holdings,
CSX Corporation, VGI, National Marine and certain other persons party thereto.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Guarantee Agreements, the Security Documents and the Indemnity, Subrogation and
Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans and the Term Loans.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect on
the business, assets, operations, condition (financial or otherwise),
liabilities, prospects or material agreements of Holdings, the Borrower and the
Subsidiaries, taken as a whole, (b) material impairment of the ability of the
Borrower and the other Loan Parties to perform any of their obligations under
the Loan Documents to which they are or will be a party or (c) material
impairment of the rights of or benefits available to the Lenders under any Loan
Document.
"Mortgaged Properties" shall mean (a) the owned real properties and
leasehold and subleasehold interests of the Loan Parties specified on Schedules
3.20(a) and 3.20(b) and (b) the Vessels specified on Schedule 3.20(c).
"Mortgages" shall mean the mortgages, deeds of trust, leasehold
mortgages, assignments of leases and rents, modifications and other security
documents delivered pursuant to clause (i) of Section 4.02(j) or pursuant to
Section 5.10, each substantially in the form of Exhibit E-1.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"National Marine" shall mean National Marine, Inc., a Delaware
corporation and wholly owned subsidiary of VGI.
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"National Marine Contribution" shall mean the transfer by National
Marine of all the limited liability membership interests in NMI Holdings
pursuant to, and in accordance with the terms of, the Recapitalization Documents
to Holdings in exchange for (a) Junior Preferred Interests in an aggregate
stated amount of up to $1,500,000, (b) Junior Common Interests in an aggregate
stated amount of up to $110,909 and (c) Senior Common Interests in an aggregate
stated amount of up to $3,389,091 (with a future profits interests in Holdings
of up to $32,500,000), in each case subject to adjustment as set forth in the
Recapitalization Documents.
"NBL" shall mean NBL, Inc., a Louisiana corporation and a subsidiary of
VGI.
"Net Cash Proceeds" shall mean (a) with respect to any Asset Sale, the
cash proceeds (including cash proceeds subsequently received (as and when
received) in respect of non-cash consideration initially received and including
all insurance settlements and condemnation awards in any fiscal year of the
Borrower in excess of $250,000), net of (i) selling expenses (including
reasonable broker's fees or commissions, legal fees, transfer and similar taxes
and the Borrower's good faith estimate of income taxes and Tax Distributions
paid or payable in connection with such sale), (ii) amounts provided as a
reserve, in accordance with GAAP, against any liabilities under any
indemnification obligations associated with such Asset Sale (provided that, to
the extent and at the time any such amounts are released from such reserve, such
amounts shall constitute Net Cash Proceeds) and (iii) the principal amount,
premium or penalty, if any, interest and other amounts on any Indebtedness for
borrowed money which is secured by the asset sold in such Asset Sale and which
is repaid with such proceeds (other than any such Indebtedness assumed by the
purchaser of such asset), (b) with respect to any issuance or disposition of
Indebtedness, the cash proceeds thereof, net of all taxes and customary fees,
commissions, costs and other expenses incurred, and Tax Distributions payable,
in connection therewith and (c) with respect to any Equity Issuance or Sponsor
Equity Contribution, the cash proceeds thereof, net of all customary fees,
commissions, costs and other expenses incurred, and Tax Distributions payable,
in connection therewith.
"Net Debt" shall mean, at any date and without duplication, (a) the
aggregate amount of all Indebtedness of the Borrower and the Subsidiaries on a
consolidated basis at such date (other than any Indebtedness described in clause
(i) or, except to the extent of any unreimbursed drawings thereunder, (j) of the
definition of the term "Indebtedness") minus (b) the aggregate amount of all
cash and Permitted Investments as shown on the Borrower's consolidated balance
sheet on such date.
"NMI Holdings" shall mean NMI Holdings LLC, a Delaware limited
liability company and wholly owned subsidiary of National Marine.
"NMI Holdings Merger" shall mean the merger of NMI Holdings and its
subsidiaries with and into Holdings, with Holdings as the surviving limited
liability company, and with certain subsidiaries of NMI Holdings surviving as
direct or indirect wholly owned Subsidiaries of the Borrower.
"Non-Pledged Foreign Subsidiaries" shall mean ACL Venezuela Ltd. and
ACBL Hidrovias Ltd., for so long as the Borrower is restricted under agreements
in effect on the Closing Date from pledging or causing to be pledged the Capital
Stock of such Foreign Subsidiaries.
"Obligations" shall mean all obligations defined as "Obligations" in
the Guarantee Agreements and the Security Documents.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Parent Guarantee Agreement" shall mean the Parent Guarantee Agreement,
substantially in the form of Exhibit F, made by Holdings in favor of the
Collateral Agent for the benefit of the Secured Parties.
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"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Perfection Certificate" shall mean the Perfection Certificate
substantially in the form of Annex 2 to the Security Agreement.
"Permitted Holders" shall mean 399, CSX, their respective Affiliates
and management existing at the Borrower, Holdings or any Subsidiary on the
Closing Date or within 90 days thereafter.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard &
Poor's Ratings Service or from ▇▇▇▇▇'▇ Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within one year from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus
and undivided profits of not less than $250,000,000 or any Lender;
(d) other investment instruments approved in writing by the
Required Lenders and offered by financial institutions which have a
combined capital and surplus and undivided profits of not less than
$250,000,000; and
(e) shares of funds registered under the Investment Company
Act of 1940, as amended, that have assets of at least $100,000,000 and
invest only in obligations described in clauses (a) through (d) above,
to the extent that such shares are rated by ▇▇▇▇▇'▇ Investors Service,
Inc. or Standard & Poor's Ratings Service in one of the two highest
rating categories assigned by such agency for shares of such nature.
"Permitted Transferees" shall mean with respect to a person, such
person's Affiliates, limited partners, stockholders, directors and employees
(and partnerships or trusts of which such directors and employees are the sole
partners or beneficiaries), and in the case of a natural person, pursuant to
applicable laws of descent and distribution or to any member of such person's
Family Group.
"person" shall mean any natural person, corporation, unincorporated
organization, business trust, joint venture, association, company, limited
liability company, partnership or government, or any agency or political
subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit G, among the Borrower, Holdings, the Subsidiaries party
thereto and the Collateral Agent for the benefit of the Secured Parties.
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"Pro Rata Percentage" of any Revolving Credit Lender at any time shall
mean the percentage of the Total Revolving Credit Commitment represented by such
Lender's Revolving Credit Commitment.
"Recapitalization" shall mean the recapitalization of Holdings pursuant
to, and in accordance with the terms of, the Recapitalization Documents,
including (a) the VGI Asset Transfer, (b) the National Marine Contribution, (c)
the NMI Holdings Merger and (d) the issuance of equity securities of Holdings
thereunder.
"Recapitalization Agreement" shall mean the Recapitalization Agreement
dated as of April 17, 1998, among CSX Corporation, VGI, Holdings, the Borrower
and National Marine, as the same may be amended, supplemented or otherwise
modified in accordance with the terms thereof and hereof.
"Recapitalization Documents" shall mean the Recapitalization Agreement
and all other agreements and documents relating to the transactions contemplated
thereby.
"Register" shall have the meaning given such term in Section 9.04(d).
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Business" shall mean any business of the Borrower and its
Subsidiaries as conducted on the Closing Date and any business related,
ancillary or complementary thereto.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" shall mean (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24), and (b) all other actions
required by any Governmental Authority or voluntarily undertaken to: (i)
cleanup, remove, treat, ▇▇▇▇▇ or in any other way address any Hazardous Material
in the environment; (ii) prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Material so it does not migrate or endanger
or threaten to endanger public health, welfare or the environment; or (iii)
perform studies and investigations in connection with, or as a precondition to,
(i) or (ii) above.
"Required Lenders" shall mean, at any time, Lenders having Loans, L/C
Exposure and unused Revolving Credit and Term Loan Commitments representing at
least a majority of the sum of all Loans outstanding, L/C Exposure and unused
Revolving Credit and Term Loan Commitments at such time.
"Responsible Officer" of any person shall mean any executive officer or
Financial Officer of such person and any other officer or similar official
thereof responsible for the administration of the obligations of such person in
respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each Lender,
the commitment of such Lender to make Revolving Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Revolving Credit Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to
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Section 2.09 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving Credit
Commitment.
"Revolving Credit Maturity Date" shall mean June 30, 2005.
"Revolving Loans" shall mean the revolving loans made by the Lenders to
the Borrower pursuant to clause (c) of Section 2.01. Each Revolving Loan shall
be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Secured Parties" shall have the meaning assigned to such term in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement, substantially
in the form of Exhibit H, among the Borrower, the Subsidiaries party thereto and
the Collateral Agent for the benefit of the Secured Parties.
"Security Documents" shall mean the Mortgages, the Fleet Mortgages, the
Security Agreement, the Pledge Agreement, the Assignments of Insurances and each
of the security agreements, mortgages and other instruments and documents
executed and delivered pursuant to any of the foregoing or pursuant to Section
5.10.
"Senior Common Interests" shall mean senior common limited liability
company membership interests in Holdings.
"Senior Preferred Interests" shall mean senior preferred limited
liability company membership interests in Holdings.
"Senior Unsecured Notes" shall mean the Senior Notes due 2008 to be
issued by the Borrower and a special purpose co-obligor of the Borrower on the
Closing Date in the aggregate principal amount of $300,000,000.
"Senior Unsecured Debt " shall mean the Senior Unsecured Notes, any
Guarantees thereof and the Indebtedness represented thereby.
"Senior Unsecured Debt Documents" shall mean the indenture under which
the Senior Unsecured Notes are issued and all other instruments, agreements and
other documents evidencing or governing the Senior Unsecured Notes or providing
for any Guarantee or other right in respect thereof.
"Sponsor Equity Contribution" shall mean the issuance by Holdings of
any equity securities or other equity interests of Holdings to one or more
Permitted Holders to the extent that the Net Cash Proceeds therefrom are
committed to finance a Consolidated Capital Expenditure at the time of such
issuance and are used to finance a Consolidated Capital Expenditure within 270
days after such Net Cash Proceeds are received.
"Statutory Reserves " shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board and any other banking authority, domestic or foreign,
to which the Administrative Agent or any Lender (including any branch,
Affiliate, or other fronting
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office making or holding a Loan) is subject (a) with respect to the Base CD
Rate, for new negotiable nonpersonal time deposits in dollars of over $100,000
with maturities approximately equal to three months, and (b) with respect to the
Adjusted LIBO Rate, for Eurocurrency Liabilities (as defined in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D. Statutory Reserves shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, limited liability company,
association or other business entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or more than 50% of the general partnership interests are,
at the time any determination is being made, owned, controlled or held, or (b)
that is, at the time any determination is made, otherwise Controlled, by the
parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"Subsidiary" shall mean any direct or indirect subsidiary of the
Borrower, after giving effect to the Recapitalization.
"Subsidiary Guarantee Agreement" shall mean the Subsidiary Guarantee
Agreement, substantially in the form of Exhibit I, made by the Subsidiary
Guarantors in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Subsidiary Guarantor" shall mean each Subsidiary listed on Schedule
1.01(b), and each other Subsidiary that is or becomes a party to a Subsidiary
Guarantee Agreement.
"Taxes" shall mean any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Tax Distribution" shall mean, so long as the Borrower is a limited
liability company, distributions to Holdings as sole member (or shareholder) of
the Borrower in an aggregate amount, with respect to any taxable period ending
after March 31, 1998, not to exceed the amount payable by Holdings pursuant to
the tax distribution provisions of the LLC Agreement, as in effect on the date
of this Agreement, to the holders of Holdings' Capital Stock as a direct result
of their holding membership interests in Holdings; provided that with respect to
any period during which Borrower is included in a consolidated group (other than
as the parent of such group) for Federal income tax purposes (by reason of an
initial public offering or otherwise), Borrower shall be permitted to distribute
to the parent company of such group cash in an amount equal to the combined
Federal, state and local income taxes that would be paid by the Borrower and its
domestic Subsidiaries with respect to such period if they operated as a single
Delaware corporation filing separate tax returns with respect to their combined
actual taxable income.
"Term Borrowing" shall mean a Borrowing comprised of Tranche B Term
Loans or Tranche C Term Loans.
"Term Loan Commitments" shall mean the Tranche B Commitments and the
Tranche C Commitments.
"Term Loan Repayment Dates" shall mean the Tranche B Term Loan
Repayment Dates and the Tranche C Term Loan Repayment Dates.
"Term Loans" shall mean the Tranche B Term Loans and the Tranche C Term
Loans.
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"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"Tranche B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche B Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Tranche B Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04.
"Tranche B Maturity Date" shall mean June 30, 2006.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of Tranche
B Term Loans.
"Tranche B Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(i).
"Tranche B Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (a) of Section 2.01. Each Tranche B Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Tranche C Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make Tranche C Term Loans hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender
assumed its Tranche C Commitment, as applicable, as the same may be (a) reduced
from time to time pursuant to Section 2.09 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04.
"Tranche C Maturity Date" shall mean June 30, 2007.
"Tranche C Term Borrowing" shall mean a Borrowing comprised of Tranche
C Term Loans.
"Tranche C Term Loan Repayment Date" shall have the meaning assigned to
such term in Section 2.11(a)(ii).
"Tranche C Term Loans" shall mean the term loans made by the Lenders to
the Borrower pursuant to clause (b) of Section 2.01. Each Tranche C Term Loan
shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Transactions" shall mean the Recapitalization and the Financing
Transactions.
"Type", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, the term "Rate" shall include
the Adjusted LIBO Rate and the Alternate Base Rate.
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"Vessels" shall mean the towboats and barges listed on Schedule
3.20(c).
"VGI" shall mean Vectura Group, Inc, a Delaware corporation and any
successor thereto (whether by merger, consolidation, liquidation or otherwise).
"VGI Asset Transfer" shall mean, pursuant to, and in accordance with
the terms of, the Recapitalization Documents, (a) the transfer by VGI and its
subsidiaries of all their consolidated assets (other than certain limited assets
and interests in certain subsidiaries as set forth in the Recapitalization
Documents) to NMI Holdings and subsidiaries of NMI Holdings, (b) the assumption
by NMI Holdings and subsidiaries of NMI Holdings of all liabilities of VGI,
National Marine and NBL (other than certain limited liabilities as set forth in
the Recapitalization Documents) and (c) the issuance by NMI Holdings of all its
limited liability company membership interests to National Marine.
"VGI Investors" shall mean VGI and certain investors arranged by VGI.
"Voting Stock" of a person shall mean all classes of Capital Stock of
such person then outstanding and normally entitled to vote in the election of
directors (or persons performing similar functions).
"wholly owned Subsidiary" of any person shall mean a subsidiary of such
person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such person or one or
more wholly owned subsidiaries of such person or by such person and one or more
wholly owned subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI or any related definition to eliminate the effect of any change in GAAP
occurring after the date of this Agreement or to reflect the application of
Accounting Principles Board Opinions 16 and 17 on the operation of such covenant
(or if the Administrative Agent notifies the Borrower that the Required Lenders
wish to amend Article VI or any related definition for either such purpose),
then the Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, or without the application of Accounting Principles Board Opinions 16
and 17, as applicable, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Tranche B Term Loan to the
Borrower on the Closing Date in a principal amount not to exceed its Tranche B
Commitment, (b) to make a Tranche C Term Loan to the Borrower on the Closing
Date in a principal amount not to exceed its Tranche C Commitment, and (c) to
make Revolving Loans to the Borrower, at any time and from time to time on or
after the date hereof, and until the earlier of the Revolving Credit Maturity
Date and the termination of the Revolving Credit Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in such Lender's Revolving Credit Exposure
exceeding such Lender's Revolving Credit Commitment. Within the limits set forth
in clause (c) of the preceding sentence and subject to the terms, conditions and
limitations set forth herein, the Borrower may borrow, pay or prepay and
reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans may
not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a Borrowing
consisting of Loans made by the Lenders ratably in accordance with their
applicable Commitments; provided, however, that the failure of any Lender to
make any Loan shall not in itself relieve any other Lender of its obligation to
lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Except for Loans deemed made pursuant to Section
2.02(f), the Loans comprising any Borrowing shall be in an aggregate principal
amount that is (i) an integral multiple of $1,000,000 and not less than
$5,000,000 or (ii) equal to the remaining available balance of the applicable
Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
pursuant to Section 2.03. Each Lender may at its option make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan, provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that (i) the Borrower shall not be entitled to request
any Borrowing that, if made, would result in more than nine Eurodollar
Borrowings outstanding hereunder at any time and (ii) without the consent of the
Administrative Agent, the Borrower shall not be entitled to submit a request for
any Eurodollar Borrowing prior to July 1, 1998. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Borrowings.
