FIRST AMENDED AND
RESTATED CREDIT AGREEMENT
dated as of January 3, 1997
between
SEI II L.P., formerly known as
Shearson Equipment Investors-II,
a New York limited partnership
(the "Partnership")
and
BUTTONWOOD LEASING CORPORATION,
a Delaware corporation, as Lender
(the "Lender")
FIRST AMENDED AND RESTATED CREDIT AGREEMENT THIS FIRST AMENDED AND RESTATED
CREDIT AGREEMENT, is dated as of January 3, 1997, by and among SEI II L.P.,
formerly known as Shearson Equipment Investors-II, a New York Limited
Partnership c/o SEI II Equipment, Inc., General Partner, c/x Xxxxxx Brothers,
Inc., 3 World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000
(herein called the "Partnership"); and BUTTONWOOD LEASING CORPORATION, a
Delaware corporation (herein called the "Lender"), assignee of The First
National Bank of Maryland (the "Original Lender"), having an address at c/x
Xxxxxx Brothers, Inc., 3 World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000.
W I T N E S S E T H T H A T:
WHEREAS, the Partnership was formed to purchase and operate
transportation, marine, production, and other types of machinery and
equipment. The Partnership arranged for loans to the Partnership to
finance up to 55% of the Cost of Equipment, to a maximum of $17,000,000
aggregate principal amount at any time outstanding.
WHEREAS, the Partnership heretofore executed and delivered to the
Original Lender that certain Credit Note dated December 9, 1981, in the
original principal amount of Seventeen Million Dollars ($17,000,000)
(the "Original Note"), which Original Note was entered into subject to
the terms and conditions contained in that certain Credit Agreement
dated December 9, 1981 (the "Original Credit Agreement"), among the
Partnership, the Original Lender and The First National Bank of
Maryland, not in its individual capacity but as Trustee under that
certain Participation and Trust Agreement dated as of November 30, 1981
(herein called the "Trustee").
WHEREAS, the Partnership, the Original Lender and the Trustee amended
the Original Credit Agreement pursuant to that certain Amendment
Agreement dated June 30, 1983, among the Partnership, the Original
Lender and the Trustee (the "Amendment Agreement").
WHEREAS, the Original Lender sold and assigned the Original Note and
the Original Credit Agreement to the Lender on May 30, 1986.
WHEREAS, on May 30, 1986, the Partnership and the Lender agreed (i)
that the principal amount of the Original Note was to remain constant;
and (ii) to decrease the rate of interest on the Original Note from one
and one quarter percent (1.25%) plus the Prime Rate (as defined in the
Original Note) to a rate equal to the prime rate charged by Bank
America Illinois, formerly Continental Illinois National Bank.
WHEREAS, the Partnership and the Lender have agreed on an annual basis
to extend the maturity date of the Original Note, and the current
maturity date of the Original Note is January 3, 1997.
WHEREAS, prior to January 3, 1997, the Partnership made payments to the
Lender to reduce the outstanding principal amount of the Original Note
from Seventeen Million Dollars ($17,000,000) to Seven Million Eight
Hundred Thirty Nine Thousand Dollars ($7,839,000).
WHEREAS, the Partnership and the Lender have agreed to further extend
the maturity of the Original Note to the earlier of January 2, 1998, or
the date on which the Partnership sells the 25 covered xxxxxx river
barges that are owned by the Partnership.
WHEREAS, as of January 3, 1997, immediately following the application
of the principal payment in the amount of Five Million Five Hundred
Thousand Dollars ($5,500,000) made by the Partnership to the Lender on
such date, the outstanding principal amount of the Original Note will
be reduced from Seven Million Eight Hundred Thirty Nine Thousand
Dollars ($7,839,000) to Two Million Three Hundred Thirty Nine Thousand
Dollars ($2,339,000).
WHEREAS, as of January 3, 1997, the amount of accrued and unpaid
interest of the Original Note is [Nine Million Eight Hundred
Twenty-Nine Thousand Three Hundred Sixty] Dollars ($[9,829,360]) and
such amount remains due and owing.
WHEREAS, the Partnership and the Lender desire to restate the Original
Credit Agreement as previously amended by the Amendment Agreement and
as amended hereby.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants hereinafter set forth and intending to be legally bound
hereby, agree as follows:
Section 1. Certain Definitions. In addition to words and terms defined
elsewhere in this Agreement, the following words and terms as used
herein shall have the following meanings, respectively, unless the
context hereof clearly requires otherwise. Terms used in the singular
form shall include the plural and vice versa:
(a) "Agreement" shall mean this First Amended and Restated Credit
Agreement, as the same may from time to time be further supplemented
or amended.
(b) "Aircraft" [intentionally omitted].
(c) "Aircraft Security Agreement" [intentionally omitted].
(d) "Assignment" shall mean each assignment to the Lender of an
Operating Agreement, as the same may from time to time be supplemented
or amended.
(e) "Borrowing Base" [Intentionally omitted].
(f) "Business Days" shall mean days other than a Saturday, Sunday
or any other day on which banking institutions in the state of New
York are authorized or obligated to remain closed.
(g) "Cash Sweep Payment Amount" for each date that such a payment
is due shall be an amount equal to 90% of the aggregate Free Cash (as
hereinafter defined) of the Partnership as of the last day of the
immediately preceding calendar quarter of the Partnership.
(h) "Closing Date" shall mean the date on which this Agreement is
signed by the parties hereto.
(i) "Contract Assignment" [intentionally omitted].
(j) "Cost of Equipment" shall mean, with respect to each Item of
Equipment, the actual purchase price payable or paid by the
Partnership pursuant to agreements for the purchase, construction or
building of any Item of Equipment or to invoices and/or bills of sale
issued under the same plus all shipping, assembly, storage and similar
costs and applicable excise, sales or use taxes, but excluding any
fees paid to General Partner in connection with such purchase.
(k) "Credit Advance" [intentionally omitted].
(l) "Current Assets" shall mean the current assets of the
Partnership, determined in accordance with generally accepted
accounting principles.
(m) "Current Liabilities" shall mean the current liabilities of the
Partnership determined in accordance with generally accepted
accounting principles.