(c) Except with respect to Loans made pursuant to Section 2.02(f), each
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds to such account in New
York City as the Administrative Agent may designate not later than 11:00 a.m.,
New York City time, and the Administrative Agent shall by 12:00 (noon), New York
City time, credit the amounts so received to an account in the name of the
Borrower, maintained with the Administrative Agent and designated by the
Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur
on such date because any condition precedent herein specified shall not have
been met, return the amounts so received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
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available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing (in
lieu of interest that would otherwise become due to such Lender pursuant to
Section 2.06) and (ii) in the case of such Lender, a rate determined by the
Administrative Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
(excluding interest thereon) shall constitute such Lender's Loan as part of such
Borrowing for purposes of this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request a Borrowing pursuant to which the Interest
Period requested with respect thereto would end after the Revolving Credit
Maturity Date.
(f) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.22(e) within the time specified in such
Section, the Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of immediately
available funds to the Administrative Agent not later than 2:00 p.m., New York
City time, on such date (or, if such Revolving Credit Lender shall have received
such notice later than 12:00 (noon), New York City time, on any day, not later
than 10:00 a.m., New York City time, on the immediately following Business Day),
an amount equal to such Lender's Pro Rata Percentage of such L/C Disbursement
(it being understood that such amount shall be deemed to constitute an ABR
Revolving Loan of such Lender and such payment shall be deemed to have reduced
the L/C Exposure), and the Administrative Agent will promptly pay to the Issuing
Bank amounts so received by it from the Revolving Credit Lenders. The
Administrative Agent will promptly pay to the Issuing Bank any amounts received
by it from the Borrower pursuant to Section 2.22(e) prior to the time that any
Revolving Credit Lender makes any payment pursuant to this paragraph (f); any
such amounts received by the Administrative Agent thereafter will be promptly
remitted by the Administrative Agent to the Revolving Credit Lenders that shall
have made such payments and to the Issuing Bank, as their interests may appear.
If any Revolving Credit Lender shall not have made its Pro Rata Percentage of
such L/C Disbursement available to the Administrative Agent as provided above,
such Lender and the Borrower severally agree to pay interest on such amount, for
each day from and including the date such amount is required to be paid in
accordance with this paragraph to but excluding the date such amount is paid, to
the Administrative Agent for the account of the Issuing Bank at (i) in the case
of the Borrower, a rate per annum equal to the interest rate applicable to
Revolving Loans pursuant to Section 2.06(a) (in lieu of interest that would
otherwise become due to such Lender pursuant to Section 2.06), and (ii) in the
case of such Lender, for the first such day, the Federal Funds Effective Rate,
and for each day thereafter, the Alternate Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a deemed Borrowing pursuant to Section 2.02(f), as to which this
Section 2.03 shall not apply), the Borrower shall hand deliver or telecopy to
the Administrative Agent a duly completed Borrowing Request (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the Business Day of
a proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Tranche B
Term Borrowing, a Tranche C Term Borrowing or a Revolving Credit Borrowing, and
whether such Borrowing is to be a Eurodollar Borrowing or an ABR Borrowing; (ii)
the date of such Borrowing (which shall be a Business Day), (iii) the number and
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(c)); (iv) the amount
of such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing,
the
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Interest Period with respect thereto; provided, however, that, notwithstanding
any contrary specification in any Borrowing Request, each requested Borrowing
shall comply with the requirements set forth in Section 2.02. If no election as
to the Type of Borrowing is specified in any such notice, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period with respect to any
Eurodollar Borrowing is specified in any such notice, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Administrative Agent shall promptly advise the applicable Lenders of any notice
given pursuant to this Section 2.03 (and the contents thereof), and of each
Lender's portion of the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the principal amount of each Term Loan of such Lender as
provided in Section 2.11 and the then unpaid principal amount of each Revolving
Loan of such Lender on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder from the Borrower or any Guarantor and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) above shall be prima facie evidence of the existence and amounts of
the obligations therein recorded; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event
any Lender shall request and receive a promissory note payable to such Lender
and its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 9.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Lender,
through the Administrative Agent, on the last day of March, June, September and
December in each year (beginning September 30, 1998) and on each date on which
any Commitment of such Lender shall expire or be terminated as provided herein,
a commitment fee (a "Commitment Fee") equal to the Applicable Percentage set
forth under the heading "Fee Percentage" in the definition of the term
"Applicable Percentage" per annum in effect from time to time on the average
daily unused amount of the Commitments of such Lender during the preceding
quarter (or other period commencing with the date hereof or ending with the
Revolving Credit Maturity Date or the date on which the Commitments of such
Lender shall expire or be terminated). All Commitment Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days. The
Commitment Fee due to each Lender shall commence to accrue on the date hereof
and shall cease to accrue on the date on which the Commitment of such Lender
shall expire or be terminated as provided herein. For purposes of this Section
2.05, the unused amount of any Lender's Revolving Credit Commitment on any date
shall equal such Lender's Revolving Credit Commitment on such date minus such
Lender's Revolving Credit Exposure on such date.
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(b) The Borrower agrees to pay to the Administrative Agent, for its own
account, the administrative fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last day of March, June, September and
December of each year (beginning September 30, 1998) and on the date on which
the Revolving Credit Commitment of such Lender shall be terminated as provided
herein, a fee (an "L/C Participation Fee") calculated on such Lender's Pro Rata
Percentage of the average daily aggregate L/C Exposure (excluding the portion
thereof attributable to unreimbursed L/C Disbursements) during the preceding
quarter (or shorter period commencing with the date hereof or ending with the
Revolving Credit Maturity Date or the date on which all Letters of Credit have
been canceled or have expired and the Revolving Credit Commitments of all
Lenders shall have been terminated) at a rate equal to the Applicable Percentage
from time to time used to determine the interest rate on Revolving Credit
Borrowings comprised of Eurodollar Loans pursuant to Section 2.06, and (ii) to
the Issuing Bank with respect to each Letter of Credit the standard fronting,
issuance and drawing fees specified from time to time by the Issuing Bank (the
"Issuing Bank Fees"). All L/C Participation Fees and Issuing Bank Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders, except that the Issuing Bank Fees shall be paid directly to
the Issuing Bank. Once paid, none of the Fees shall be refundable under any
circumstances.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when the Alternate Base Rate is determined by
reference to the Prime Rate and over a year of 360 days at all other times) at a
rate per annum equal to the Alternate Base Rate plus the Applicable Percentage
in effect from time to time.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum equal
to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, or under any other Loan Document,
the Borrower shall on demand from time to time pay interest, to the extent
permitted by law, on such defaulted amount from the date of such default to but
excluding the date of actual payment (after as well as before judgment) (a) in
the case of overdue principal, at the rate otherwise applicable to such Loan
pursuant to Section 2.06 plus 2.00% per annum and (b) in all other cases, at a
rate per annum (computed on the basis of the actual number of days elapsed over
a year of 365 or 366 days, as the case may be, when determined by reference to
the Prime Rate and over a year of 360 days at all other times) equal to the sum
of the Alternate Base Rate plus 2.00% per annum.
SECTION 2.08. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined in good faith that dollar deposits in the principal
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amounts of the Loans comprising such Borrowing are not generally available in
the London interbank market, or that the rates at which such dollar deposits are
being offered will not adequately and fairly reflect the cost to any Lender of
making or maintaining its Eurodollar Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, but, in any
event, prior to the commencement of any Interest Period, give written or
telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
advised the Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, any request by the Borrower for a Eurodollar Borrowing
pursuant to Section 2.03 or 2.10 shall be deemed to be a request for an ABR
Borrowing. Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The Term
Loan Commitments shall automatically terminate at 5:00 p.m., New York City time,
on the Closing Date. The Revolving Credit Commitments and the L/C Commitment
shall automatically terminate on the Revolving Credit Maturity Date.
Notwithstanding the foregoing, all the Commitments shall automatically terminate
at 5:00 p.m., New York City time, on July 15, 1998, if the initial Credit Event
shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce, in
each case, without premium or penalty, either of the Term Loan Commitments or
the Revolving Credit Commitments; provided, however, that (i) each partial
reduction of either of the Term Loan Commitments or the Revolving Credit
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $5,000,000 and (ii) the Total Revolving Credit Commitment shall not be
reduced to an amount that is less than the Aggregate Revolving Credit Exposure
at the time.
(c) Each reduction in either of the Term Loan Commitments or the
Revolving Credit Commitments hereunder shall be made ratably among the Lenders
in accordance with their respective applicable Commitments. The Borrower shall
pay to the Administrative Agent for the account of the applicable Lenders, on
the date of each termination or reduction, the unpaid Commitment Fees on the
amount of the Commitments so terminated or reduced accrued to but excluding the
date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower
shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 11:00 a.m., New York City time, on the
Business Day of conversion, to convert any Eurodollar Borrowing into an ABR
Borrowing, (b) not later than 10:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert any ABR Borrowing into a
Eurodollar Borrowing or to continue any Eurodollar Borrowing as a Eurodollar
Borrowing for an additional Interest Period, and (c) not later than 10:00 a.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Borrowing to another permissible
Interest Period, subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among
the Lenders in accordance with the respective principal amounts of the
Loans comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting
Borrowing shall satisfy the limitations specified in Sections 2.02(a)
and 2.02(b) regarding the principal amount and maximum number of
Borrowings of the relevant Type;
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(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the
new Loan of such Lender resulting from such conversion and reducing the
Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued and unpaid interest on any
Eurodollar Loan (or portion thereof) being converted shall be paid by
the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall
pay, upon demand, any amounts due to the Lenders pursuant to Section
2.16;
(v) any portion of a Borrowing maturing or required to be repaid
in less than one month may not be converted into or continued as a
Eurodollar Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be
converted into or continued as a Eurodollar Borrowing by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Borrowing into an ABR
Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than the applicable Term Loan Repayment
Date occurring on or after the first day of such Interest Period if,
after giving effect to such selection, the aggregate outstanding amount
of (A) the Eurodollar Term Borrowings comprised of Tranche B Term Loans
or Tranche C Term Loans, as applicable, with Interest Periods ending on
or prior to such Term Loan Repayment Date and (B) the ABR Term
Borrowings comprised of Tranche B Term Loans or Tranche C Term Loans,
as applicable, would not be at least equal to the principal amount of
Term Borrowings to be paid on such Term Loan Repayment Date;
(viii) upon notice to the Borrower from the Administrative Agent
given at the request of the Required Lenders, after the occurrence and
during the continuance of a Default or Event of Default, no outstanding
Loan may be converted into, or continued as, a Eurodollar Loan; and
(ix) without the consent of the Administrative Agent, the Borrower
shall not be entitled to request the conversion of any ABR Borrowing to
a Eurodollar Borrowing prior to July 1, 1998.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing that the Borrower requests be converted or continued, (ii) whether
such Borrowing is to be converted to or continued as a Eurodollar Borrowing or
an ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted to or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the Lenders of any notice given
pursuant to this Section 2.10 and of each Lender's portion of any converted or
continued Borrowing. If the Borrower shall not have given notice in accordance
with this Section 2.10 to continue any Borrowing into a subsequent Interest
Period (and shall not otherwise have given notice in accordance with this
Section 2.10 to convert such Borrowing), such Borrowing shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on the dates
set forth below, or if any such date is not a Business Day, on the next
succeeding Business Day (each such date being a "Tranche B Term Loan Repayment
Date"), a principal amount of the Tranche B Term Loans (as adjusted from time to
time pursuant to Sections 2.11(b), 2.12 and 2.13(g)) equal to the amount set
forth below for such date,
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together in each case with accrued and unpaid interest on the principal amount
to be paid to but excluding the date of such payment:
Date Amount
---- ------
September 30, 1998 $250,000
December 31, 1998 250,000
March 31, 1999 250,000
June 30, 1999 250,000
September 30, 1999 250,000
December 31, 1999 250,000
March 31, 2000 250,000
June 30, 2000 250,000
September 30, 2000 250,000
December 31, 2000 250,000
March 31, 2001 250,000
June 30, 2001 250,000
September 30, 2001 250,000
December 31, 2001 250,000
March 31, 2002 250,000
June 30, 2002 250,000
September 30, 2002 250,000
December 31, 2002 250,000
March 31, 2003 250,000
June 30, 2003 250,000
September 30, 2003 5,000,000
December 31, 2003 5,000,000
March 31, 2004 5,000,000
June 30, 2004 5,000,000
September 30, 2004 18,750,000
December 31, 2004 18,750,000
March 31, 2005 18,750,000
June 30, 2005 18,750,000
September 30, 2005 25,000,000
December 31, 2005 25,000,000
March 31, 2006 25,000,000
Tranche B Maturity Date 25,000,000
(ii) The Borrower shall pay to the Administrative Agent, for the
account of the Lenders, on the dates set forth below or, if any such date is not
a Business Day, on the next succeeding Business Day (each such date being a
"Tranche C Term Loan Repayment Date"), a principal amount of the Tranche C Term
Loans (as adjusted from time to time pursuant to Sections 2.11(b), 2.12 and
2.13(g)) equal to the amount set forth below for such date, together in each
case with accrued and unpaid interest on the principal amount to be paid to but
excluding the date of such payment:
Date Amount
---- ------
September 30, 1998 $250,000
December 31, 1998 250,000
March 31, 1999 250,000
June 30, 1999 250,000
September 30, 1999 250,000
December 31, 1999 250,000
March 31, 2000 250,000
June 30, 2000 250,000
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September 30, 2000 250,000
December 31, 2000 250,000
March 31, 2001 250,000
June 30, 2001 250,000
September 30, 2001 250,000
December 31, 2001 250,000
March 31, 2002 250,000
June 30, 2002 250,000
September 30, 2002 250,000
December 31, 2002 250,000
March 31, 2003 250,000
June 30, 2003 250,000
September 30, 2003 250,000
December 31, 2003 250,000
March 31, 2004 250,000
June 30, 2004 250,000
September 30, 2004 250,000
December 31, 2004 250,000
March 31, 2005 250,000
June 30, 2005 250,000
September 30, 2005 250,000
December 31, 2005 250,000
March 31, 2006 250,000
June 30, 2006 250,000
September 30, 2006 56,750,000
December 31, 2006 56,750,000
March 31, 2007 56,750,000
Tranche C Maturity Date 56,750,000
(b) In the event and on each occasion that any Term Loan Commitments
shall be reduced or shall expire or terminate other than as a result of the
making of a Term Loan, the installments payable on each Term Loan Repayment Date
shall be reduced pro rata by an aggregate amount equal to the amount of such
reduction, expiration or termination.
(c) To the extent not previously paid, all Tranche B Term Loans and
Tranche C Term Loans shall be due and payable on the Tranche B Maturity Date and
Tranche C Maturity Date, respectively, together with accrued and unpaid interest
on the principal amount to be paid to but excluding the date of payment.
(d) All repayments pursuant to this Section 2.11 shall be subject to
Section 2.16, but shall otherwise be without premium or penalty.
SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing, in whole or in
part, upon at least three Business Days' prior written or telecopy notice (or
telephone notice promptly confirmed by written or telecopy notice) in the case
of Eurodollar Loans, or prior written or telecopy notice (or telephone notice
promptly confirmed by written or telecopy notice) on or prior to the date of
prepayment in the case of ABR Loans, to the Administrative Agent before 11:00
a.m., New York City time; provided, however, that each partial prepayment shall
be in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000.
(b) Optional prepayments of Term Loans shall be allocated pro rata
between the then-outstanding Tranche B Term Loans and Tranche C Term Loans and
applied, at the option of the Borrower, first, in chronological order to the
installments of principal scheduled to be paid within 12 months after such
prepayment and second, ratably against the remaining scheduled installments of
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principal due in respect of the Tranche B Term Loans and Tranche C Term Loans
under Sections 2.11(a)(i) and (ii), respectively.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty.
All prepayments under this Section 2.12 shall be accompanied by accrued but
unpaid interest on the principal amount being prepaid to, but excluding, the
date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall repay or
prepay all its outstanding Revolving Credit Borrowings on the date of such
termination. In the event of any partial reduction of the Revolving Credit
Commitments, then (i) at or prior to the effective date of such reduction, the
Administrative Agent shall notify the Borrower and the Revolving Credit Lenders
of the Aggregate Revolving Credit Exposure after giving effect thereto and (ii)
if the Aggregate Revolving Credit Exposure would exceed the Total Revolving
Credit Commitment after giving effect to such reduction or termination, then the
Borrower shall, on the date of such reduction or termination, first repay or
prepay Revolving Credit Borrowings in an amount sufficient to eliminate such
excess and second, to the extent of any remaining excess (after the prepayment
of Revolving Loans), to replace outstanding Letters of Credit and/or deposit an
amount in cash in a cash collateral account established with the Collateral
Agent for the benefit of the Secured Parties.
(b) Not later than the third Business Day following the completion of
any Asset Sale, the Borrower shall apply 100% of the Net Cash Proceeds received
with respect thereto to prepay outstanding Term Loans in accordance with Section
2.13(g).
(c) In the event and on each occasion that an Equity Issuance occurs,
the Borrower shall, substantially simultaneously with (and in any event not
later than the third Business Day next following) the occurrence of such Equity
Issuance, apply 100% of the Net Cash Proceeds therefrom to prepay outstanding
Term Loans in accordance with Section 2.13(g).
(d) No later than the earlier of (i) 90 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending on December
25, 1998, and (ii) the date on which the financial statements with respect to
such period are delivered pursuant to Section 5.04(a), the Borrower shall prepay
outstanding Term Loans in accordance with Section 2.13(g) in an aggregate
principal amount equal to 50% of Excess Cash Flow for the fiscal year (or, in
the case of the fiscal year ended December 25, 1998, the portion thereof
commencing on the Closing Date and ending on December 25, 1998) then ended.
(e) In the event that any Loan Party or any subsidiary of a Loan Party
shall receive Net Cash Proceeds from the issuance or other disposition of
Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan
Party (other than Indebtedness for money borrowed permitted pursuant to Section
6.01), the Borrower shall, substantially simultaneously with (and in any event
not later than the third Business Day next following) the receipt of such Net
Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to
100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance
with Section 2.13(g).
(f) In the event that there shall occur any Casualty or Condemnation
and, to the extent that pursuant to the applicable Mortgage or Fleet Mortgage,
the Casualty Proceeds (less any required Tax Distributions) or Condemnation
Proceeds (less any required Tax Distributions), as the case may be, are required
to be used to prepay the Term Loans, then the Borrower shall apply an amount
equal to 100% of such Casualty Proceeds or Condemnation Proceeds, as the case
may be, to prepay outstanding Term Loans in accordance with Section 2.13(g).
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(g) Mandatory prepayments of outstanding Term Loans under this
Agreement shall be allocated pro rata between the then-outstanding Tranche B
Term Loans and Tranche C Term Loans, and applied, first, in chronological order
to the installments of principal scheduled to be paid within 12 months after
such prepayment and second, pro rata against the remaining scheduled
installments of principal due in respect of Tranche B Term Loans and Tranche C
Term Loans under Sections 2.11(a)(i) and (ii), respectively.
(h) The Borrower shall deliver to the Administrative Agent, (i) at the
time of each prepayment required under this Section 2.13, a certificate signed
by a Financial Officer of the Borrower setting forth in reasonable detail the
calculation of the amount of such prepayment and (ii) to the extent practicable,
at least three days prior written notice of such prepayment. Each notice of
prepayment shall specify the prepayment date, the Type of each Loan being
prepaid and the principal amount of each Loan (or portion thereof) to be
prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject
to Section 2.16, but shall otherwise be without premium or penalty.
(i) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans and Revolving Loans shall be applied, as applicable,
first to reduce outstanding ABR Term Loans and ABR Revolving Loans. Any amounts
remaining after each such application shall, at the option of the Borrower, be
applied to prepay Eurodollar Term Loans or Eurodollar Revolving Loans, as the
case may be, immediately and/or shall be deposited in the Prepayment Account (as
defined below). The Administrative Agent shall apply any cash deposited in the
Prepayment Account (i) allocable to Term Loans to prepay Eurodollar Term Loans
and (ii) allocable to Revolving Loans to prepay Eurodollar Revolving Loans, in
each case on the last day of their respective Interest Periods (or, at the
direction of the Borrower, on any earlier date) until all outstanding Term Loans
or Revolving Loans, as the case may be, have been prepaid or until all the
allocable cash on deposit with respect to such Loans has been exhausted. For
purposes of this Agreement, the term "Prepayment Account" shall mean an account
established by the Borrower with the Administrative Agent and over which the
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal for application in accordance with this paragraph
(i). The Administrative Agent will, at the request of the Borrower, invest
amounts on deposit in the Prepayment Account in Permitted Investments that
mature prior to the last day of the applicable Interest Periods of the
Eurodollar Term Borrowings or Eurodollar Revolving Borrowings to be prepaid, as
the case may be; provided, however, that (i) the Administrative Agent shall not
be required to make any investment that, in its sole judgment, would require or
cause the Administrative Agent to be in, or would result in any, violation of
any law, statute, rule or regulation and (ii) the Administrative Agent shall
have no obligation to invest amounts on deposit in the Prepayment Account if a
Default or Event of Default shall have occurred and be continuing. The Borrower
shall indemnify the Administrative Agent for any losses relating to the
investments so that the amount available to prepay Eurodollar Borrowings on the
last day of the applicable Interest Period is not less than the amount that
would have been available had no investments been made pursuant thereto. Other
than any interest earned on such investments, the Prepayment Account shall not
bear interest. Interest or profits, if any, on such investments shall be
deposited in the Prepayment Account and reinvested and disbursed as specified
above. If the maturity of the Loans has been accelerated pursuant to Article
VII, the Administrative Agent may, in its sole discretion, apply all amounts on
deposit in the Prepayment Account to satisfy any of the Obligations. The
Borrower hereby grants to the Administrative Agent, for its benefit and the
benefit of the Issuing Bank and the Lenders, a security interest in the
Prepayment Account to secure the Obligations.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of or
credit extended by any Lender or the Issuing Bank (except any such reserve
requirement which is reflected in the Adjusted LIBO Rate) or shall impose on
such Lender or the Issuing Bank or the London interbank market any other
condition affecting this
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Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein, and the result of any of the foregoing shall be to
increase the cost to such Lender or the Issuing Bank of making or maintaining
any Eurodollar Loan or increase the cost to any Lender of issuing or maintaining
any Letter of Credit or purchasing or maintaining a participation therein or to
reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise) by an
amount deemed by such Lender or the Issuing Bank to be material, then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, upon
demand such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in any
such law, rule, regulation, agreement or guideline (whether such law, rule,
regulation, agreement or guideline has been adopted) or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) or the Issuing Bank or any Lender's or the
Issuing Bank's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
has or would have the effect of reducing the rate of return on such Lender's or
the Issuing Bank's capital or on the capital of such Lender's or the Issuing
Bank's holding company, if any, as a consequence of this Agreement or the Loans
made or participations in Letters of Credit purchased by such Lender pursuant
hereto or the Letters of Credit issued by the Issuing Bank pursuant hereto to a
level below that which such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company could have achieved but for such applicability,
adoption, change or compliance (taking into consideration such Lender's or the
Issuing Bank's policies and the policies of such Lender's or the Issuing Bank's
holding company with respect to capital adequacy) by an amount reasonably deemed
by such Lender or the Issuing Bank to be material, then from time to time the
Borrower shall pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank
or such Lender's or the Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts reasonably determined by such Lender or Issuing Bank to be
necessary to compensate such Lender or the Issuing Bank or its holding company,
as applicable, as specified in paragraph (a) or (b) above shall be delivered to
the Borrower and shall be conclusive absent manifest error. The Borrower shall
pay such Lender or the Issuing Bank the amount shown as due on any such
certificate delivered by it within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation for any increased costs or reduction in amounts received or
receivable or reduction in return on capital shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation. The
protection of this Section shall be available to each Lender and the Issuing
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, rule, regulation, agreement, guideline or other change or condition
that shall have occurred or been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
ABR Loans will not thereafter (for such duration) be converted into
Eurodollar Loans), whereupon any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing
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to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for an
additional Interest Period) shall, as to such Lender only, be deemed a
request for an ABR Loan (or a request to continue an ABR Loan as such
for an additional Interest Period or to convert a Eurodollar Loan into
an ABR Loan, as the case may be), unless such declaration shall be
subsequently withdrawn; and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such
Eurodollar Loans shall be automatically converted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of (a) any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect therefor,
(ii) the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of
the Interest Period with respect to any Eurodollar Loan, in each case other than
on the last day of the Interest Period in effect therefor, or (iii) any
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be
made pursuant to a conversion or continuation under Section 2.10) not being made
after notice of such Loan shall have been given by the Borrower hereunder (any
of the events referred to in this clause (a) being called a "Breakage Event") or
(b) any default in the making of any payment or prepayment required to be made
hereunder. In the case of any Breakage Event, such loss shall include an amount
equal to the excess, as reasonably determined by such Lender, of (i) its cost of
obtaining funds for the Eurodollar Loan that is the subject of such Breakage
Event for the period from the date of such Breakage Event to the last day of the
Interest Period in effect (or that would have been in effect) for such Loan over
(ii) the amount of interest likely to be realized by such Lender in redeploying
the funds released or not utilized by reason of such Breakage Event for such
period. A certificate of any Lender setting forth any amount or amounts which
such Lender is entitled to receive pursuant to this Section 2.16 shall be
delivered to the Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as required under Section
2.15, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Loans, each payment of the Commitment Fees, each
reduction of the Term Loan Commitments or the Revolving Credit Commitments and
each conversion of any Borrowing to or continuation of any Borrowing as a
Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Lender's percentage of
such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower or any other Loan Party, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security
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or interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Loan or Loans or L/C Disbursement as a result of which the unpaid
principal portion of its Tranche B Term Loans, Tranche C Term Loans, Revolving
Loans or participations in L/C Disbursements shall be proportionately less than
the unpaid principal portion of the Tranche B Term Loans, Tranche C Term Loans,
Revolving Loans or participations in L/C Disbursements of any other Lender, it
shall be deemed simultaneously to have purchased from such other Lender at face
value, and shall promptly pay to such other Lender the purchase price for, a
participation in the Tranche B Term Loans, Tranche C Term Loans, Revolving Loans
and L/C Exposure, as the case may be of such other Lender, so that the aggregate
unpaid principal amount of the Tranche B Term Loans, Tranche C Term Loans,
Revolving Loans and L/C Exposure and participations in Tranche B Term Loans,
Tranche C Term Loans, Revolving Loans and L/C Exposure held by each Lender shall
be in the same proportion to the aggregate unpaid principal amount of all
Tranche B Term Loans, Tranche C Term Loans, Revolving Loans and L/C Exposure
then outstanding as the principal amount of its Tranche B Term Loans, Tranche C
Term Loans, Revolving Loans and L/C Exposure prior to such exercise of banker's
lien, setoff or counterclaim or other event was to the principal amount of all
Tranche B Term Loans, Tranche C Term Loans, Revolving Loans and L/C Exposure
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.18 and the payment giving
rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Borrower and
Holdings expressly consent to the foregoing arrangements and agree that any
Lender holding a participation in a Term Loan or Revolving Loan or L/C
Disbursement deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the Borrower and Holdings to such Lender by reason thereof as fully as if
such Lender had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement or
any Fees or other amounts) hereunder and under any other Loan Document not later
than 1:00 p.m., New York City time, on the date when due in immediately
available dollars, without setoff, defense or counterclaim. Each such payment
(other than Issuing Bank Fees, which shall be paid directly to the Issuing
Bank,) shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ by wire transfer.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of
interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes, provided that, if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition (but without duplication), the Borrower shall pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable
law.
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(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Each Foreign Lender shall deliver to the Borrower (with a copy to
the Administrative Agent) two copies of either United States Internal Revenue
Service Form 1001 or Form 4224, or, in the case of a Foreign Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Foreign Lender
delivers a Form W-8, a certificate representing that such Foreign Lender is not
a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder of the Borrower (within the meaning of Section 871(h)(3)(B) of the
Code) and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Foreign Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Borrower under
this Agreement or any other Loan Document. Such forms shall be delivered by each
Foreign Lender on or before the date it becomes a party to this Agreement or
designates a new lending office. In addition, each Foreign Lender shall deliver
such forms promptly upon the obsolescence, expiration or invalidity of any form
previously delivered by such Foreign Lender. Notwithstanding any other provision
of this Section 2.20(e), a Foreign Lender shall not be required to deliver any
form pursuant to this Section 2.20(e) that such Foreign Lender is not legally
able to deliver.
(f) If the Administrative Agent, a Lender or the Issuing Bank
determines, in its sole discretion, that it has received a refund of any Taxes
or Other Taxes as to which it has been indemnified by the Borrower pursuant to
this Section 2.20, it shall pay over such refund to the Borrower (but only to
the extent of indemnity payments made by the Borrower under this Section 2.20
with respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender or the Issuing
Bank, as applicable, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided, however,
that the Borrower, upon the request of the Administrative Agent or such Lender
or the Issuing Bank, as applicable, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender or the
Issuing Bank in the event the Administrative Agent or such Lender or the Issuing
Bank is required to repay such refund to such Governmental Authority. Nothing
contained in this Section 2.20 shall require the Administrative Agent or any
Lender or the Issuing Bank to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower
or any other person.
SECTION 2.21. Assignment of Commitments Under Certain Circumstances;
Duty to Mitigate. (a) In the event (i) any Lender or the Issuing Bank delivers a
certificate requesting compensation pursuant to Section 2.14, (ii) any Lender or
the Issuing Bank delivers a notice described
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in Section 2.15 or (iii) the Borrower is required to pay any additional amount
to any Lender or the Issuing Bank or any Governmental Authority on account of
any Lender or the Issuing Bank pursuant to Section 2.20, the Borrower may, at
its sole expense and effort (including with respect to the processing and
recordation fee referred to in Section 9.04(b)) but with the reasonable
assistance of the Administrative Agent, upon notice to such Lender or the
Issuing Bank and the Administrative Agent, require such Lender or the Issuing
Bank to transfer and assign, without recourse (in accordance with and subject to
the restrictions contained in Section 9.04), all of its interests, rights and
obligations under this Agreement to an assignee that shall assume such assigned
obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that (x) such assignment shall not conflict with any law,
rule or regulation or order of any court or other Governmental Authority having
jurisdiction, (y) the Borrower shall have received the prior written consent of
the Administrative Agent (and, if a Revolving Credit Commitment is being
assigned, of the Issuing Bank), which consent shall not unreasonably be
withheld, and (z) the Borrower or such assignee shall have paid to the affected
Lender or the Issuing Bank in immediately available funds an amount equal to the
sum of the principal of and interest accrued to the date of such payment on the
outstanding Loans or L/C Disbursements of such Lender or the Issuing Bank,
respectively, plus all Fees and other amounts accrued for the account of such
Lender or the Issuing Bank hereunder (including any amounts under Section 2.14
and Section 2.16); provided further that, if prior to any such transfer and
assignment the circumstances or event that resulted in such Lender's or the
Issuing Bank's claim for compensation under Section 2.14 or notice under Section
2.15 or the amounts paid pursuant to Section 2.20, as the case may be, cease to
cause such Lender or the Issuing Bank to suffer increased costs or reductions in
amounts received or receivable or reduction in return on capital, or cease to
have the consequences specified in Section 2.15, or cease to result in amounts
being payable under Section 2.20, as the case may be (including as a result of
any action taken by such Lender or the Issuing Bank pursuant to paragraph (b)
below), or if such Lender or the Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or
event or shall withdraw its notice under Section 2.15 or shall waive its right
to further payments under Section 2.20 in respect of such circumstances or
event, as the case may be, then such Lender or the Issuing Bank shall not
thereafter be required to make any such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request compensation
under Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice
described in Section 2.15 or (iii) the Borrower is required to pay any
additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section
2.20, then such Lender or the Issuing Bank shall use reasonable efforts (which
shall not require such Lender or the Issuing Bank to incur an unreimbursed loss
or unreimbursed cost or expense or otherwise take any action inconsistent with
its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any
certificate or document reasonably requested in writing by the Borrower or (y)
to assign its rights and delegate and transfer its obligations hereunder to
another of its offices, branches or affiliates, if such filing or assignment
would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable
pursuant to Section 2.20, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender or the
Issuing Bank in connection with any such filing or assignment, delegation and
transfer.