(n) "Current Debt" shall mean any obligation for borrowed money
(and any notes payable and drafts accepted representing extensions of
credit whether or not representing obligations for borrowed money)
payable on demand or within a period of one year from the date of the
creation thereof; provided that any obligation shall be treated as
Funded Debt, regardless of its term, if such obligation is renewable
at the option of the Partnership pursuant to the terms thereof or of a
revolving credit or similar agreement effective for more than one year
after the date of the creation of such obligation, or may be payable
out of the proceeds of a similar obligation pursuant to the terms of
such obligation or of any such agreement.
(o) "Debt" shall mean Funded Debt or Current Debt, as the case may
be. Any obligation secured by a Lien on, or payable out of the
proceeds of production from or sale of, property of the Partnership
shall be deemed to be Funded or Current Debt, as the case may be, of
the Partnership even though such obligation shall not be assumed by
the Partnership.
(p) "Default" shall mean any of the events specified in Section 10
hereof, whether or not any requirement for the giving of notice or the
lapse of time or the happening of any further event, condition or act
shall have been satisfied.
(q) "Equipment", or "Item of Equipment", or "Item" shall mean those
items of personal property of the Partnership described in Schedule A
hereto (whether or not such property is characterized as equipment or
inventory under the Uniform Commercial Code or otherwise) and such
other items of personal property which are not described on Schedule A
hereto but which are acceptable to the Lender as collateral security
for the Loan and are described in any of the Security Documents.
(r) "Events of Default" shall mean any of the events specified in
Section 10 hereof; provided that there has been satisfied any
requirement in connection with such event for the giving of notice,
the lapse of time or the happening of any further event, condition or
act.
(s) "Free Cash" shall mean the amount (provided such amount is
greater than zero) equal to the Net Operating Income of the
Partnership minus the scheduled principal installments paid on any
Debt permitted by Section 9(c) of this Agreement for the immediately
preceding calendar quarter of the Partnership.
(t) "Funded Debt" shall mean any obligation payable more than one
year from the date of the creation thereof, which under generally
accepted accounting principles is shown on the balance sheet as a
liability (excluding reserves for deferred income taxes and other
reserves to the extent that such reserves do not constitute an
obligation).
(u) "General Administrative Expenses" shall mean the total amount
of all costs and expenses actually paid in cash during such time
period by the Partnership such as but not limited to audit/accounting
fees, legal fees, transfer agent fees, printing and postage fees, out
of pocket costs and any other cost or expenses paid in connection with
the management and administration of the Partnership.
(v) "General Partner" shall mean SEI II Equipment, Inc., formerly
known as Shearson Equipment Management Corporation, a Delaware
Corporation, its successors and assigns.
(w) "General Partner's Certificate" shall mean a certificate signed
in the name of the General Partner by its President, one of its Vice
Presidents, or its chief financial officer which certificate shall
state, in addition to the specific information required by the terms
of this Agreement or the Security Documents, (i) that the individual
signing the same has made or caused to be made such investigations as
are necessary in order to permit him to verify the accuracy of the
information set forth therein and (ii) that to the best of such
individual's knowledge, the certificate does not misstate any fact or
omit to state any fact necessary to make the certificate not
misleading.
(x) "Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional
sale or other title retention agreement, any lease in the nature
thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction).
(y) "Loan" shall mean, as of any time, the then unpaid principal
balance of the Note, plus accrued interest thereon.
(z) "Net Operating Income" shall mean Total Revenue (including
Other Income) minus Operating Expenses and General and Administrative
Expenses minus capital required by future operations as determined by
the General Partner of the Partnership (but not to exceed $300,000)
plus depreciation and amortization taken.
(aa) "Note" shall mean the First Amended and Restated Credit Note of
the Partnership, as defined in Section 2, executed and delivered under
this Agreement, and all extensions, renewals, replacements and
modifications thereof.
(bb) "Obligations" shall mean the Loan, and all other indebtedness
now or hereafter owed by the Partnership to the Lender, whether under
the Agreement, the Security Documents, the Note or otherwise.
(cc) "Operating Agreement" shall mean an agreement or arrangement
providing for the operation, use, management or control of any Item of
Equipment by any Person other than the Partnership including, without
limitation, a management agreement, operating agreement, maintenance
contract, rental agreement, lease, charter, assigned service contract,
affreightment or transportation agreement.
(dd) "Operating Expenses" shall mean the total amount of all costs
and expenses actually paid in cash during such time period by the
Partnership (or by the property manager on behalf of the Partnership)
for the management, maintenance, repair, insurance or operation of the
Barges, exclusive of expenses for depreciation and amortization.
(ee) "Other Income" shall mean for any period of time, all cash
actually received by the Partnership, other than total revenue as
defined, including, without limitation, reimbursement or refunds,
interest and other receipts incidental to operating the Partnership.
(ff) "Participant" [intentionally omitted].
(gg) "Participation Agreement" [intentionally omitted].
(hh) "Person" shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, an unincorporated organization
and a government or any department or agency thereof.
(ii) "Prime Rate" shall mean, as of any date, (i) the announced or
published Prime Rate at the Bank America Illinois of Chicago,
Illinois, or its successors, or (ii) in the absence of an announced or
published Prime Rate by Bank America Illinois or its successor, the
Prime Rate reported in the Money Rates Column of The Wall Street
Journal, currently defined as being the base rate on corporate loans
posted by at least 75% of the nation's thirty largest banks
(regardless of whether such rate has actually been charged by any such
bank); provided that, in the event The Wall Street Journal (y)
publishes more than one prime rate, the highest of such rates shall be
the "Prime Rate", or (z) publishes a retraction or correction of any
such rate, the rate reported in such retraction or correction shall be
the "Prime Rate."
(jj) "Security Agreement" shall mean the Security Agreement of the
Partnership in substantially the form of Exhibit C hereto, as the same
may from time to time be supplemented or amended.
(kk) "Security Documents" shall mean collectively any and all
documents and instruments signed and delivered to the Lender for the
purpose of securing the payment of the Loan including, without
limitation, the Security Agreement, the Ship Mortgage, and the
Assignment.
(ll) "Ship Mortgage" shall mean a First Preferred Mortgage of
Documented Vessels in substantially the form of Exhibit B hereto, duly
executed, delivered and recorded, as the same may from time to time be
supplemented or amended.
(mm) "Special Counsel" shall mean Xxxxxxxx Xxxxxx, St. Xxxxx,
Missouri.