SECTION 2.22. Letters of Credit. (a) General. The Borrower may request
the issuance of a Letter of Credit for its own account or for the account of any
wholly owned Subsidiary, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any time and from time to time while the
Revolving Credit Commitments remain in effect. This Section shall not be
construed to impose an obligation upon the Issuing Bank to issue any Letter of
Credit that is inconsistent with the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to amend,
renew or extend an existing Letter of Credit), the Borrower shall hand deliver
or telecopy to the Issuing Bank and the Administrative Agent
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(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) below), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare such Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if, and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (i) the L/C Exposure shall not exceed
$25,000,000 and (ii) the Aggregate Revolving Credit Exposure shall not exceed
the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the close of
business on the earlier of the date one year after the date of the issuance of
such Letter of Credit and the date that is five Business Days prior to the
Revolving Credit Maturity Date, unless such Letter of Credit expires by its
terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit and without
any further action on the part of the Issuing Bank or the Lenders, the Issuing
Bank hereby grants to each Revolving Credit Lender, and each such Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In consideration and in furtherance of the foregoing,
each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay
to the Administrative Agent, for the account of the Issuing Bank, such Lender's
Pro Rata Percentage of each L/C Disbursement made by the Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided
in Section 2.02(f). Each Revolving Credit Lender acknowledges and agrees that
its obligation to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement by 2:00 p.m. on the same Business
Day or, if the Borrower shall have received notice of such L/C Disbursement
later than 10:00 a.m., New York City time, on any Business Day or on a day which
is not a Business Day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of
Credit or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure
from all or any of the provisions of any Letter of Credit or any Loan
Document;
(iii) the existence of any claim, setoff, defense or other
right that the Borrower, any other party guaranteeing, or otherwise
obligated with, the Borrower, any Subsidiary or other Affiliate thereof
or any other person may at any time have against the beneficiary under
any Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other
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person, whether in connection with this Agreement, any other Loan
Document or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of
the Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of the
Borrower's obligations hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the Issuing Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as possible
give telephonic notification, confirmed by telecopy, to the Administrative Agent
and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C Disbursement thereunder, provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Revolving Credit Lenders with
respect to any such L/C Disbursement. The Administrative Agent shall promptly
give each Revolving Credit Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount thereof
shall bear interest for the account of the Issuing Bank, for each day from and
including the date of such L/C Disbursement, to but excluding the earlier of the
date of payment by the Borrower or the date on which interest shall commence to
accrue thereon as provided in Section 2.02(f), at the rate per annum that would
apply to such amount if such amount were an ABR Revolving Loan.
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(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder, without affecting its rights and
obligations with respect to Letters of Credit previously issued by it. At the
time such removal or resignation shall become effective, the Borrower shall pay
all accrued and unpaid fees pursuant to Section 2.05(c)(ii). The acceptance of
any appointment as the Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrower and the Administrative Agent, and, from and after the effective
date of such agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan
Documents and (ii) references herein and in the other Loan Documents to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement and the other Loan Documents with respect to Letters of Credit issued
by it prior to such resignation or removal, but shall not be required to issue
additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Credit Lenders holding participations in
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit) thereof and of the amount
to be deposited, deposit in an account with the Collateral Agent, for the
benefit of the Revolving Credit Lenders, an amount in cash equal to the L/C
Exposure as of such date. Such deposit shall be held by the Collateral Agent as
collateral for the payment and performance of the Obligations. The Collateral
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal, over such account. Other than any interest earned on the
investment of such deposits in Permitted Investments, which investments shall be
made at the option and sole discretion of the Collateral Agent, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C
Disbursements for which it has not been reimbursed, (ii) be held for the
satisfaction of the reimbursement obligations of the Borrower for the L/C
Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding
participations in outstanding Letters of Credit representing greater than 50% of
the aggregate undrawn amount of all outstanding Letters of Credit), be applied
to satisfy the Obligations. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be returned to the
Borrower within three Business Days after all Events of Default have been cured
or waived.
ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the
Administrative Agent, the Collateral Agent, the Issuing Bank and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower and
each of the Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the
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jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and as
proposed to be conducted, (c) is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required, except
where the failure so to qualify could not reasonably be expected to result in a
Material Adverse Effect, and (d) has the power and authority to execute, deliver
and perform its obligations under each of the Loan Documents and each other
agreement or instrument contemplated hereby to which it is or will be a party
and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and performance by
each Loan Party of each of the Loan Documents, the Recapitalization Documents
and the Senior Unsecured Debt Documents, to which it is or will be a party, the
consummation of the Transactions and, in the case of the Borrower, the
borrowings hereunder (a) have been duly authorized by all requisite corporate or
limited liability company action and (b) will not (i) violate (A) any provision
of law, statute, rule or regulation, or of the articles of organization or
operating agreement or other constitutive documents or by-laws of Holdings, the
Borrower or any Subsidiary, (B) any order of any Governmental Authority or (C)
any provision of any indenture, agreement or other instrument to which Holdings,
the Borrower or any Subsidiary is a party or by which any of them or any of
their property is or may be bound, (ii) be in conflict with, result in a breach
of or constitute (alone or with notice or lapse of time or both) a default
under, or give rise to any right to accelerate or to require the prepayment,
repurchase or redemption of any obligation under any such indenture, agreement
or other instrument or (iii) result in the creation or imposition of any Lien
upon or with respect to any property or assets now owned or hereafter acquired
by Holdings, the Borrower or any Subsidiary (other than any Lien created
hereunder or under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document when executed and delivered by each Loan Party party thereto will
constitute, a legal, valid and binding obligation of such Loan Party enforceable
against such Loan Party in accordance with its terms, subject to the effects of
applicable bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights generally and equitable principles of general
applicability (regardless of whether such enforceability is considered in a
proceeding at law or in equity).
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the Transactions, except for
(a) the filing of Uniform Commercial Code financing statements and filings with
the United States Patent and Trademark Office and the United States Copyright
Office, (b) recordation of the Mortgages and the Fleet Mortgages, as the case
may be, and (c) such as have been made or obtained and are in full force and
effect.
SECTION 3.05. Financial Statements. (a) Each of the Borrower, National
Marine and VGI has heretofore furnished to the Lenders its consolidated balance
sheets and statements of income and changes in financial condition (i) as of and
for the fiscal year ended December 26, 1997 (in the case of the Borrower) and as
of and for the fiscal year ended December 31, 1997 (in the case of National
Marine and VGI), audited by and accompanied by the opinion of (x) Ernst & Young
LLP, independent public accountants in the case of the Borrower, and (y) ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP, independent public accountants in the case of National Marine and
VGI, and (ii) as of and for the fiscal quarter and the portion of the fiscal
year ended March 27, 1998 (in the case of the Borrower) and as of and for the
fiscal quarter and the portion of the fiscal year ended March 31, 1998 (in the
case of National Marine and VGI), certified by their respective chief financial
officers. Such financial statements present fairly the financial condition and
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries or National Marine and its consolidated subsidiaries, as the case
may be, as of such dates and for such periods. Such balance sheets and the notes
thereto disclose all material liabilities, direct or contingent, of the Borrower
and its consolidated Subsidiaries or National Marine and its consolidated
subsidiaries, as the case may be, as of the dates thereof. Such financial
statements were prepared in accordance with GAAP applied on a consistent basis.
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(b) The Borrower has heretofore delivered to the Lenders its unaudited
pro forma consolidated balance sheet and related statements of operations and
members' equity interest as of and for the twelve month period ended March 27,
1998, prepared giving effect to the Transactions as if they had occurred on such
date (in the case of the unaudited pro forma consolidated balance sheet) and as
of the beginning of such period (in the case of the related statements of
operations and members' equity interest). Such pro forma financial statements
have been prepared in good faith by the Borrower, based on the assumptions used
to prepare the pro forma financial information contained in the Confidential
Information Memorandum (which assumptions are believed in good faith by the
Borrower on the date hereof and on the Closing Date to be reasonable), are based
on the best information available to the Borrower as of the date of delivery
thereof, accurately reflect all adjustments required to be made to give effect
to the Transactions and present fairly on a pro forma basis the estimated
consolidated financial position of the Borrower and its consolidated
Subsidiaries as of such date, assuming that the Transactions had actually
occurred at such date.
SECTION 3.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations, condition (financial or
otherwise), contingent liabilities, prospects or material agreements of
Holdings, the Borrower and the Subsidiaries, taken as a whole, since December
31, 1997.
SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of
Holdings, the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, all its material properties and assets (including
all Mortgaged Property), except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02. Without limiting the generality of the foregoing,
except as set forth on Schedule 3.07(a) each of the Vessels has been duly
documented under the laws of the United States in the name of the Borrower or
the Subsidiary listed on Schedule 3.20(c) as the owner thereof, and no other
action is necessary to establish and perfect such entities' title to and
interest in such Vessels.
(b) Each of Holdings, the Borrower and the Subsidiaries is in
compliance with all obligations under all material leases to which it is a party
and all such leases are in full force and effect. Each of Holdings, the Borrower
and the Subsidiaries enjoys peaceful and undisturbed possession under all such
material leases.
(c) Except as set forth on Schedule 3.07(c), neither Holdings nor the
Borrower has received any notice of, nor has any knowledge of, any pending or
contemplated condemnation proceeding materially and adversely affecting the
Mortgaged Properties or any sale or disposition thereof in lieu of condemnation.
(d) Except as set forth on Schedule 3.07(d), none of Holdings, the
Borrower or any of the Subsidiaries is obligated under any right of first
refusal, option or other contractual right to sell, assign or otherwise dispose
of any Mortgaged Property or any interest therein.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing
Date a list of all Subsidiaries and the percentage ownership interest of
Holdings or the Borrower therein. The shares of capital stock or other ownership
interests so indicated on Schedule 3.08 are fully paid and non-assessable and
are owned by Holdings or the Borrower, directly or indirectly, free and clear of
all Liens (other than Liens in favor of the Collateral Agent, created under the
Security Documents) or as set forth on Schedule 3.08. Holdings owns 100% of the
issued and outstanding equity membership interests of the Borrower, free and
clear of all Liens (other than Liens in favor of the Collateral Agent, created
under the Security Documents).
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as set forth
on Schedule 3.09, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental
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Authority now pending or, to the knowledge of Holdings or the Borrower,
threatened against or affecting Holdings or the Borrower or any Subsidiary or
any business, property or rights of any such person (i) that involve any Loan
Document or the Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries or any of
their respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits) or any
restrictions of record or agreements affecting the Mortgaged Property, or is in
default with respect to any judgment, writ, injunction, decree or order of any
Governmental Authority, in each case, where such violation or default could
reasonably be expected to result in a Material Adverse Effect.
(c) Except as set forth on Schedule 3.09, certificates of occupancy and
permits to the extent required by law are in effect for each Mortgaged Property
as currently constructed, and true and complete copies of such certificates of
occupancy have been delivered to the Collateral Agent as mortgagee with respect
to each Mortgaged Property.
SECTION 3.10. Agreements. (a) None of Holdings, the Borrower or any of
the Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) None of Holdings, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of Holdings, the
Borrower or any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of the Regulations of the Board, including Regulation U or
X.
SECTION 3.12. Investment Company Act; Public Utility Holding Company
Act. None of Holdings, the Borrower or any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of
the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of Holdings, the Borrower and the
Subsidiaries has filed or caused to be filed all Federal income tax returns and
all material Federal non-income, material state, material local and material
foreign tax returns or materials required to have been filed by it and has paid
or caused to be paid all taxes shown on such returns to be due and payable by it
and all assessments received by it, except taxes that are being contested in
good faith by appropriate proceedings and for which Holdings, the Borrower or
such Subsidiary, as applicable, shall have set aside on its books adequate
reserves.
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SECTION 3.15. No Material Misstatements. None of (a) the Confidential
Information Memorandum or (b) any other information, report, financial
statement, exhibit or schedule furnished by or on behalf of Holdings or the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of any Loan Document or included therein or delivered pursuant
thereto contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were, are or
will be made, not misleading, provided that to the extent any such information,
report, financial statement, exhibit or schedule was based upon or constitutes a
forecast or projection, each of Holdings and the Borrower represents only that
it acted in good faith and utilized reasonable assumptions and due care in the
preparation of such information, report, financial statement, exhibit or
schedule.
SECTION 3.16. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under all Plans in the aggregate (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $5,000,000 the fair market value of the assets of
such Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than
$5,000,000 the fair market value of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule
3.17:
(a) The properties owned or operated by Holdings, the Borrower and the
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
(ii) require Remedial Action under, or (iii) could give rise to liability under,
Environmental Laws, which violations, Remedial Actions and liabilities, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(b) The Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last six years have been in
compliance, with all Environmental Laws and all necessary Environmental Permits
have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect;
(c) There have been no Releases or threatened Releases at, from, under
or proximate to the Properties or otherwise in connection with the operations of
the Borrower or the Subsidiaries, which Releases or threatened Releases, in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) None of Holdings, the Borrower or any of the Subsidiaries has
received any written notice of an Environmental Claim in connection with the
Properties or the operations of the Borrower or the Subsidiaries or with regard
to any person whose liabilities for environmental matters Holdings, the Borrower
or the Subsidiaries has retained or assumed, in whole or in part, contractually,
by operation of law or otherwise, which, in the aggregate, could reasonably be
expected to result in a Material Adverse Effect, nor do Holdings, the Borrower
or the Subsidiaries have reason to believe that any such notice will be received
or is being threatened; and
(e) Hazardous Materials have not been transported from the Properties,
nor have Hazardous Materials been generated, treated, stored or disposed of at,
on or under any of the Properties in a manner that could give rise to liability
under any Environmental Law, nor have the Borrower or the Subsidiaries retained
or assumed any liability, contractually, by operation of law or otherwise, with
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respect to the generation, treatment, storage or disposal of Hazardous
Materials, which transportation, generation, treatment, storage or disposal, or
retained or assumed liabilities, in the aggregate, could reasonably be expected
to result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and
correct description of all insurance maintained by the Borrower or by the
Borrower for its Subsidiaries as of the date hereof and the Closing Date. As of
each such date, such insurance is in full force and effect and all premiums have
been duly paid. The Borrower and its Subsidiaries have insurance in such amounts
and covering such risks and liabilities as are in accordance with normal
industry practice.
SECTION 3.19. Security Documents. (a) The Pledge Agreement is effective
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Collateral Agent and for so long as the Collateral Agent
continues to hold such Collateral, the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors thereunder in such Collateral, in each case prior and
superior in right to any other person.
(b) The Security Agreement is effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid
and enforceable security interest in the Collateral (as defined in the Security
Agreement) and, when financing statements in appropriate form are filed in the
offices specified on Schedule 6 to the Perfection Certificate, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property, as defined in the Security Agreement), in
each case prior and superior in right to any other person, other than with
respect to Liens expressly permitted by Section 6.02.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in the registered
Intellectual Property (as defined in the Security Agreement), in each case prior
and superior in right to any other person (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United
States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the grantors after
the date hereof).
(d) The Mortgages are effective to create in favor of the Collateral
Agent, for the ratable benefit of the Secured Parties, a legal, valid and
enforceable Lien on all of the Loan Parties' right, title and interest in and to
the Mortgaged Property thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.19(d), the Mortgages
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Loan Parties in such Mortgaged Property and the
proceeds thereof, in each case prior and superior in right to any other person,
other than with respect to the rights of persons pursuant to Liens expressly
permitted by Section 6.02.
(e) The Fleet Mortgages are effective to create a legal, valid and
enforceable Lien on all of the Loan Parties' right, title and interest in and to
the Vessels specified therein, and when the Fleet Mortgages are recorded in the
National Vessel Documentation Center of the U.S. Coast Guard, the Fleet
Mortgages shall constitute a first preferred fleet mortgage and a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Vessels and the proceeds thereof, in each case prior
and superior in right to any other person, other than with respect to the rights
of persons pursuant to Liens expressly permitted by Section 6.02.
(f) The Assignments of Insurances are effective to create in favor of
the Collateral Agent for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the
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Insurances and the Requisition Compensation (each as defined in the Assignments
of Insurances) and, when notices of assignment in appropriate form are given, in
respect of Insurances, to all brokers, insurance companies and underwriters with
or through whom any policies or entries relating to the Insurances or any part
thereof are effected, and, in respect of Requisition Compensation, a notice of
assignment thereof is given to each person from whom any Requisition
Compensation may be due, the Assignments of Insurances shall constitute fully
perfected Liens on, and security interests in, all right, title and interest of
the grantors thereunder in such Insurances or Requisition Compensation (as the
case may be), in each case prior and superior in right to any other person.
SECTION 3.20. Location of Real Property and Leased Premises and List of
Towboats, Drydocks and Barges. (a) Schedule 3.20(a) lists completely and
correctly as of the Closing Date all real property owned by the Loan Parties and
the addresses thereof, other than certain real property of de minimis value. The
Loan Parties own in fee all the real property set forth on Schedule 3.20(a).
(b) Schedule 3.20(b) lists completely and correctly as of the Closing
Date all real property leased by the Loan Parties and the addresses thereof,
other than certain real property of de minimis value. The Loan Parties have
valid leases in all the real property set forth on Schedule 3.20(b).
(c) Schedule 3.20(a) and 3.20(c) list completely and correctly as of
the Closing Date all towboats, drydocks and barges owned by the Loan Parties.
SECTION 3.21. Labor Matters. Except as set forth on Schedule 3.21, as
of the date hereof and the Closing Date, there are no strikes, lockouts or
slowdowns against Holdings, the Borrower or any Subsidiary pending or, to the
knowledge of Holdings or the Borrower, threatened. The hours worked by and
payments made to employees of Holdings, the Borrower and the Subsidiaries have
not been in material violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law dealing with such matters. All
payments due from Holdings, the Borrower or any Subsidiary, or for which any
claim may be made against Holdings, the Borrower or any Subsidiary, on account
of wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of Holdings, the Borrower or such
Subsidiary. The consummation of the Transactions will not give rise to any right
of termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary is bound.
SECTION 3.22. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan made on the Closing Date and after giving effect to the application
of the proceeds of such Loans, (a) the fair value of the assets of each Loan
Party, at a fair valuation, will exceed its debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the property of
each Loan Party will be greater than the amount that will be required to pay the
probable liability of its debts and other liabilities, subordinated, contingent
or otherwise, as such debts and other liabilities become absolute and matured;
(c) each Loan Party will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Loan Party will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted following the Closing Date.
SECTION 3.23. Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (a) the Borrower's
computer systems and (b) equipment containing embedded microchips (including
systems and equipment supplied by others) and the testing of all such systems
and equipment, as so reprogrammed, is expected in good faith to be completed by
June 30, 1999. The cost to the Borrower of such reprogramming and testing and of
the reasonably foreseeable consequences of year 2000 to the Borrower (including
reprogramming errors and the failure of others' systems or equipment) could not
reasonably be expected to result in an Event of Default or a Material Adverse
Effect. Except for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information systems of
the Borrower and its Subsidiaries
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are and, with ordinary course upgrading and maintenance, will continue for the
term of this Agreement to be, sufficient to permit the Borrower to conduct is
business without Material Adverse Effect.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans and of the Issuing Bank to
issue Letters of Credit hereunder are subject to the satisfaction of the
following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing,
including on the date of each issuance, amendment, extension or renewal of a
Letter of Credit (each such event being called a "Credit Event"), but excluding
any conversion or continuation of a Borrowing in accordance with Section 2.10:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 (or such notice shall have been deemed
given in accordance with Section 2.03) or, in the case of the issuance,
amendment, extension or renewal of a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance,
amendment, extension or renewal of such Letter of Credit as required by Section
2.22(b).
(b) The representations and warranties set forth in Article III hereof
shall be true and correct in all material respects on and as of the date of such
Credit Event with the same effect as though made on and as of such date, except
to the extent such representations and warranties expressly relate to an earlier
date.
(c) No Event of Default or Default shall have occurred and be
continuing.
Each Credit Event shall be deemed to constitute a representation and
warranty by the Borrower and Holdings on the date of such Credit Event as to the
matters specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Bank, a favorable written opinion
of (i) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for Holdings and the Borrower,
substantially to the effect set forth in Exhibit J-1 and (ii) each
local or special counsel listed on Schedule 4.02(a), substantially to
the effect set forth in Exhibits J-2 and J-3, in each case (A) dated
the Closing Date, (B) addressed to the Issuing Bank, the Administrative
Agent and the Lenders, and (C) covering such other matters relating to
the Loan Documents and the Transactions as the Administrative Agent
shall reasonably request, and Holdings and the Borrower hereby request
such counsel to deliver such opinions.
(b) All legal matters incident to this Agreement, the
Borrowings and extensions of credit hereunder and the other Loan
Documents shall be reasonably satisfactory to the Lenders, to the
Issuing Bank and to Cravath, Swaine & ▇▇▇▇▇, counsel for the
Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of
the articles of organization, including all amendments thereto, of each
Loan Party, certified as of a recent date by the Secretary of State of
the state of its organization, and a certificate as to the good
standing of each Loan Party as of a recent date, from such Secretary of
State; (ii) a certificate of the Secretary or Assistant Secretary of
each Loan Party dated the Closing Date and certifying (A) that attached
thereto is a true and complete copy of the operating agreement and
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by-laws, if any, of such Loan Party as in effect on the Closing Date
and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors or
analogous body of such Loan Party authorizing the execution, delivery
and performance of the Loan Documents to which such person is a party
and, in the case of the Borrower, the borrowings hereunder, and that
such resolutions have not been modified, rescinded or amended and are
in full force and effect, (C) that the articles of organization or
operating agreement, as the case may be, of such Loan Party have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above,
and (D) as to the incumbency and specimen signature of each officer
executing any Loan Document or any other document delivered in
connection herewith on behalf of such Loan Party; (iii) a certificate
of another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to
(ii) above; and (iv) such other documents as the Lenders, the Issuing
Bank or Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent,
may reasonably request.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of the Borrower, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of Section 4.01.
(e) The Administrative Agent shall have received all Fees and
other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the
Borrower hereunder or under any other Loan Document.
(f) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in
full force and effect, and all the outstanding Capital Stock of the
Borrower and the Subsidiaries shall have been duly and validly pledged
thereunder to the Collateral Agent for the ratable benefit of the
Secured Parties and certificates representing such Capital Stock,
accompanied by instruments of transfer and stock powers endorsed in
blank, shall be in the actual possession of the Collateral Agent,
provided that (i) neither the Borrower nor any Domestic Subsidiary
shall be required to pledge more than 65% of the Voting Stock of any
Foreign Subsidiary (or any of the Capital Stock of either Non-Pledged
Foreign Subsidiary) and (ii) no Foreign Subsidiary shall be required to
pledge any of its assets, including, without limitation, the Capital
Stock of any of its Foreign Subsidiaries.
(g) The Security Agreement shall have been duly executed by
the Loan Parties party thereto and shall have been delivered to the
Collateral Agent and shall be in full force and effect on such date and
each document (including each Uniform Commercial Code financing
statement) required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded in order to
create in favor of the Collateral Agent for the benefit of the Secured
Parties a valid, legal and perfected first-priority security interest
in and lien on the Collateral (subject to any Lien expressly permitted
by Section 6.02) described in such agreement shall have been delivered
to the Collateral Agent.
(h) The Collateral Agent shall have received the results of a
search of the Uniform Commercial Code (or equivalent filings) filings
made with respect to the Loan Parties in the states (or other
jurisdictions) in which the chief executive office of each such person
is located, any offices of such persons in which records have been kept
relating to Accounts and the other jurisdictions in which Uniform
Commercial Code filings (or equivalent filings) are to be made pursuant
to the preceding paragraph, together with copies of the financing
statements (or similar documents) disclosed by such search, and
accompanied by evidence satisfactory to the Collateral Agent that the
Liens indicated in any such financing statement (or similar document)
would be permitted under Section 6.02 or have been released.
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(i) The Collateral Agent shall have received a Perfection
Certificate with respect to the Loan Parties dated the Closing Date and
duly executed by a Responsible Officer of the Borrower.
(j)(i) Each of the Security Documents, in form and substance
satisfactory to the Lenders, relating to each of the Mortgaged
Properties shall have been duly executed by the parties thereto and
delivered to the Collateral Agent and shall be in full force and
effect, (ii) each of such Mortgaged Properties shall not be subject to
any Lien other than those permitted under Section 6.02, (iii) each of
such Security Documents shall have been filed and (other than the Fleet
Mortgages) recorded in the recording office as specified on Schedule
3.19(d) (or a lender's title insurance commitment, in form and
substance reasonably acceptable to the Collateral Agent, insuring such
Security Document as a first lien on such Mortgaged Property (subject
to any Lien permitted by Section 6.02) shall have been received by the
Collateral Agent) or in the case of the Fleet Mortgages, with the
National Vessel Documentation Center of the United States Coast Guard
and, in connection therewith, the Collateral Agent shall have received
evidence satisfactory to it of each such filing and recordation and
(iv) the Collateral Agent shall have received such other documents,
including, in the case of real property, a commitment for a policy or
policies of title insurance issued by a nationally recognized title
insurance company, together with such endorsements, coinsurance and
reinsurance as may be reasonably requested by the Collateral Agent and
the Lenders, insuring the Mortgages as valid first liens on the
Mortgaged Properties, free of Liens other than those permitted under
Section 6.02, together with such surveys, abstracts, appraisals and
legal opinions required to be furnished pursuant to the terms of the
Mortgages or as reasonably requested by the Collateral Agent or the
Lenders.
(k) Each of the Parent Guarantee Agreement and the Subsidiary
Guarantee Agreement shall have been duly executed by the parties
thereto, shall have been delivered to the Collateral Agent and shall be
in full force and effect.
(l) The Indemnity, Subrogation and Contribution Agreement
shall have been duly executed by the parties thereto, shall have been
delivered to the Collateral Agent and shall be in full force and
effect.
(m) The LLC Agreement shall have been duly executed by the
parties thereto, shall have been delivered to the Collateral Agent and
shall be in full force and effect.
(n) The Administrative Agent shall have received a copy of, or
a certificate as to coverage under, the insurance policies required by
Section 5.02 and the applicable provisions of the Security Documents,
each of which shall be endorsed or otherwise amended to include a
"standard" or "New York" lender's loss payable endorsement and to name
the Collateral Agent as additional insured, in form and substance
reasonably satisfactory to the Administrative Agent.
(o) The Administrative Agent shall have received an
environmental assessment report in form, scope and substance reasonably
satisfactory to the Lenders, from Strata Environmental, as to any
environmental hazards, liabilities or Remedial Action to which the
Borrower or any of the Subsidiaries may be subject and the Lenders
shall be reasonably satisfied with the nature and cost of any such
hazards, liabilities or Remedial Action and with the Borrower's plans
with respect thereto.
(p) None of the Recapitalization Documents and the other
applicable agreements relating to the Transactions shall have been
amended, waived or otherwise modified in any material respect adverse
to the Lenders, the Collateral Agent or the Administrative Agent
without the approval of the Required Lenders, which approval shall not
be unreasonably withheld. The Transactions shall have been consummated
or shall be consummated
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simultaneously with the initial Credit Event in accordance with the
terms and conditions of the Recapitalization Documents and applicable
law.
(q) The Lenders shall be reasonably satisfied with (i) the
organizational and capital structure of Holdings and its subsidiaries
and (ii) all legal, tax and accounting matters relating to the
Transactions. The aggregate amount of fees and expenses (including
underwriting discounts and commissions) payable or otherwise borne by
Holdings, the Borrower and its Subsidiaries in connection with the
Transactions shall not exceed $25,000,000.
(r) The Borrower shall have received at least $300,000,000 in
gross cash proceeds from the issuance of the Senior Unsecured Notes in
a public offering or an offering made pursuant to the terms and
conditions of Rule 144A of the Securities Act of 1933, as in effect on
the date hereof. The terms and conditions of the Senior Unsecured Debt
Documents (including, without limitation, the interest rate, maturity,
priority provisions, covenants and events of default) shall be
reasonably satisfactory in all material respects to the Lenders.
(s) Holdings shall have received at least $60,000,000 in gross
cash proceeds from the Equity Contribution and shall have applied the
same as provided in the Recapitalization Documents. The terms and
conditions of the Senior Preferred Interests (including the "change in
control put" provisions thereof) and Holdings' other equity membership
interests shall be reasonably satisfactory in all respects to the
Administrative Agent.
(t) The Lenders shall have received (i) financial projections
for a period of ten years following the Closing Date, as prepared by
management of the Borrower, reflecting the Transactions and the other
transactions contemplated hereby and including the written assumptions
on which such projections were based, in each case in form and
substance reasonably satisfactory to the Administrative Agent, (ii)
audited financial statements for the 1995, 1996 and 1997 fiscal years
of each of the Borrower, NBL and National Marine, which financial
statements shall not be materially inconsistent with the forecasts for
such years previously provided to the Lenders, and (iii) pro forma
consolidated financial statements of the Borrower as of March 27, 1998
and for the twelve month period then ended, after giving effect to the
Transactions and the consummation of the other transactions
contemplated hereby, which shall not be materially inconsistent with
the projections previously provided to the Lenders.
(u) After giving effect to the Transactions and the other
transactions contemplated hereby, Holdings and its subsidiaries shall
have outstanding no Indebtedness, preferred stock or preferred
membership interests other than (i) Indebtedness incurred under the
Loan Documents, (ii) the Senior Unsecured Notes, (iii) the Junior
Preferred Interests, (iv) the Senior Preferred Interests and (v) other
Indebtedness permitted under Section 6.01(a).
(v) The Lenders shall have received appraisals, satisfactory
in form and substance to the Administrative Agent, with respect to the
fleet of barges, towboats and other marine equipment owned by the
Borrower or its subsidiaries, as the Administrative Agent shall
reasonably request.
(w) The Lenders shall have received a solvency letter from
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, in form and substance reasonably
satisfactory to the Lenders, as to the solvency of Holdings and its
subsidiaries on a consolidated basis after giving effect to the
Transactions and the consummation of the other transactions
contemplated hereby.
(x) All requisite Governmental Authorities and third parties
shall have approved or consented to the Transactions and the other
transactions contemplated hereby to the extent required, all applicable
appeal periods shall have expired and there shall be no governmental or
judicial action, actual or threatened, that has a reasonable likelihood
of restraining,
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preventing or imposing materially burdensome conditions on the
Transactions or the other transactions contemplated hereby.
(y) The Assignments of Insurances shall have been duly
executed by the Loan Parties party thereto and shall have been
delivered to the Collateral Agent and shall be in full force and
effect, and each notice of assignment required by law to be given to
brokers, insurance companies and underwriters with or through whom any
policies relating to the Insurances described in such assignments or
any part thereof have been effected in order to create in favor of the
Collateral Agent for the benefit of the Secured Parties valid, legal
and perfected first-priority security interests in and liens on the
Insurances (subject to Liens, if any, expressly permitted by Section
6.02(b)), shall have been given.
ARTICLE V
Affirmative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts then due and
payable under any Loan Document (other than wholly contingent indemnification
obligations) shall have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed
in full or cash collateralized to the satisfaction of the Administrative Agent
and the Issuing Bank, unless the Required Lenders shall otherwise consent in
writing, each of Holdings and the Borrower will, and will cause each of the
Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence, except as otherwise expressly permitted under
Section 6.05.
(b) Do or cause to be done all things necessary to obtain, preserve,
renew, extend and keep in full force and effect in all material respects the
rights, licenses, permits, franchises, authorizations, patents, copyrights,
trademarks and trade names material to the conduct of its consolidated business;
maintain and operate such business in substantially the manner in which it is
presently conducted and operated; comply in all material respects with all
applicable laws, rules, regulations (including any zoning, building,
Environmental Law, ordinance, code or approval or any building permits or any
restrictions of record or agreements affecting the Mortgaged Properties) and
decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted, except where such non-compliance could not reasonably be
expected to result in a Material Adverse Effect; and, except in the case of
sales of assets permitted pursuant to Section 6.05 or a Casualty or
Condemnation, at all times maintain and preserve all property material to the
conduct of such business and keep in all material respects such property in good
repair, working order and condition, normal wear and tear excepted, and from
time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
SECTION 5.02. Insurance. In the case of the Borrower and each
Subsidiary:
(a) Keep its insurable properties adequately insured at all times by
financially sound and reputable insurers; maintain such other insurance, to such
extent and against such risks, including fire and other risks insured against by
extended coverage, in each case as is customary with companies in the same or
similar businesses operating in the same or similar locations, including public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or
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in connection with the use of any properties owned, occupied or controlled by
it; and maintain such other insurance as may be required by law.