(nn) "Tangible Net Worth" shall mean the total assets of the
Partnership, exclusive of intangible assets such as goodwill,
trademarks, trade names, licenses or rights in respect thereof and any
other items which are treated as intangibles under generally accepted
accounting principles, minus the total liabilities including, without
limitation, subordinated indebtedness of the Partnership, all as
determined in accordance with generally accepted accounting
principles.
(oo) "Total Revenue" shall mean for any period of time, all cash
actually received by the Partnership in connection with the management
and operation of the Barges, including, without limitation, all rents
and fees from the rental of the Barges.
(pp) "Vessel" shall mean any vessel eligible for documentation as a
Vessel of the United States.
(qq) "Working Capital" shall mean the excess of Current Assets of
the Partnership over its Current Liabilities, all as determined in
conformity with generally accepted accounting principles.
Section 2. Credit Availabilities.
(a) Commitment. [Intentionally omitted].
(b) The Note. All advances hereunder to the Partnership shall be
evidenced by a single First Amended and Restated Credit Note (the "Note"), duly
executed, payable to the order of the Lender, in substantially the form of the
Note attached hereto as Exhibit A. The Note is an extension and modification
of the Original Note. The Note shall be dated the Closing Date, shall evidence
the obligation of the Partnership to pay the aggregate unpaid principal amount
of the Loan and shall bear interest from the date thereof on the unpaid
balances of principal until maturity, payable at maturity. Interest on the
outstanding principal balance shall be computed using simple interest at a rate
per annum (based on a year of 360 days for the actual number of days elapsed)
which shall be equal to the Prime Rate, such interest rate to change
automatically from time to time effective as of the effective date of each
change in the Prime Rate, and after maturity until fully paid, payable on de
terly payments in an amount equal to the amount of interest accrued on the
unpaid principal balance of the Note shall be due on April 1, 1997, July 1,
1997 and October 1, 1997 and shall be applied to the outstanding principal
balance of the Note. The principal amount of the Note and accrued interest
shall be repaid in full on the earlier of January 2, 1998, or the date on which
the Partnership sells the 25 covered xxxxxx river barges owned by the
Partnership.
(c) Credit Advance Procedures. [intentionally omitted].
(d) Evidentiary Provisions. The date and amount of each payment of
principal shall be recorded by the Lender on the Schedule attached to the Note,
but any failure of the Lender to record such dates or amounts shall not relieve
the Partnership of its obligations hereunder or under such Note.
(e) Notwithstanding anything to the contrary in the Note, the
Security Documents or this Agreement, neither the Lender nor the successors or
assigns of the Lender shall have any claim, remedy or right to proceed against
the Partnership, any limited partner of the Partnership, or against the
General Partner in its individual corporate capacity, or any incorporator or
any past, present or future subscriber to the capital stock of, or
stockholder, officer or director of the said General Partner, for the payment
of any deficiency or any other sum owing on account of the Obligations from
any source other than the Vessels and the collateral securing the Note under
this Agreement and the Security Documents; and the Lender, by acceptance
hereof, waives and releases any personal liability of the Partnership, any
limited partner of the Partnership, and the General Partner in its individual
corporate capacity and any incorporator or any past, present or future
subscriber to the capita or stockholder, officer or director of the said
General Partner for and on account of such indebtedness or such liability, and
agrees to look solely to the said Vessels and the other collateral security
for the payment of the Obligations and the satisfaction of such liability;
provided, however, nothing herein contained shall limit, restrict or impair
the rights of the Lender to accelerate the maturity of the Note upon a default
under this Agreement, to bring suit and obtain a judgement against the
Partnership on the Note, to exercise all rights and remedies provided under
this Agreement (including, without limitation, the rights granted pursuant to
Section 12.(b) hereof) and the Security Documents or to otherwise realize upon
the Vessels and the collateral securing the Obligations.
Section 3. Facilities Fee. [Intentionally omitted].
Section 4. Special Provisions Relating to Collateral Security.
(a) Security Documents. The Note and all other Obligations of the
Partnership will be secured by all assets, properties, rights and interests of
the Partnership under the following Security Documents:
(i) Ship Mortgage. The Ship Mortgage covering the Vessels.
(ii) Security Agreement. The Security Agreement covering
Equipment other than Vessels.
(iii) Aircraft Security Agreement. [Intentionally omitted].
(iv) Contract Assignments. [Intentionally omitted].
(v) Assignment. One or more Assignments covering all
Operating Agreements.
(b) Non-Designated Equipment. [Intentionally omitted].
(c) Permitted Sales of Equipment. If no Event of Default or
Default has occurred and is continuing, the Partnership may at any time and
from time to time sell or otherwise dispose of any Item or Items of Equipment
free and clear of the Lender's lien thereon under the Security Documents,
provided that (i) the Partnership shall give the Lender not less than 10
Business Days' notice of such proposed sale or disposition, (ii) the Lender
shall have consented to such sale or disposition in writing, (iii) such sale or
disposition shall be an arm's length transaction with an unaffiliated third
party for fair consideration, and (iv) the Partnership shall make a prepayment
on the Note on the effective date of such sale or disposition in an amount
equal to the net proceeds from such sale or disposition (i.e., the net cash
realized by the Partnership from such sale or disposition, after the payment of
all direct expenses related thereto (excluding any cash distributions payable
to the rtner by reason of such sale or disposition), but prior to the repayment
of any related indebtedness thereon to the Lender under this Agreement;
provided, however, in the event that such sale or disposition results in the
sale or disposition of all Items of Equipment owned by the Partnership, then
the General Administrative Expenses incurred in liquidating the Partnership
shall also be deducted from the net cash realized from the Partnership from
such sale or disposition).
(d) Equipment Contracts. It is understood and agreed that all
Equipment owned by the Partnership will be managed by the General Partner or by
third parties and may be operated by the Partnership or leased to third parties
on a short or long term basis. The Partnership shall execute and deliver in
favor of the Lender an Assignment relating to and covering all management,
operating, rental, lease, utilization or similar contracts for such Item of
Equipment; and the Partnership agrees not to substitute or replace any such
manager, operator or lessee of an Item of Equipment without the prior written
consent of the Lender, which consent shall not be unreasonably withheld.
(e) Additional Collateral. To further secure the payment of the
Obligations, the Partnership hereby assigns to and grants to the Lender a
continuing lien upon and a security interest in all of the Partnership's money,
letters of credit, instruments, securities, negotiable documents, chattel paper
and all other cash equivalents, together with all proceeds thereof (all of the
foregoing are hereinafter collectively referred to as the "Cash Equivalents"),
now or hereafter actually or constructively held or received by or for the
Lender for any purpose (including safekeeping, custody, pledge and collection),
and the Lender shall have a continuing lien and/or right of set-off for the
amount of the Obligations upon all of the Partnership's deposits and credits
with the Lender (individually and collectively, the "Collateral Security").
The Lender shall use reasonable care in the custody of the Collateral Security
in its possession. The Partnership hereby further covenants and ag e request
of Lender, (i) to deliver to the Lender at all times all of its then existing
and thereafter arising Cash Equivalents (except that the Partnership or its
General Partner shall be permitted to maintain a deposit account for capital
required by future operations (which account balance shall at no time exceed
$300,000)), (ii) that it shall not pledge or otherwise encumber any of the
Collateral Security and (iii) that upon and after any default under this
Agreement and consequent acceleration of the Note, the Lender shall have the
right (without limiting any other rights or remedies available to it) to
realize upon the Collateral Security; provided, however, that the foregoing
shall not be construed to prevent the Partnership from using such Cash
Equivalents to meet its ordinary business expenses.
Section 5. Prepayments and Other Payments.
(a) Optional. The Partnership shall have the right, at its option,
to prepay the Note outstanding hereunder in whole at any time or in
part from time to time, without premium or penalty. Each partial
prepayment shall be in the aggregate principal amount of $10,000 or an
integral multiple thereof. Any partial prepayments shall be applied
first to the unpaid principal amount of the Note and then to accrued
and unpaid interest. The Lender shall be entitled to receive written
or telegraphic notice of each prepayment at least 5 Business Days prior
thereto, which notice shall specify the aggregate principal amount of
the Note to be prepaid on the prepayment date. Notice of prepayment
having been given by the Partnership as aforesaid, the principal amount
of the Note specified in such notice, together with interest accrued
and unpaid on the amount of such prepayment to the date of prepayment,
shall become due and payable on such prepayment date.
(b) Mandatory.
(i) If any Item of Equipment shall be sold or otherwise
disposed of by the Partnership then, unless otherwise agreed by the
Lender in writing, the Partnership shall prepay the Loan in the manner
and in the amounts set forth in Section 4(c) hereof. Any such
prepayment shall be applied to the unpaid principal amount of the Note.
(ii) The Partnership shall pay to the order of Lender on or
before the 60th day (or the next succeeding Business Day) after the end
of each calendar quarter commencing March 31, 1997, a mandatory
prepayment of principal on the Note in an amount equal to the Cash
Sweep Payment Amount for such date; provided however, that in the event
that the Cash Sweep Payment Amount is less than $10,000, then no such
mandatory prepayment shall be due. All mandatory prepayments of
principal made as required under this paragraph shall be applied to the
unpaid principal amount of the Note and shall not be subject to any
prepayment fees.
(iii) In the event (A) of the actual or constructive total
loss or an agreed or compromised total loss of any Item of Equipment
occurring through any event whatsoever, (B) that title to or ownership
of any Item of Equipment shall be requisitioned, purchased or taken by
any government of any country or any department, agency or
representative thereof and such condition shall continue for 30 days
thereafter, (C) that any such governmental authority shall requisition,
charter or in any manner take over the use of any Vessel and such
condition shall continue for 30 days thereafter, or (D) that any Item
shall sustain damage to an extent which, in the opinion of the
Partnership, as determined in good faith by a duly authorized officer
of the General Partner, makes repair of such Item uneconomical (any
such event hereinabove specified in clauses (A), (B), (C) or (D) being
herein called a "Casualty Event"), then the Partnership shall promptly
notify the Lender of such Casualt ess the Partnership shall elect to
replace said Item of Equipment in conformity with the provisions of the
Security Documents, the Partnership shall make a prepayment on account
of outstanding principal of the Note, on a date not later than the
earlier of (X) 90 days after the occurrence of such Casualty Event, or
(Y) not more than 5 Business Days after the date of receipt of the
insurance or other proceeds from such Casualty Event, which prepayment
shall be in an amount equal to the product obtained by multiplying the
then outstanding principal amount of the Note by a fraction the
numerator of which is the Cost of Equipment involved in such Casualty
Event and the denominator of which is the aggregate Cost of Equipment
for all Equipment (including the Item of Equipment suffering such
Casualty Event) then under the Security Documents.
(c) Method of Payment. All payments and prepayments made in
accordance with the provisions of this Agreement or of the Note shall
be made to the Lender not later than 4:00 P.M. local time on the date
of payment in lawful money of the United States of America by check or
by wire transfer in immediately available funds at the office of the
Lender specified in Section 12 hereof.
Section 6. Representations and Warranties. The Partnership represents and
warrants to the Lender that:
(a) Organization and Qualification. The Partnership is a limited
partnership duly organized and existing in good standing under the
laws of the State of New York and has the power to own its properties
and to carry on its business as now being conducted and as proposed to
be conducted.
(b) Power and Authority. The Partnership has full partnership
power and authority to execute, deliver and carry out the provisions
of this Agreement and the Security Documents, to incur indebtedness
hereunder, to grant security interests in and otherwise encumber the
Equipment, to execute and deliver the Note and to perform its
obligations hereunder and under the Note, and all such action has been
duly authorized by all necessary proceedings on its part. This
Agreement and the Security Documents have been (and will be) duly and
validly executed and delivered by the Partnership and constitute (and
will constitute) the legal, valid and binding contract of the
Partnership, enforceable in accordance with their respective terms,
and the Note, when duly executed and delivered pursuant to the
provisions hereof, will constitute the legal, valid and binding
obligations of the Partnership enforceable in accordance with the
terms thereof and of this Agreement.
(c) General Partner. The General Partner is a corporation duly
organized and existing in good standing under the laws of the State of
Delaware and has the corporate power to own its properties and to
carry on its businesses as now being conducted and as proposed to be
conducted. The General Partner is duly qualified to do business as a
foreign corporation and is in good standing in the State of New York,
and has not failed to qualify in any other jurisdiction in which the
nature of the business conducted by it makes such qualification
necessary or in which the failure to qualify might materially
adversely affect the conduct of the General Partner's business in such
jurisdiction. The General Partner has the corporate power and
authority to execute, deliver and carry out the provisions of this
Agreement and the Security Documents on behalf of the Partnership and
all such action has been duly authorized by all necessary corporate
proceedings on its part.