(b) Cause all such policies to be endorsed or otherwise amended to
include a "standard" or "New York" lender's loss payable endorsement, in form
and substance satisfactory to the Administrative Agent and the Collateral Agent,
which endorsement shall provide that, from and after the Closing Date, if the
insurance carrier shall have received written notice from the Administrative
Agent or the Collateral Agent of the occurrence of an Event of Default, the
insurance carrier shall, during the continuance of such Event of Default pay all
proceeds otherwise payable to the Borrower or the Loan Parties under such
policies directly to the Collateral Agent; cause all such policies to provide
that neither the Borrower, the Administrative Agent, the Collateral Agent nor
any other party shall be a coinsurer thereunder and to contain a "Replacement
Cost Endorsement", without any deduction for depreciation, and such other
provisions as the Administrative Agent or the Collateral Agent may reasonably
require from time to time to protect their interests; deliver original or
certified copies of all such policies to the Collateral Agent; cause each such
policy to provide that it shall not be canceled, modified or not renewed (i) by
reason of nonpayment of premium upon not less than 10 days' prior written notice
thereof by the insurer to the Administrative Agent and the Collateral Agent
(giving the Administrative Agent and the Collateral Agent the right to cure
defaults in the payment of premiums) or (ii) for any other reason upon not less
than 30 days' prior written notice thereof by the insurer to the Administrative
Agent and the Collateral Agent; deliver to the Administrative Agent and the
Collateral Agent, prior to the cancelation, modification or nonrenewal of any
such policy of insurance, a copy of a renewal or replacement policy (or other
evidence of renewal of a policy previously delivered to the Administrative Agent
and the Collateral Agent) together with evidence satisfactory to the
Administrative Agent and the Collateral Agent of payment of the premium
therefor.
(c) If at any time the area in which the Premises (as defined in the
Mortgages) are located is designated (i) a "flood hazard area" in any Flood
Insurance Rate Map published by the Federal Emergency Management Agency (or any
successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time
to time require, and otherwise comply with the National Flood Insurance Program
as set forth in the Flood Disaster Protection Act of 1973, as it may be amended
from time to time, or (ii) a "Zone 1" area, obtain earthquake insurance in such
total amount as the Administrative Agent, the Collateral Agent or the Required
Lenders may from time to time reasonably require.
(d) With respect to any Mortgaged Property, carry and maintain
comprehensive general liability insurance including the "broad form CGL
endorsement" and coverage on an occurrence basis against claims made for
personal injury (including bodily injury, death and property damage) and
umbrella liability insurance against any and all claims, in no event for a
combined single limit of less than $25,000,000, naming the Collateral Agent as
an additional insured, on forms satisfactory to the Collateral Agent.
(e) Notify the Administrative Agent and the Collateral Agent
immediately whenever any separate insurance concurrent in form or contributing
in the event of loss with that required to be maintained under this Section 5.02
is taken out by the Borrower; and promptly deliver to the Administrative Agent
and the Collateral Agent a duplicate original copy of such policy or policies.
(f) Without limiting the generality of the foregoing, keep the Vessels
insured in accordance with the insurance requirements of the Fleet Mortgages.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other
obligations promptly and in accordance with their terms and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its property,
before the same shall become delinquent or in default, as well as all lawful
claims for labor, materials and supplies or otherwise that, if unpaid, might
give rise to a Lien (other than any Lien permitted under Section 6.02) upon such
properties or any part thereof; provided, however, that such
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payment and discharge shall not be required with respect to any such tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good faith by appropriate proceedings and the Borrower
shall have set aside on its books adequate reserves with respect thereto in
accordance with GAAP and such contest operates to suspend collection of the
contested obligation, tax, assessment or charge and enforcement of a Lien and,
in the case of a Mortgaged Property, there is no risk of forfeiture of such
property.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated balance sheet and related statements of operations,
members' equity interest and cash flows showing the financial condition
of the Borrower and its consolidated Subsidiaries as of the close of
such fiscal year and the results of its operations and the operations
of such Subsidiaries during such year, all audited by Coopers & ▇▇▇▇▇▇▇
L.L.P. or other independent public accountants of recognized national
standing reasonably acceptable to the Required Lenders and accompanied
by an opinion of such accountants (which shall not be qualified in any
material respect) to the effect that such consolidated financial
statements fairly present the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet and
related statements of operations, members' equity interest and cash
flows showing the financial condition of the Borrower and its
consolidated Subsidiaries as of the close of such fiscal quarter and
the results of its operations and the operations of such Subsidiaries
during such fiscal quarter and the then elapsed portion of the fiscal
year, all certified by one of its Financial Officers as fairly
presenting in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements
under sub-paragraph (a) or (b) above, a letter of the accounting firm
or certificate of the Financial Officer reporting on or certifying such
statements (which letter, when furnished by an accounting firm, may be
limited to accounting matters and disclaim responsibility for legal
interpretations) (i) reporting that they are unaware that any Event of
Default has occurred, in the case of the accounting firm, or certifying
that no Event of Default or Default has occurred, in the case of the
Financial Officer or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto and (ii)
setting forth computations in reasonable detail satisfactory to the
Administrative Agent demonstrating compliance with the covenants
contained in Sections 6.10, 6.11 and 6.12;
(d) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders, as the case
may be;
(e) prior to the beginning of each fiscal year, a copy of the
budget for its consolidated balance sheet and related statements of
income and cash flows for each quarter of such fiscal year; and
(f) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
Holdings, the Borrower or any Subsidiary, or
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compliance with the terms of any Loan Document, as the Administrative
Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice of
the following:
(a) the occurrence of any Event of Default or Default,
specifying the nature and extent thereof and the corrective action (if
any) taken or proposed to be taken with respect thereto;
(b) the filing or commencement of, or any written threat or
notice of intention of any person to file or commence, any action, suit
or proceeding, whether at law or in equity or by or before any
Governmental Authority, against Holdings or any of its Subsidiaries
that could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $1,000,000; and
(d) any development that has resulted in, or could reasonably
be expected to result in, a Material Adverse Effect.
SECTION 5.06. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made of
all dealings and transactions in relation to its business and activities. Each
Loan Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of Holdings, the Borrower
or any Subsidiary at reasonable times and upon reasonable notice and as often as
reasonably requested, but in no event more than four times per fiscal year
unless an Event of Default shall have occurred and be continuing, and to make
extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to discuss
the affairs, finances and condition of Holdings, the Borrower or any Subsidiary
with the officers thereof and independent accountants therefor; provided,
however, that, unless a Default or Event of Default shall have occurred and be
continuing, in no event shall the Administrative Agent or any Lender or any of
their respective designees contact any customer or supplier of the Borrower or
any Subsidiary regarding this Agreement and the Indebtedness hereunder without
the prior consent of the Borrower.
SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in the
preamble to this Agreement.
SECTION 5.08. Compliance with Environmental Laws. Except for any
non-compliance that could not reasonably be expected to result in a Material
Adverse Effect, comply, and use reasonable efforts to cause all lessees and
other persons occupying its Properties to comply, in all material respects with
all Environmental Laws and Environmental Permits applicable to its operations
and Properties; obtain and renew all material Environmental Permits necessary
for its operations and Properties; and conduct any Remedial Action in accordance
with Environmental Laws; provided, however, that none of Holdings, the Borrower
or any of the Subsidiaries shall be required to undertake any Remedial Action to
the extent that its obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect to
such circumstances.
SECTION 5.09. Preparation of Environmental Reports. If a Default caused
by reason of a breach of Section 3.17 or 5.08 shall have occurred and be
continuing, at the request of the Required Lenders through the Administrative
Agent, provide to the Lenders within 45 days (or such longer period as is
reasonably required in the circumstances) after such request, at the expense of
the
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Borrower, an environmental site assessment report with respect to the subject
matter of such breach prepared by an environmental consulting firm reasonably
acceptable to the Administrative Agent indicating, where appropriate under the
circumstances, the estimated cost of any compliance or Remedial Action in
connection with such breach.
SECTION 5.10. Further Assurances. Execute any and all further
documents, financing statements, agreements and instruments, and take all
further action (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust) that may be required under applicable
law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions
contemplated by the Loan Documents and in order to grant, preserve, protect and
perfect the validity and first priority of the security interests created or
intended to be created by the Security Documents. The Borrower will cause any
subsequently acquired or organized Domestic Subsidiary to execute a Subsidiary
Guarantee Agreement, Indemnity Subrogation and Contribution Agreement and each
applicable Security Document in favor of the Collateral Agent, provided that no
such Domestic Subsidiary shall be required to pledge more than 65% of the Voting
Stock of any Foreign Subsidiary or any of the Capital Stock of either
Non-Pledged Foreign Subsidiary. In addition, from time to time, the Borrower
will, at its cost and expense, promptly secure the Obligations by pledging or
creating, or causing to be pledged or created, perfected security interests with
respect to such of its assets and properties as the Administrative Agent or the
Required Lenders shall designate (it being understood that it is the intent of
the parties that the Obligations shall be secured by, among other things,
substantially all the assets of the Borrower (including real and other
properties acquired subsequent to the Closing Date)), provided that the Borrower
shall not be required to pledge more than 65% of the Voting Stock of any Foreign
Subsidiary or any of the Capital Stock of either Non-Pledged Foreign Subsidiary.
Such security interests and Liens will be created under the Security Documents
and other security agreements, mortgages, deeds of trust and other instruments
and documents in form and substance satisfactory to the Collateral Agent, and
the Borrower shall deliver or cause to be delivered to the Lenders all such
instruments and documents (including legal opinions, title insurance policies
and lien searches) as the Collateral Agent shall reasonably request to evidence
compliance with this Section. The Borrower agrees to provide such evidence as
the Collateral Agent shall reasonably request as to the perfection and priority
status of each such security interest and Lien.
ARTICLE VI
Negative Covenants
Each of Holdings and the Borrower covenants and agrees with each Lender
that until the Commitments have been terminated and the principal of and
interest on each Loan, all Fees and all other expenses or amounts then due and
payable under any Loan Document (other than wholly contingent indemnification
obligations) have been paid in full and all Letters of Credit have been canceled
or have expired and all amounts drawn thereunder have been reimbursed in full or
cash collateralized to the satisfaction of the Administrative Agent and the
Issuing Bank, unless the Required Lenders shall otherwise consent in writing,
neither Holdings nor the Borrower will, nor will they cause or permit any of the
Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date
hereof and set forth in Schedule 6.01;
(b) Indebtedness created hereunder and under the other Loan
Documents;
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(c) the Senior Unsecured Notes and the Guarantees thereof (or
the notes exchanged therefor pursuant to and in accordance with the
Senior Unsecured Debt Documents);
(d) Indebtedness consisting of purchase money Indebtedness or
Capital Lease Obligations incurred in the ordinary course of business
after the Closing Date to finance or refinance Consolidated Capital
Expenditures, provided that (A) a description of the assets financed
thereby shall have been furnished to the Administrative Agent for any
assets for which the purchase price is greater than $750,000, (B) the
aggregate principal amount of any Indebtedness or Capital Lease
Obligations incurred pursuant to this paragraph (d) outstanding at any
time shall not exceed $25,000,000 and (C) the sum of the aggregate
principal amount of all Indebtedness or Capital Lease Obligations
incurred by Foreign Subsidiaries pursuant to this paragraph (d) and
unsecured Indebtedness incurred by Foreign Subsidiaries pursuant to
paragraph (l) below and, in each case outstanding at any time, shall
not exceed $25,000,000;
(e) intercompany loans and advances permitted by Section
6.04(c) and Section 6.04(l);
(f) Indebtedness of the Borrower or any Subsidiary to
Holdings, provided that such Indebtedness (A) is subordinated to the
prior payment in full of the Obligations on terms satisfactory to the
Administrative Agent and (B) is evidenced by an intercompany note
pledged by Holdings to the Collateral Agent pursuant to the Pledge
Agreement for the benefit of the Secured Parties;
(g) ordinary course Interest Rate Protection Agreements and
ordinary course, non-speculative foreign exchange and commodity
protection agreements;
(h) Indebtedness arising out of judgments or awards (other
than any judgment that is described in clause (i) of Article VII and
constitutes a Default or Event of Default thereunder) in respect of
which the Borrower shall in good faith be prosecuting an appeal or
proceedings for review and in respect of which it shall have secured a
subsisting stay of execution pending such appeal or proceedings for
review, provided that the Borrower shall have set aside on its books
adequate reserves, in accordance with GAAP, with respect to such
judgment or award;
(i) Indebtedness under performance bonds incurred in the
ordinary course of business;
(j) in the case of the Borrower and the Subsidiary Guarantors,
Indebtedness the net proceeds of which are used substantially
concurrently with the incurrence thereof to refinance the Senior
Unsecured Notes so long as (i) such refinancing Indebtedness is in an
aggregate principal amount, or, if issued at a discount, the issue
price is, not greater than the aggregate principal amount of the
Indebtedness being refinanced plus the amount of any premiums required
to be paid thereon, the amount of accrued and unpaid interest thereon
and the fees and expenses incurred in connection with such refinancing,
(ii) such Indebtedness has a final maturity no later than and a
weighted average life no longer than than the Indebtedness being
refinanced and (iii) the covenants, events of default and other
provisions thereof (including any Guarantees thereof) shall be, in the
aggregate, no less favorable to the Lenders than those contained in the
Indebtedness being refinanced;
(k) Indebtedness issued upon the exchange of Senior Preferred
Interests in accordance with the LLC Agreement as in effect on the
Closing Date without giving effect to any subsequent amendment,
modification or supplement to the terms thereof; and
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(l) additional unsecured Indebtedness in an aggregate amount
at any time outstanding not exceeding $25,000,000, provided that the
sum of the aggregate principal amount of all Indebtedness incurred by a
Foreign Subsidiary pursuant to this paragraph (l) and Indebtedness and
Capital Lease Obligations incurred by Foreign Subsidiaries pursuant to
paragraph (d) above and, in each case, outstanding at any time shall
not exceed $25,000,000.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien
on any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its
Subsidiaries existing on the date hereof and set forth in Schedule
6.02, provided that such Liens shall secure only those obligations
which they secure on the date hereof and refinancings thereof which do
not increase the outstanding principal amount thereof;
(b) any Lien created under the Loan Documents or permitted
under the Fleet Mortgages;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary, provided that
(i) such Lien is not created in contemplation of or in connection with
such acquisition, (ii) such Lien does not apply to any other property
or assets of the Borrower or any Subsidiary, (iii) such Lien does not
(A) materially interfere with the use, occupancy and operation of any
Mortgaged Property, (B) materially reduce the fair market value of such
Mortgaged Property but for such Lien or (C) result in any material
increase in the cost of operating, occupying or owning or leasing such
Mortgaged Property;
(d) Liens for taxes not yet due or which are being contested
in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising, in the case of such other like
Liens, in the ordinary course of business and securing obligations that
are not due and payable or which are being contested in compliance with
Section 5.03;
(f) pledges and deposits made in the ordinary course of
business in compliance with workmen's compensation, unemployment
insurance and other social security laws or regulations;
(g) deposits to secure the performance of bids, trade
contracts (other than for Indebtedness), leases (other than Capital
Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way,
restrictions on use of real property and other similar encumbrances
incurred, in the case of such other similar encumbrances, in the
ordinary course of business which, in the aggregate, are not
substantial in amount and do not materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;
(i) purchase money security interests in real property,
improvements thereto or equipment hereafter acquired (or, in the case
of improvements, constructed) by the Borrower or any Subsidiary,
provided that (i) such security interests secure Indebtedness permitted
by Section 6.01(d), (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (iii) the Indebtedness secured thereby
does not exceed 85% of the lesser of the cost or the fair market value
of such
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real property, improvements or equipment at the time of such
acquisition (or construction) (or if such Indebtedness exceeds such 85%
limit, such Indebtedness is non-recourse to Holdings, the Borrower and
the Subsidiaries) and (iv) such security interests do not apply to any
other property or assets of the Borrower or any Subsidiary;
(j) Liens securing appeal bonds or arising out of judgments or
awards (other than any judgment that is described in clause (i) of
Article VII and constitutes a Default or Event of Default thereunder)
in respect of which the Borrower shall in good faith be prosecuting an
appeal or proceedings for review and in respect of which it shall have
secured a subsisting stay of execution pending such appeal or
proceedings for review, provided that the Borrower shall have set aside
on its books adequate reserves, in accordance with GAAP, with respect
to such judgment or award;
(k) Liens resulting from arrangements among the stockholders
of Foreign Subsidiaries which limit or restrict the transfer of Capital
Stock of such Foreign Subsidiaries by those stockholders to third
parties; and
(l) additional Liens on property or assets securing
obligations (other than Indebtedness for borrowed money) not exceeding
$250,000 at any time, provided that, to the extent any such Lien
applies to any Collateral (as defined in any such Security Document),
such Lien does not have priority over the Liens created under the
Security Documents.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred; provided that the Borrower
and the Subsidiaries may enter into any such arrangement to the extent that the
Capital Lease Obligation and Liens associated therewith would be permitted by
Sections 6.01(d) and 6.02(i), respectively.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any Capital Stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other person, except:
(a) investments existing on the date hereof by Holdings in the
Capital Stock of the Borrower and by the Borrower in the Capital Stock
of the Subsidiaries, and additional investments by Holdings in the
Capital Stock of the Borrower and by the Borrower and its Subsidiaries
in the Capital Stock of the Subsidiary Guarantors;
(b) Permitted Investments;
(c) loans or advances made by any Loan Party to the Borrower
or any Subsidiary that are evidenced by an intercompany note pledged to
the Collateral Agent pursuant to the Pledge Agreement for the benefit
of the Secured Parties;
(d) investments consisting of non-cash consideration received
in connection with a sale of assets permitted by Section 6.05(b);
(e) loans and advances to employees and officers of Holdings,
the Borrower or any of the Subsidiaries for travel, entertainment and
relocation expenses in the ordinary course of business in an aggregate
principal amount outstanding at any one time not to exceed $2,500,000;
(f) loans and advances in an aggregate principal amount
outstanding at any one time not to exceed $2,000,000 to management and
other employees of the Borrower, the proceeds
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of which are used in their entirety to purchase Capital Stock of
Holdings and other investments pursuant to retirement savings programs;
(g) Consolidated Capital Expenditures permitted pursuant to
Section 6.10;
(h) ordinary course Interest Rate Protection Agreements and
ordinary course, non-speculative foreign exchange and commodity
protection agreements;
(i) Accounts;
(j) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(k) loans and advances to Garvan existing on the Closing Date
and set forth on Schedule 6.04(k);
(l) additional loans or advances made by any Loan Party to
Garvan that are evidenced by an intercompany note pledged to the
Collateral Agent pursuant to the Pledge Agreement for the benefit of
the Secured Parties, provided that, unless and until Garvan shall
become a Foreign Subsidiary, the aggregate principal amount outstanding
at any one time of such loans and advances made by Loan Parties to
Garvan under this paragraph (l) shall not exceed $20,000,000;
(m) investments in the Capital Stock of Holdings permitted by
Section 6.06(vii); and
(n) other investments, loans or advances in an amount at any
time outstanding not exceeding $25,000,000.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. (a) Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
any substantial part of the assets of the Borrower and its Subsidiaries, taken
as a whole (whether now owned or hereafter acquired), or any Capital Stock of
any Subsidiary, or purchase, lease or otherwise acquire (in one transaction or a
series of transactions) all or any substantial part of the assets of any other
person, except that (i) the Borrower and any Subsidiary may purchase and sell
inventory and scrap, obsolete, excess and worn out assets in the ordinary course
of business, (ii) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be continuing (A)
any wholly owned Subsidiary may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (B) any wholly owned Subsidiary
may merge into or consolidate with any other wholly owned Subsidiary in a
transaction in which the surviving entity is a wholly owned Subsidiary and no
person other than the Borrower or a wholly owned Subsidiary receives any
consideration (provided, that if any such transaction involves a Domestic
Subsidiary, the surviving entity shall be a wholly owned Domestic Subsidiary and
no person other than the Borrower or a wholly owned Domestic Subsidiary shall
receive any consideration) and (C) any Foreign Subsidiary may merge into or
consolidate with any other Foreign Subsidiary in a transaction in which the
surviving entity is a Subsidiary and the value of the Borrower's direct or
indirect interest in such surviving entity immediately after such merger or
consolidation is at least equal to the aggregate value of its direct or indirect
interest in the merging or consolidating Foreign Subsidiaries immediately prior
to such merger or consolidation, and (iii) the Borrower and any Subsidiary may
make Consolidated Capital Expenditures permitted by Section 6.10 and sale and
lease-back transactions permitted by Section 6.03.