(d) Financial Statements. The Partnership has furnished the Lender
with the Partnership's financial statements as of December 31, 1995
and September 30, 1996.
(e) Public Offering of Partnership Interests. Pursuant to the
public offering of 4,000 limited partnership interests in the
partnership, duly registered with the Securities and Exchange
Commission, there are outstanding a total of 3,614 such limited
partnership interests. A post-effective amendment was duly filed with
the Securities and Exchange Commission and became effective on
November 4, 1981. No further offering of limited partnership interests
in the Partnership is presently contemplated. The Partnership is not
subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or redeem any of the limited partnership interests
except as provided in the partnership agreement and the subscription
agreements signed by such limited partners. All documents required to
be filed under the Securities Exchange Act of 1934 and related
statutes, in connection with the offering of limited partnership
interests or any other class of debt or equity securiti Partnership,
have been duly and properly filed; such documents are true and
complete and in accordance with all applicable laws, rules and
regulations.
(f) Actions Pending. Except as disclosed in writing to the Lender,
there is no action, suit or proceeding pending at law or in equity or,
to the best of the knowledge of the Partnership, threatened against or
affecting the Partnership or the General Partner or any properties or
rights of the Partnership or General Partner before any court,
arbitrator or administrative or governmental body which might result
in any material adverse change in the business, condition or
operations of the Partnership.
(g) Outstanding Debt. The Partnership has no outstanding Funded or
Current Debt.
(h) Title to Properties. The Partnership has good and marketable
title to its properties and assets including, without limitation, the
Equipment and those properties and assets reflected in the balance
sheet of the Partnership, free and clear of all Liens other than Liens
arising under the Security Documents.
(i) Taxes. All federal and state income and other tax returns with
respect to the income, properties and business of the Partnership that
are required to be filed have been filed. All taxes shown on said
returns as required to be paid by the Partnership have been paid.
(j) Conflicting Agreements and Other Matters. Neither the
Partnership nor the General Partner is a party to any contract or
agreement or subject to any charter or other corporate restriction
that materially adversely affects its business, property or assets, or
financial condition. The execution, delivery and performance of this
Agreement, the Security Documents and the Note will not conflict with,
result in a breach of, or constitute a default under, result in any
violation of, result in any Lien upon the properties of either the
Partnership or the General Partner pursuant to, or require consent or
other action by or any notice to or filing with any court or
administrative or governmental body pursuant to, (i) its partnership
agreement or its charter or by-laws, as the case may be, (ii) any
award of any arbitrator or (iii) any agreement, instrument, order,
judgement, decree, statute, law, rule or regulation to which it is
subject. Neither the Partnership nor the General s presently in
default in respect of or in violation of any such award, agreement,
instrument, order, judgement, decree, statute, law, rule or
regulation.
(k) Patents, etc. No patents, trademarks, trade names, copyrights,
registrations or applications are necessary for the conduct of the
business of the Partnership as now conducted. The Partnership is not
a licensor in respect of any patents, trademarks, trade names,
copyrights or registrations or applications therefor. The Partnership
is not in violation of any patent, patent license, trade name,
trademark, or copyright of others.
(l) Regulation U. Neither the Partnership nor the General Partner
owns or presently intends to acquire any "margin stock" as defined in
Regulation U (12 CFR Part 221) of the Board of Governors of the
Federal Reserve System (herein called a "margin stock"). None of the
proceeds of the Note hereunder will be used by the Partnership,
directly or indirectly, for the purpose of purchasing or carrying any
margin stock or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry a
margin stock or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of said Regulation
U. Neither the Partnership nor the General Partner has taken or will
take any action that might cause this Agreement or the Note to violate
Regulation U or any other regulation of the Board of Governors of the
Federal Reserve System or to violate the Securities Exchange Act of
1934, in each case as in effect now or as the same may hereafter be in
effect.
(m) Employee Retirement Income Security Act of 1974. The
Partnership and the General Partner is and has at all times been in
compliance with all applicable provisions of the Employee Retirement
Income Security Act of 1974 ("ERISA") and other federal and state
statutes relating to employee benefit plans.
(n) ICC Regulation. The Partnership is not a certificated carrier
or subject to certification or other regulation by the Interstate
Commerce Commission and will not, by virtue of the transactions
contemplated hereunder, be subject to such certification or
regulation.
(o) Citizenship. The Partnership, the General Partner and (on the
basis of written representations made in 1981 as to citizenship filed
with the Partnership) each of the limited partners is a "citizen of
the United States" within the meaning of Section 2 of the Shipping
Act, 1916, as amended (46 U.S.C. Sec. 802).
Section 7. Conditions of Lending. On or before the Closing Date, the
Partnership shall deliver to the Lender or confirm to the satisfaction
of the Lender the following:
(a) Representations and Warranties. The representations and
warranties contained in Section 6 hereof (except as affected by
transactions contemplated by this Agreement) shall be true and
accurate; no Event of Default or Default shall have occurred and be
continuing or shall exist as of such date; and the Partnership shall
deliver to the Lender a General Partner's Certificate to the foregoing
effect.
(b) Official Action. There shall be delivered to the Lender (A)
copies of all documents evidencing partnership action taken by the
Partnership relative to this Agreement and the Note in form and
substance satisfactory to the Lender and to Special Counsel, and (B) a
certificate, dated the Closing Date and signed by the Secretary or an
Assistant Secretary of the General Partner, certifying to the Lender
the signature of the officer or officers of the General Partner
authorized to sign the Note to be issued hereunder, together with the
true signatures of such officer or officers, and the Lender may
conclusively rely on such certificate.
(c) Consummation of Transactions. All partnership, organizational
and other proceedings taken or to be taken in connection with the
transactions contemplated hereby and all documents incident thereto
shall be satisfactory in form and substance to the Lender and to
Special Counsel, and the Lender and said Special Counsel shall have
received all such counterpart originals or certified or other copies of
such documents as the Lender or Special Counsel may reasonably request.
(d) Documentation. The following documents, fully executed, shall
be delivered to the Lender:
(i) This Agreement;
(ii) The Note;
(iii) The Security Documents as required by the terms of this
Agreement;
(iv) Certified Resolutions of Board of Directors of the
General Partner authorizing the General Partner to act in
behalf of the Partnership in respect of the transactions
contemplated herein; and
(v) Uniform Commercial Code financing statements and/or
amendments in form and substance satisfactory to the Lender and
to Special Counsel.
Section 8. Affirmative Covenants. The Partnership covenants and agrees that,
so long as it may borrow hereunder and until payment in full of the
Note issued hereunder and interest thereon and of all other amounts due
hereunder, it will:
(a) Books and Records. Maintain and keep proper books of account
and records in accordance with generally accepted accounting
principles consistently applied.
(b) Financial Statements and Reports.
(i) Furnish to the Lender:
(A) as soon as practicable and in any event within 60 days
after the end of each quarterly accounting period in each
fiscal year, a statement of income and retained earnings and
changes in financial position of the Partnership for such
quarterly period and for the period from the beginning of the
current fiscal year to the end of such quarterly period, and a
balance sheet of the Partnership as at the end of such
quarterly period, setting forth in each case, in comparative
form, figures for the corresponding periods in the preceding
fiscal year, all in reasonable detail and certified by the
president, any vice-president or chief financial officer of the
General Partner, subject to changes resulting from year-end
adjustments;
(B) as soon as practicable and in any event not later than
April 15 of each fiscal year, a statement of income and
retained earnings and changes in financial position of the
Partnership for the immediately preceding fiscal year, and a
balance sheet of the Partnership as at the end of such
preceding fiscal year, setting forth in each case in
comparative form corresponding figures for the period covered
by the preceding annual audit all in reasonable detail,
together with an opinion (which opinion need not cover pro
forma figures, if any) with respect to such financial
statements addressed to the Partnership by Xxxxxx Xxxxxxxx &
Co., or independent public accountants of similar recognized
national standing selected by the Partnership, whose opinion
shall be in scope and substance reasonably satisfactory to the
Lender.
(C) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, and reports as the
Partnership shall send to its limited partners and copies of
all registration statements (with exhibits) and all regular,
special or periodic reports which the Partnership files with
the Securities and Exchange Commission (or any governmental
body or agency succeeding to the functions of the Security and
Exchange Commission) or with any national stock exchange on
which any of its securities are listed and of all press
releases and other statements made available generally by the
Partnership to the public concerning material developments in
the business of the Partnership; and
(D) with reasonable promptness, such other financial data
as the Lender may reasonably request from time to time
including, without limitation, operating statements, proposed
budgets, cash flow analyses and Partnership income tax returns.
(ii) Together with each delivery of financial statements and
reports required by clauses (i)(A) and (i)(B) above, the
Partnership will deliver to the Lender a General Partner's
Certificate stating that there exists no Event of Default or
Default or, if any Event of Default or Default exists,
specifying the nature thereof, the period of existence thereof
and what action the Partnership proposes to take with respect
thereto.
(iii) Forthwith upon the chief executive officer, president
or chief financial officer (or, if there is no chief financial
officer, the controller) of the General Partner obtaining
knowledge of any Event of Default or Default, it will deliver
to the Lender a General Partner's Certificate specifying the
nature thereof, the period of existence thereof, and what
action is proposed to be taken with respect thereto. The
Lender is hereby authorized to deliver a copy of any financial
statement delivered to it pursuant to this Section 8(b) to any
regulatory body having jurisdiction over it.
(c) Inspection of Books. Permit any Person designated in writing
by the Lender, at the Lender's expense, to examine the records of the
Partnership and make copies thereof or extracts therefrom, and to
discuss the affairs, finances and accounts of the Partnership with the
principal officers of the General Partner, all at such reasonable
times and as often as the Lender may reasonably request.
(d) Conduct of Business, Licenses and Permits, Maintenance of
Properties. At all times (i) cause to be done all things necessary to
maintain, preserve and renew its existence as a limited partnership
organized under the laws of the State of New York; (ii) preserve and
keep in force and effect all licenses and permits necessary to the
conduct of its businesses; (iii) conduct the business of the
Partnership in conformity with all applicable laws, rules and
regulations; and (iv) maintain and keep its properties in good repair,
working order and condition, and from time to time make all necessary
and proper repairs, renewals and replacements, so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times.
(e) Debt. Duly and punctually pay or cause to be paid the
principal of and the interest on all Debt heretofore or hereafter
incurred or assumed by the Partnership, when and as the same shall
become due and payable, unless such Debt be renewed or extended, and
faithfully observe, perform and discharge all the covenants,
conditions and obligations which are imposed on the Partnership, by
any and all indentures and other agreements securing or evidencing
such Debt or pursuant to which such Debt is issued, and not permit to
occur any act or omission which is or may be declared to be a default
thereunder; provided, however, that the Partnership shall not be
required to make any payment or to take any other action by reason of
the provisions of this Section 8(e) at any time while it shall be
contesting in good faith its obligations to make such payment or to
take such action, and the Partnership shall have set aside on its
books adequate reserves with respect thereto.
(f) Insurance. Without any cost or expense to the Lender, maintain
or cause to be maintained in effect for so long as the Loan remains
outstanding, with insurers of recognized responsibility, insurance on
all of its properties and assets against physical loss, damage by
fire, explosion and such other risks, liability for bodily injury and
third-party damage, product liability insurance, marine insurance, and
such further coverages as shall be required by provisions of the
Security Documents. All such insurances shall be reasonably
acceptable to the Lender in form, substance and coverage. At the
request of the Lender, the Partnership shall promptly make available
to the Lender, as the case may be, certificates, policies or other
evidence reasonably satisfactory to the Lender, as the case may be, of
compliance with this Section 8(f).
(g) Taxes. Duly pay and discharge all taxes, assessments and
governmental charges upon or against the Partnership or its properties
or any part thereof or upon the income or profits therefrom, as well
as all claims for labor, materials or supplies which if unpaid might
by law become a Lien upon any property of the Partnership before the
same shall become delinquent and before penalties accrue thereon,
unless and to the extent that the same are being contested in good
faith and by appropriate proceedings and the Partnership shall have
set aside on its books adequate reserves with respect thereto.
(h) Working Capital. Maintain at all times Working Capital in an
amount not to exceed $300,000.
(i) Debt to Worth Ratio. Maintain at all times a ratio of Debt to
Tangible Net Worth of not higher than 1.4 to 1.