(b) Neither the Borrower nor any Subsidiary shall engage in any Asset
Sale otherwise permitted under paragraph (a) above unless (i) such Asset Sale is
for consideration at least 85% of
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which is cash, (ii) such consideration is at least equal to the fair market
value (as determined in good faith by the Borrower's board of directors or
analogous body) of the assets being sold, transferred, leased or disposed of and
(iii) the fair market value (as determined in good faith by the Borrower's board
of directors or analogous body) of all assets sold, transferred, leased or
disposed of pursuant to this paragraph (b) shall not exceed (i) $20,000,000 in
any fiscal year or (ii) $100,000,000 in the aggregate.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability of
Subsidiaries to Pay Dividends. (a) Declare or pay, directly or indirectly, any
dividend or make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with respect to
any of its Capital Stock or directly or indirectly redeem, purchase, retire or
otherwise acquire for value (or permit any Subsidiary to purchase or acquire)
any of its Capital Stock or set aside any amount for any such purpose; provided,
however, that:
(i) any Subsidiary may declare and pay dividends or make other
distributions ratably to its shareholders;
(ii) Holdings may declare and pay dividends with respect to
the Senior Preferred Interests payable solely in additional Senior
Preferred Interests;
(iii) Holdings may declare and pay dividends with respect to
the Junior Preferred Interests payable solely in additional Junior
Preferred Interests;
(iv) the Borrower may distribute to Holdings, and Holdings may
distribute to its members, Tax Distributions;
(v) if at the time thereof and after giving effect thereto no
Default has occurred and is continuing, the Borrower may declare and
pay dividends to Holdings at such times and in such amounts, not
exceeding $3,000,000 during any fiscal year, as shall be necessary to
permit Holdings to discharge liabilities it can incur and pay pursuant
to this Agreement;
(vi) following the fifth anniversary of the Closing Date, the
Borrower may pay dividends to Holdings, and Holdings may declare and
pay dividends to its members, in cash in an aggregate amount during any
fiscal year not to exceed the lesser of (A) 50% of that portion of
Excess Cash Flow (if any) from the preceding fiscal year not required
to be used to prepay the Loans pursuant to Section 2.13(d) and (B) the
sum of (1) $7,500,000 and (2) the excess (if any) of the aggregate
amount provided in this subclause (B) for prior fiscal years ending
after such fifth anniversary over the aggregate amount actually
dividended to Holdings pursuant to this clause (vi) in such fiscal
years, provided that no payment shall be permitted under this clause
(vi) unless at the time of such payment and after giving effect thereto
(x) no Default has occurred and is continuing and (y) the Consolidated
Leverage Ratio as of the last day of the last fiscal quarter for which
financial statements are available does not exceed 3.50 to 1.00; and
(vii) the Borrower may declare and pay dividends or make other
distributions to permit Holdings to purchase, redeem, retire or
otherwise acquire (A) Capital Stock of its members, or options or
warrants to purchase Capital Stock, held by officers, directors or
employees of Holdings, the Borrower or any Subsidiary pursuant to a
compensation plan or arrangement in connection with the death,
disability or termination of employment of any such officer, director
or employee or (B) Capital Stock owned by any officer, director or
employee of Holdings, the Borrower or any Subsidiary pursuant to the
exercise of options or warrants to purchase such Capital Stock by such
officer, director or employee or to pay taxes incurred in connection
with such exercise of options or warrants in an aggregate amount for
all such transactions described in clauses (A) and (B) not exceeding
the sum of
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(x) $1,000,000 plus (y) the proceeds of any substantially concurrent
issuance of Capital Stock of Holdings to any officer, director or
employee of Holdings, the Borrower or any Subsidiary.
(b) Permit its subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to (i) pay any dividends or
make any other distributions on its Capital Stock or any other interest or (ii)
make or repay any loans or advances to the Borrower or the parent of such
subsidiary, provided that the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document or the Senior Unsecured Debt
Documents.
SECTION 6.07. Transactions with Affiliates. Except as set forth on
Schedule 6.07, sell or transfer any property or assets to, or purchase or
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except that (a) the Borrower or any
Subsidiary may engage in (i) any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (ii) the transactions permitted pursuant to
Sections 6.04, 6.05 and 6.06 and (iii) the Transactions, including, without
limitation, the Tax Distributions and (b) this Section 6.07 shall not apply to
transactions between or among (i) the Borrower and one or more wholly owned
Domestic Subsidiaries or (ii) wholly owned Foreign Subsidiaries.
SECTION 6.08. Business of Holdings, Borrower and Subsidiaries. (a)
Other than Holdings, engage at any time in any business or business activity
other than a Related Business.
(b) In the case of Holdings, engage in any business or business
activity other than being a holding company for the Capital Stock of the
Borrower and the issuer of its securities permitted hereby and activities
reasonably incidental thereto.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit any waiver,
supplement, modification, amendment, termination or release of (i) the LLC
Agreement or the Recapitalization Documents or (ii) any indenture, instrument or
agreement pursuant to which any Indebtedness or preferred stock of Holdings, the
Borrower or any Subsidiary is outstanding in an aggregate outstanding principal
amount in excess of $5,000,000, or modify its articles of organization,
operating agreement or by-laws, in each case to the extent that any such waiver,
supplement, modification, amendment, termination or release would be adverse to
the Lenders in any material respect.
(b) (i) make any distribution, whether in cash, property, securities or
a combination thereof, other than regular scheduled (or, in the case of
Indebtedness described in Section 6.01(d), mandatory) payments of principal and
interest as and when due, in respect of, or pay, or offer or commit to pay, or
directly or indirectly redeem, repurchase, retire or otherwise acquire for
consideration, or set apart any sum for the aforesaid purposes, any Indebtedness
for borrowed money of the Borrower or any Subsidiary in an outstanding principal
amount exceeding $5,000,000 or (ii) pay in cash any amount in respect of such
Indebtedness that may at the obligor's option be paid in kind or in other
securities, except:
(A) payment of Indebtedness created under the Loan Documents;
(B) repayment of Indebtedness (including Indebtedness under
the Existing Debt Instruments and the Existing Credit Agreements) on
the Closing Date in connection with the Recapitalization; and
(C) payment of intercompany Indebtedness between or among
Holdings, the Borrower and its Subsidiaries permitted under clauses (e)
and (f) of Section 6.01 and payment of Indebtedness permitted under
clauses (h) and (i) of Section 6.01.
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SECTION 6.10. Capital Expenditures. Permit the aggregate amount of
Consolidated Capital Expenditures made by the Borrower and the Subsidiaries,
taken as a whole, (a) in the fiscal year ended December 25, 1998, to exceed the
excess of (i) $70,000,000 over (ii) the aggregate amount of Consolidated Capital
Expenditures made in 1998 by the Borrower and the Subsidiaries and National
Marine and its subsidiaries, taken as a whole, prior to the Closing Date, and
(b) in any fiscal year of the Borrower set forth below to exceed the sum of (x)
the amount set forth opposite such fiscal year below and (y) the Net Cash
Proceeds from Sponsor Equity Contributions made during such fiscal year;
provided, however, that the amount of Consolidated Capital Expenditures in any
fiscal year of the Borrower so permitted to be incurred shall be increased by an
amount equal to the amount of unused Consolidated Capital Expenditures so
permitted to be incurred for the immediately preceding fiscal year of the
Borrower (without giving effect to this proviso):
Year Amount
---- ------
1999 $ 90,000,000
2000 110,000,000
2001 110,000,000
2002 110,000,000
2003 150,000,000
2004 150,000,000
2005 155,000,000
2006 160,000,000
2007 160,000,000
SECTION 6.11. Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the end of any fiscal quarter falling in any period set
forth below to be in excess of the ratio set forth below for such period.
Year Ratio
---- -----
June 30, 1998 through September 30, 2000 5.50 to 1.00
December 31, 2000 through September 30, 2001 5.00 to 1.00
December 31, 2001 through September 30, 2002 4.50 to 1.00
Thereafter 4.00 to 1.00
SECTION 6.12. Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for (a) the (i) fiscal quarter ended
September 25, 1998, (ii) the two fiscal quarter period ended December 25, 1998,
or (iii) the three fiscal quarter period ended March 26, 1999, to be less than
1.75 to 1.00 or (b) any period of four consecutive fiscal quarters ending in any
period set forth below to be less than the ratio set forth below for such
period, tested, in each case, at the end of such quarter.
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Period Ratio
------ -----
June 25, 1999, through
September 29, 2000 1.75 to 1.00
The last Friday in
December, 2000 through
the last Friday in
September, 2001 2.00 to 1.00
The last Friday in
December, 2001 through
the last Friday in
September, 2002 2.25 to 1.00
Thereafter 2.50 to 1.00
SECTION 6.13. Fiscal Year. Permit the fiscal year of Holdings or the
Borrower to end on a day other than the last Friday in December of any calendar
year.