(j) Actions or Proceedings. Promptly notify the Lender of the
institution of any action, suit or proceeding affecting or which might
affect the Partnership or any of its properties or rights, before any
court, arbitrator or administrative or governmental body, which, if
adversely determined, might materially adversely affect the
properties, assets and/or business or financial condition of the
Partnership.
(k) Further Assurances. Execute, acknowledge and deliver any and
all such further assurances, mortgages, pledges, assignments, security
documents and other instruments, and take such other actions and
furnish such opinions of counsel as may reasonably be requested by the
Lender (and as may be satisfactory in form and substance to it) in
order to perfect, safeguard and protect the rights, interest, benefits
and powers of the Lender in respect of and under this Agreement and
all documents executed in connection herewith and supplementary hereto
(including, without limitation, the Security Documents).
(l) Cash Flow Schedules. Upon the Lender's request, furnish to the
Lender, (i) on or before April 30 of each year, a cash flow schedule,
prepared on an accrual accounting basis, setting forth its cash flow
projections for each of the 12 consecutive months beginning with April
of that year; and (ii) as soon as available but in no event later than
60 days after the end of each quarter, (A) a cash flow schedule,
prepared on an accrual accounting basis, setting forth its actual cash
flow for that month and (B) equipment manager statements of income and
expenses of assets managed for each of the Vessels.
Section 9. Negative Covenants. The Partnership covenants and agrees that,
until payment in full of the Note issued hereunder and interest thereon
and of all other amounts due hereunder, it will not:
(a) Restrictions on Distributions. Directly or indirectly make any
payment or distribution of any kind to any general or limited partner
of the Partnership or to any of their respective Affiliates (as
hereinafter defined), without the expressed prior written consent of
the Lender. As used herein, a partner's "Affiliate" is any entity or
person who directly or indirectly through one or more intermediaries
controls, is controlled by or is under common control with such
partner.
(b) Liens. Create, assume or suffer any Lien upon any of its
property or assets, whether now owned or hereafter acquired, or upon
the income or profits therefrom, except
(i) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted;
(ii) other Liens incidental to the conduct of its business
or the ownership of its property and assets which are not
incurred in connection with the borrowing of money or the
obtaining of advances or credit, and which do not in the
aggregate materially detract from the value of its property or
assets or materially impair the use thereof in the operation of
its business; and
(iii) Liens arising under or created by the terms of the
Security Documents.
(c) Debt. Create, incur, assume or suffer to exist any Funded Debt
or Current Debt, except
(i) Funded Debt or Current Debt comprised of the
Obligations; and
(ii) Debt in favor of the General Partner of the Partnership
which is subordinated to the Obligations.
(d) Loans, Advances, Investment and Contingent Liabilities. Make
or permit to remain outstanding any loan to, or guarantee, endorse or
otherwise be or become liable, directly or indirectly, in connection
with the obligations, stock or dividends of, or own, purchase or
acquire any stock, obligations or securities of, or any other interest
in, or make any capital contribution to, any other Person, except that
(i) the Partnership may own, purchase or acquire (A) commercial paper
maturing not in excess of one year from the date of acquisition and
rated P1 by Xxxxx'x Investors Service, Inc. or A1 by Standard & Poor's
Corporation on the date of acquisition, (B) certificates of deposit
maturing not in excess of one year from the date of acquisition,
eligible banker's acceptances and repurchase agreements, issued by
United States commercial banks having total assets in excess of
$500,000,000, and (C) obligations of the United States Government or
any agency thereof and obligations d by the United States Government,
maturing in each case, not in excess of one year from the date of
acquisition; (ii) the Partnership may endorse negotiable instruments
in the ordinary course of business for deposit or collection; and
(iii) the Partnership may make advances to officers and employees not
to exceed $2,000 at any time outstanding.
(e) Sale of Assets; Liquidation; Dissolution. Merge or consolidate
with any other entity or sell, lease or transfer or otherwise dispose
of all or a substantial part of its assets to any Person, or otherwise
effect any liquidation or dissolution of the Partnership; provided,
however, that SEI II Equipment, Inc. may cease to act as General
Partner of the Partnership so long as the limited partners of the
Partnership replace said SEI II Equipment, Inc. with a successor
General Partner reasonably acceptable to the Lender in writing within
60 days thereafter in accordance with the provisions of the
Partnership Agreement.
(f) Certain Contracts. Enter into or be a party to
(i) any contract providing for the making of loans,
advances or capital contributions to any Person or for the
purchase of any property or services from any Person, in each
case in order primarily to enable such Person to maintain
working capital, net worth or any other balance sheet condition
or to pay debts, dividends or expenses;
(ii) any contract for the purchase of materials, supplies or
other property or services if such contract (or any related
document) requires that payment for such materials, supplies,
or other property or services shall be made regardless of
whether or not delivery of such materials, supplies or other
property or services is ever made or tendered;
(iii) any contract to rent or lease (as lessee) real or
personal property if such contract (or any related document)
provides that the obligation to make payments thereunder is
absolute and unconditional under conditions not customarily
found in commercial leases then in general use or requires that
the lessee purchase or otherwise acquire securities or
obligations of the lessor;
(iv) any contract for the sale or use (as vendor, lessor or
hirer) of materials, supplies or other property, or the
rendering of services, if such contract (or any related
document) requires that payment for such materials, supplies or
other property, or the use thereof, or payment for such
services, shall be subordinated to any indebtedness (of the
purchaser or user of such materials, supplies or other property
or the Person entitled to the benefit of such services) owed or
to be owed to any Person; or
(v) any other contract which, in economic effect, is
substantially equivalent to a guaranty.
(g) Fiscal Year. Change the fiscal year of the Partnership.
(h) Material Change. Make any material change in the character of
the business of the Partnership or materially amend the Agreement of
Limited Partnership of the Partnership.