ARTICLE VII
Events of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of Letters of
Credit hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made, deemed made
or furnished;
(b) default shall be made in the payment of any principal of any Loan
or the reimbursement with respect to any L/C Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
any Fee or L/C Disbursement or any other amount (other than an amount referred
to in (b) above) due under any Loan Document, when and as the same shall become
due and payable, and such default shall continue unremedied for a period of five
Business Days;
(d) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a), 5.05 or 5.06 or in Article VI;
(e) default shall be made in the due observance or performance by
Holdings, the Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent or any Lender to the Borrower;
(f) Holdings, the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any Indebtedness
in a principal amount in excess of $5,000,000, when and as the same shall become
due and payable, or (ii) fail to observe or perform any other term, covenant,
condition or agreement contained in any agreement or instrument evidencing
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or governing any such Indebtedness if the effect of any failure referred to in
this clause (ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee on its or their behalf (with or without the giving of
notice, the lapse of time or both) to cause, such Indebtedness to become due
prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of Holdings, the Borrower or any Subsidiary, or of a substantial part
of the property or assets of Holdings, the Borrower or a Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any Subsidiary or
for a substantial part of the property or assets of Holdings, the Borrower or a
Subsidiary or (iii) the winding-up or liquidation of Holdings, the Borrower or
any Subsidiary; and such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) Holdings, the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
(g) above, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of the property or assets
of Holdings, the Borrower or any Subsidiary, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000, which amount is not covered by insurance
(provided that in the event such a judgment is covered by insurance, the
Administrative Agent is provided with satisfactory evidence that the insurance
provider will provide the coverage relating thereto) shall be rendered against
Holdings, the Borrower, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to levy upon assets or properties of Holdings, the
Borrower or any Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the reasonable opinion
of the Required Lenders, when taken together with all other such ERISA Events
that have occurred, could reasonably be expected to result in liability of the
Borrower and its ERISA Affiliates in an aggregate amount exceeding (i)
$1,000,000 in any year or (ii) $5,000,000 for all periods;
(k) any security interest purported to be created by any Security
Document shall cease to be, or shall be asserted by the Borrower or any other
Loan Party not to be, a valid, perfected, first priority (except as otherwise
expressly provided in this Agreement or such Security Document) security
interest in the securities, assets or properties covered thereby, except to the
extent that any such loss of perfection or priority results from the failure of
the Collateral Agent to maintain possession of certificates representing
securities pledged under the Pledge Agreement or to continue previously filed
financing statements prior to the expiration thereof and except to the extent
that such loss is covered by a lender's title insurance policy and the related
insurer promptly after such loss shall have acknowledged in writing that such
loss is covered by such title insurance policy; or
(l) there shall have occurred a Change in Control;
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then, and in every such event (other than an event with respect to Holdings or
the Borrower described in paragraph (g) or (h) above), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then
outstanding, if any, to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans so declared to be due and payable, together
with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall become forthwith due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to Holdings or the
Borrower described in paragraph (g) or (h) above, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document,
shall automatically become due and payable, without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
ARTICLE VIII
The Administrative Agent and the Collateral Agent
In order to expedite the transactions contemplated by this Agreement,
The Chase Manhattan Bank is hereby appointed to act as Administrative Agent and
Collateral Agent and, for purposes of the Fleet Mortgages, Security Trustee, on
behalf of the Lenders and the Issuing Bank (for purposes of this Article VIII,
the Administrative Agent, the Collateral Agent and Security Trustee are
referred to collectively as the "Agents"). Each of the Lenders and each assignee
of any such Lender hereby irrevocably authorizes the Agents to take such actions
on behalf of such Lender or assignee or the Issuing Bank and to exercise such
powers as are specifically delegated to the Agents by the terms and provisions
hereof and of the other Loan Documents, together with such actions and powers as
are reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders and the Issuing Bank, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders and the Issuing Bank
all payments of principal of and interest on the Loans, all payments in respect
of L/C Disbursements and all other amounts due to the Lenders hereunder, and
promptly to distribute to each Lender or the Issuing Bank its proper share of
each payment so received; (b) to give notice on behalf of each of the Lenders to
the Borrower of any Event of Default specified in this Agreement of which the
Administrative Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices, financial
statements and other materials delivered by the Borrower or any other Loan Party
pursuant to this Agreement or the other Loan Documents as received by the
Administrative Agent. Without limiting the generality of the foregoing, the
Agents are hereby expressly authorized to execute any and all documents
(including releases) with respect to the Collateral and the rights of the
Secured Parties with respect thereto, as contemplated by and in accordance with
the provisions of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower or any other Loan Party of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Agents shall not be responsible
to the Lenders for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Loan Documents, instruments or
agreements. The Agents shall in all cases be fully protected in acting, or
refraining from acting, in
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accordance with written instructions signed by the Required Lenders and, except
as otherwise specifically provided herein, such instructions and any action or
inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall,
in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Agents nor any of their respective directors, officers, employees or agents
shall have any responsibility in their capacity as such to the Borrower or any
other Loan Party on account of the failure of or delay in performance or breach
by any Lender or the Issuing Bank of any of its obligations hereunder or to any
Lender or the Issuing Bank on account of the failure of or delay in performance
or breach by any other Lender or the Issuing Bank or the Borrower or any other
Loan Party of any of their respective obligations hereunder or under any other
Loan Document or in connection herewith or therewith. Each of the Agents may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor, subject to the Borrower's approval, not to be
unreasonably withheld, so long as no Default or Event of Default shall have
occurred and be continuing. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent with the consent of the
Borrower (which consent shall not be unreasonably withheld) which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Agent hereunder by a successor bank, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent and the retiring Agent shall be discharged from its duties
and obligations hereunder. After the Agent's resignation hereunder, the
provisions of this Article and Section 9.05 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Holdings, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its Commitments hereunder) of any
expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, that shall not have been reimbursed by the Borrower
and (b) to indemnify and hold harmless each Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such pro rata share,
from and against any and all liabilities, taxes, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by or asserted
against it in its capacity as Agent or any of them in any way relating to or
arising out of this Agreement or any other Loan Document or any action taken or
omitted by it or any of them under this Agreement or any other Loan Document, to
the extent the same shall not have been reimbursed by the Borrower or any other
Loan Party, provided that no Lender shall be liable to an Agent or any such
other indemnified person for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
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expenses or disbursements determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
wilful misconduct of such Agent or any of its directors, officers, employees or
agents. Each Revolving Credit Lender agrees to reimburse and indemnify the
Issuing Bank and its directors, employees and agents, in each case, to the same
extent and subject to the same limitations as provided above for the Agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Borrower or Holdings, to it at American
Commercial Lines LLC, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: General Counsel, Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇;
with copies to Citicorp Venture Capital, Ltd., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇., Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇, and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
Citicorp Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Telecopy Number (▇▇▇) ▇▇▇-▇▇▇▇;
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to The Chase Manhattan Bank, at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(c) if to a Lender, to it at its address (or telecopy number)
set forth on Schedule 2.01 or in the Assignment and Acceptance pursuant
to which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower or Holdings herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Bank and shall survive the
making by the Lenders of the Loans and the issuance of Letters of Credit by the
Issuing Bank, regardless of any investigation made by the Lenders or the Issuing
Bank or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any
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Fee or any other amount then due and payable under this Agreement or any other
Loan Document is outstanding and unpaid (other than wholly-contingent
indemnification obligations) or any Letter of Credit is outstanding and so long
as the Commitments have not been terminated. The provisions of Sections 2.14,
2.16, 2.20 and 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of
the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower, Holdings and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Borrower, Holdings, the
Administrative Agent, the Issuing Bank or the Lenders that are contained in this
Agreement shall bind and inure to the benefit of their respective permitted
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of such Lender or to an Approved Fund, (x) the Borrower and the
Administrative Agent (and, in the case of any assignment of a Revolving Credit
Commitment, the Issuing Bank) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed) and (y)
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 (or, if less, the entire remaining amount of such Lender's
Commitment), (ii) unless otherwise agreed to by the Administrative Agent, the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation
fee of $3,500 and (iii) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 9.04, from and after the
effective date specified in each Assignment and Acceptance, (A) the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement and (B) the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05 and be subject to the provisions of Section 9.16, as well as to
any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Term Loan Commitments and Revolving Credit Commitment, and the outstanding
balances of its Term Loans and Revolving Loans, in each case without giving
effect to assignments thereof which have not become effective, are as set forth
in such Assignment and Acceptance, (ii) except as set forth in (i) above, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this
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Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of
the Borrower or any Subsidiary or the performance or observance by the Borrower
or any Subsidiary of any of its obligations under this Agreement, any other Loan
Document or any other instrument or document furnished pursuant hereto; (iii)
such assignee represents and warrants that it is legally authorized to enter
into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent
financial statements referred to in Section 3.05(a) or delivered pursuant to
Section 5.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, the Collateral Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent and the Collateral Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement
as are delegated to the Administrative Agent and the Collateral Agent,
respectively, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive and the Borrower, the Administrative Agent, the Issuing Bank, the
Collateral Agent and the Lenders may treat each person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank, the Collateral Agent
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower, the Issuing
Bank and the Administrative Agent to such assignment, the Administrative Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders, the Issuing Bank and the Borrower. No assignment shall be effective for
purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrower, the Issuing
Bank or the Administrative Agent sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided, however, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the
participating banks or other entities shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.14, 2.16 and 2.20 to the same
extent as if they were Lenders and had acquired their participations by
assignment pursuant to Section 9.04(b) and (iv) the Borrower, the Administrative
Agent, the Issuing Bank and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to the Loans or L/C
Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the rate
at which
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interest is payable on the Loans, extending any scheduled principal payment date
or date fixed for the payment of interest on the Loans, increasing or extending
the Commitments or releasing any Guarantor or all or any substantial part of the
Collateral).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower, provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto. In
order to facilitate such any such assignment, the Borrower shall, at the request
of the assigning Lender, duly execute and deliver to the assigning Lender a
promissory note or notes evidencing the Loans made to the Borrower by the
assigning Lender hereunder.
(i) Neither Holdings nor the Borrower shall assign or delegate any of
its rights or duties hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, ▇▇▇▇▇'▇
Investors Service, Inc. or ▇▇▇▇▇▇▇▇'▇ BankWatch (or InsuranceWatch Ratings
Service, in the case of Lenders that are insurance companies (or Best's
Insurance Reports, if such insurance company is not rated by Insurance Watch
Ratings Service)) shall, after the date that any Lender becomes a Revolving
Credit Lender, downgrade the long-term certificate deposit ratings of such
Lender, and the resulting ratings shall be below BBB-, Baa3 or C (or BB, in the
case of a Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch Ratings Service)), respectively, then the
Issuing Bank shall have the right, but not the obligation, at its own expense,
upon notice to such Lender and the Administrative Agent, to replace (or to
request the Borrower to use its reasonable efforts to replace) such Lender with
an assignee (in accordance with and subject to the restrictions contained in
paragraph (b) above), and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect of
its Revolving Credit Commitment to such assignee; provided, however, that (i) no
such assignment shall conflict with any law, rule and regulation or order of any
Governmental Authority and (ii) the Issuing Bank or such assignee, as the case
may be, shall pay to such Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of payment on
the Loans made by such Lender hereunder and all other amounts accrued for such
Lender's account or owed to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Holdings agree,
jointly and severally, to pay all out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent and the Issuing Bank in connection
with the syndication of the credit facilities provided for herein and the
preparation and administration of this Agreement and the other Loan Documents or
in connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby or thereby
contemplated shall be consummated) or incurred by the Administrative Agent, the
Collateral Agent or any Lender in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Loan Documents or
in connection with the Loans made or Letters of Credit issued hereunder,
including the reasonable fees,
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charges and disbursements of Cravath, Swaine & ▇▇▇▇▇, counsel for the
Administrative Agent and the Collateral Agent, and, in connection with any such
enforcement or protection, the reasonable fees, charges and disbursements of any
other counsel for the Administrative Agent, the Collateral Agent or any Lender.
(b) The Borrower and Holdings agree, jointly and severally, to
indemnify the Administrative Agent, the Collateral Agent, each Lender and the
Issuing Bank, each Affiliate of any of the foregoing persons and each of their
respective directors, trustees, officers, employees and agents (each such person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans or issuance of Letters of
Credit, (iii) any claim, litigation, investigation or proceeding relating to any
of the foregoing, whether or not any Indemnitee is a party thereto, or (iv) any
actual or alleged presence or Release of Hazardous Materials on any property
owned or operated by the Borrower or any of the Subsidiaries, or any
Environmental Claim related in any way to the Borrower or the Subsidiaries,
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) All amounts due under this Section 9.05 shall be payable on written
demand therefor.
SECTION 9.06. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, except to the extent prohibited by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower or Holdings against any of and all
the obligations of the Borrower or Holdings now or hereafter existing under this
Agreement and other Loan Documents held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement or such other
Loan Document and although such obligations may be unmatured. The rights of each
Lender under this Section 9.06 are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN
DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF
CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF
COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Bank
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and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Loan Document or consent
to any departure by the Borrower or any other Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) below,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice or demand on the Borrower or
Holdings in any case shall entitle the Borrower or Holdings to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower, Holdings and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan or any date for reimbursement of an L/C
Disbursement, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan or L/C Disbursement, without the prior
written consent of each Lender affected thereby, (ii) change or extend the
Commitment or decrease or extend the date for payment of the Commitment Fees of
any Lender without the prior written consent of such Lender, (iii) amend or
modify the provisions of Section 2.17 or 9.04(i), the provisions of this
Section, the definition of the term "Required Lenders" or release any Guarantor
or all or any substantial part of the Collateral, without the prior written
consent of each Lender or (iv) change the allocation between Tranche B Term
Loans and Tranche C Term Loans of any prepayment pursuant to Section 2.12 or
2.13 without the prior written consent of (A) Lenders holding a majority of the
aggregate outstanding principal amount of the Tranche B Term Loans and (B)
Lenders holding a majority of the aggregate outstanding principal amount of the
Tranche C Term Loans; provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent, the
Collateral Agent or the Issuing Bank hereunder or under any other Loan Document
without the prior written consent of the Administrative Agent, the Collateral
Agent or the Issuing Bank.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan or
participation in any L/C Disbursement, together with all fees, charges and other
amounts which are treated as interest on such Loan or participation in such L/C
Disbursement under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
9.09 shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and the
other Loan Documents constitute the entire contract among the parties relative
to the subject matter hereof. Any other previous agreement among the parties
with respect to the subject matter hereof (including, following the Closing
Date, the Commitment Letter dated April 17, 1998, among the Administrative
Agent, Chase Securities Inc. and VGI) is superseded by this Agreement and the
other Loan Documents and shall be terminated on the Closing Date. Nothing in
this Agreement or in the other Loan Documents, expressed or implied, is intended
to confer upon any party other than the parties hereto and thereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement or the
other Loan Documents.
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SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby (it being understood that
the invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each of
Holdings and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or Federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State
court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent, the Collateral Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or the other Loan Documents against the Borrower,
Holdings or their respective properties in the courts of any jurisdiction.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
the other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
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72
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the Collateral
Agent, the Issuing Bank and each of the Lenders agrees to keep confidential (and
to use its best efforts to cause its respective agents and representatives to
keep confidential) the Information (as defined below) and all copies thereof,
extracts therefrom and analyses or other materials based thereon, except that
the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender
shall be permitted to disclose Information (a) to such of its respective
officers, directors, employees, agents, affiliates and representatives as need
to know such Information, provided that such persons are notified of the
confidential nature of such Information, (b) to the extent requested by any
regulatory authority, including the National Association of Insurance
Commissioners, (c) to the extent otherwise required by applicable laws and
regulations or by any subpoena or similar legal process (after reasonable notice
to Borrower so that Borrower may seek a protective order or other appropriate
remedy), (d) in connection with any suit, action or proceeding relating to the
enforcement of its rights hereunder or under the other Loan Documents or (e) to
the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section 9.16 or (ii) becomes available to the
Administrative Agent, the Issuing Bank, any Lender or the Collateral Agent on a
nonconfidential basis from a source other than the Borrower or Holdings. For the
purposes of this Section, "Information" shall mean all financial statements,
certificates, reports, agreements and information (including all analyses,
compilations and studies prepared by the Administrative Agent, the Collateral
Agent, the Issuing Bank or any Lender based on any of the foregoing) that are
received from the Borrower or Holdings and related to the Borrower or Holdings,
any shareholder of the Borrower or Holdings or any employee, customer or
supplier of the Borrower or Holdings, other than any of the foregoing that were
available to the Administrative Agent, the Collateral Agent, the Issuing Bank or
any Lender on a nonconfidential basis prior to its disclosure thereto by the
Borrower or Holdings, and which are in the case of Information provided after
the date hereof, clearly identified at the time of delivery as confidential. The
provisions of this Section 9.16 shall remain operative and in full force and
effect regardless of the expiration and term of this Agreement.
SECTION 9.17. Termination. Subject to the last sentence of Section
9.02, this Agreement and the other Loan Documents shall terminate when all the
Obligations (other than wholly contingent indemnification obligations not then
due and payable) have been indefeasibly paid in full, the Lenders have no
further commitment to lend, the L/C Exposure has been reduced to zero and the
Issuing Bank has no further commitment to issue Letters of Credit under this
Agreement, at which time the Collateral Agent shall execute and deliver to the
Borrower, Holdings and the Subsidiary Guarantors all Uniform Commercial Code
termination statements, mortgage assignments or satisfactions and similar
documents which the Borrower, Holdings and the Subsidiary Guarantors shall
reasonably request to evidence such termination.
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73
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AMERICAN COMMERCIAL LINES LLC,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
AMERICAN COMMERCIAL LINES HOLDINGS
LLC,
by CSX ▇▇▇▇▇ CORP., as manager,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
Collateral Agent, Issuing Bank and
Security Trustee,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ALLSTATE INSURANCE COMPANY,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
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74
BHF-BANK Aktiengesellschaft
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
by
/s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BALANCED HIGH-YIELD FUND I, LTD.,
by BHF-BANK Aktiengesellschaft,
acting through its New York branch, as
Attorney-in-Fact
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
by
/s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANK ONE KENTUCKY, NA,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
CORESTATES BANK,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
80
75
CRESCENT/MACH I PARTNERS, L.P.,
by TCW Asset Management Company, its
Investment Manager
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
CYPRESSTREE INVESTMENT FUND, LLC,
by CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, its
Managing Member
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC.,
as Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance
Company as Portfolio Manager
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
CYPRESSTREE SENIOR FLOATING RATE
FUND,
by CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., as
Portfolio Manager
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
81
76
FLOATING RATE PORTFOLIO
by INVESCO Senior Secured Management,
Inc., as Attorney-in-Fact
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
FRANKLIN FLOATING RATE TRUST
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
HIBERNIA BANK
by
/s/ S. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: S. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC,
by ING Capital Advisors, Inc., as
Investment Advisor
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
KZH-CYPRESSTREE-1 CORPORATION,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
KZH-2 CORPORATION,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
82
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KZH-SOLEIL-2 CORPORATION,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
KZH HOLDING CORPORATION III,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
KZH IV CORPORATION,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
KZH-PAMCO CORPORATION,
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
ML CLO XIX STERLING (CAYMAN) LTD.,
by STERLING ASSET MANAGER, L.L.C., as
its Investment Advisor
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY,
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
83
78
MASSMUTUAL HIGH YIELD PARTNERS II,
LLC,
by HYP Management, Inc., as Managing
Member
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.,
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
METROPOLITAN LIFE INSURANCE CO.,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
PRIME INCOME TRUST,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
NATEXIS BANQUE BECE,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VP-Group Manager
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
84
79
NATIONAL CITY BANK,
by
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
NATIONAL WESTMINSTER BANK, PLC.
by NatWest Capital Markets Limited,
its agent
by Greenwich Capital Markets, Inc.,
its agent
by
/s/ R. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: R.▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
OCTAGON LOAN TRUST
by Octagon Credit Investors, as manager
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
ORIX USA CORPORATION
by Orix USA Corporation
by
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
PNC BANK, N.A.,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PARIBAS CAPITAL FUNDING, LLC,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
85
80
SENIOR HIGH INCOME PORTFOLIO, INC.
by
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
STAR BANK, N.A.
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇ ▇▇▇ & FARNHAM INCORPORATED, as
agent for KEYPORT LIFE INSURANCE
COMPANY,
by
/s/ ▇▇▇▇▇ ▇. Good
--------------------------------------
Name: ▇▇▇▇▇ ▇. Good
Title: Vice President & Portfolio Manager
TRANSAMERICA LIFE INSURANCE AND
ANNUITY COMPANY,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Investment Officer
THE TRAVELERS INSURANCE COMPANY
by
/s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: 2nd Vice President
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
by Senior Income Trust
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President & Director