Section 10. Events of Default. If any one or more of the following events
shall occur and be continuing or shall exist for any reason whatsoever
(and whether such occurrence shall be voluntary or involuntary or come
about or be effected by operation of law or otherwise):
(a) The Partnership shall default in the payment of any installment
of principal of the Note when the same shall become due and payable and
such default shall continue for a period of more than 10 days;
(b) The Partnership shall default in the payment of any interest on
the Note when the same shall become due and payable and such default
shall continue for a period of more than 5 Business Days;
(c) The Partnership shall default in any payment of principal of or
interest on any other liability or obligation having a balance in
excess of $50,000, for money borrowed or received (or any obligation
under any conditional sale or other title retention agreement or any
obligation issued or assumed as full or partial payment for property
whether or not secured by purchase money mortgage or any obligation
under notes payable or drafts accepted representing extensions of
credit) beyond any period of grace provided with respect thereto, or
shall default in the performance of any other agreement, term or
condition contained in any agreement under which any such obligation is
created (or if any other obligation under any such agreement shall
occur and be continuing) if the consequence of such default is to
cause, or to permit the holder or holders of such obligation (or a
trustee on behalf of such holder or holders) to cause, such obligation
to become due prior to its stated ma
(d) Any representation or warranty made by the Partnership herein
or in any writing furnished in connection with or pursuant to this
Agreement shall be false in any material respect on the date as of
which made;
(e) The Partnership shall default in the performance or due
observance of any covenant or agreement contained in Section 4(e),
Section 8(f), Section 8(l) or Section 9 hereof;
(f) The Partnership shall default in the performance or observance
of any other agreement, covenant, term or condition contained herein
and such default shall not have been remedied within 30 days after
written notice thereof shall have been received by the Partnership;
(g) The Partnership shall default in the performance of, compliance
with or observance of any of the provisions of any Security Document;
(h) The Partnership shall make a general assignment for the benefit
of creditors or admit in writing its inability to pay its debts
generally as they become due;
(i) An order for relief under Title 11 of the United States Code
shall be entered against the Partnership;
(j) The Partnership shall petition or apply to any tribunal for the
appointment of a trustee, receiver, custodian or liquidator, or shall
commence any proceedings under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, whether now or hereafter in
effect;
(k) Any such petition or application shall be filed, or any such
proceedings shall be commenced, against the Partnership, and the
Partnership shall either, by any act indicate its approval thereof,
consent thereto or acquiescence therein, or shall fail to have such
petition, application or proceeding dismissed within 30 days, or an
order, judgement or decree shall be entered appointing any such lender,
receiver, custodian or liquidator, or approving the petition in any
such proceedings, and such order, judgement or decree shall remain
unstayed and in effect for more than 30 days;
(l) Any order, judgement or decree shall be entered in any
proceedings against the Partnership decreeing the dissolution of the
Partnership which requires the divestiture of a substantial part of the
assets of the Partnership or which requires the divestiture of assets
that shall have contributed 5% or more of net earnings of the
Partnership for any of the three fiscal years most recently ended, and
such order, judgement or decree remains unstayed and in effect for more
than 30 days;
(m) A final judgement that, with other outstanding final judgements
against the Partnership, exceeds an aggregate of $100,000, shall be
rendered against the Partnership and, within 60 days after entry
thereof, such judgement shall not have been discharged or execution
thereof stayed pending appeal, or, within 60 days after the expiration
of any such stay, such judgement shall not have been discharged; or
(n) SEI II Equipment, Inc. shall no longer be the General Partner
of the Partnership, and the limited partners of the Partnership shall
not have replaced said SEI II Equipment, Inc. with a successor General
Partner reasonably acceptable to the Lender in writing within 60 days
thereafter in accordance with the provisions of the Partnership
Agreement;
then, and in any such event, the Lender may, by written notice to the
Partnership, declare the Note and interest accrued thereon and all other
liabilities of the Partnership hereunder and thereunder to be immediately due
and payable, and the same shall thereupon become immediately due and payable
without presentment, demand, protest or notice of any kind to the Partnership,
all of which are hereby expressly waived. Upon such notice the Lender may, at
its option, resort to any or all other remedies contained in the Security
Documents, in any order, all without releasing the Partnership from any
liability hereunder or under the Note. The Lender shall not be required to
xxxxxxxx any present or future security for, or guaranties of, the Loan, or to
resort to any such security or guaranties in any particular order and the
Partnership hereby waives, to the fullest extent that it lawfully can, (a) any
right it may have to require the Lender or the Trustee to pursue any particular
remedy bef ore proceeding against it, and (b) any right to the benefit of, or
to direct the application of the proceeds of, any such collateral security
under the Security Documents until the Note and all other Obligations have been
paid in full.
Section 11. Participation and Trust. [Intentionally omitted].
Section 12. Miscellaneous.
(a) No delay or failure of the Lender in exercising any right,
remedy, power or privilege hereunder shall affect such right, remedy,
power or privilege; nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such a right,
remedy, power or privilege preclude any further exercise thereof or of
any other right, remedy, power or privilege. The rights and remedies
of the Lender hereunder are cumulative and not exclusive of any rights
or remedies which they or any of them would otherwise have. Any
waiver, permit, consent or approval of any kind or character on the
part of the Lender of any breach or default under this Agreement or any
such waiver of any provision or condition of this Agreement must be in
writing and shall be effective only to the extent in such writing
specifically set forth.
(b) If any one or more of the Events of Default or Defaults
described in Section 10 of this Agreement shall occur, the Lender shall
have the right to set-off against the unpaid balance of its interest in
the Note any debt owing to the Partnership by the Lender, including,
without limitation, any funds in any deposit account now or hereafter
maintained by the Partnership with the Lender, and for such purposes
the Lender shall have and there is hereby granted to and created in
favor of the Lender a possessory security interest in all such deposit
accounts. The Partnership hereby confirms the Lender's right of
banker's lien and set-off, and nothing in this Agreement shall be
deemed any waiver or prohibition of the Lender's right of banker's lien
or set-off.
(c) All representations, warranties, covenants and agreements
contained herein or made in writing in connection herewith shall
survive the execution and delivery of this Agreement and the issuance
of the Note.
(d) The Partnership agrees, whether or not any of the transactions
hereby contemplated shall be consummated, to pay and save the Lender
harmless against liability for the payment of all out-of-pocket
expenses of the Lender arising in connection with the preparation,
execution, putting into effect, administration, amendment, enforcement
and collection of this Agreement and the transactions herein
contemplated, including the reasonable expenses and fees of Special
Counsel and including stamp or other tax liability, together with
interest and penalties, if any, which may be payable or determined to
be payable in respect of the execution and delivery of the Note or this
Agreement. In the event of any action at law or suit in equity in
relation to this Agreement or the Note or any other instrument or
agreement relating to the Loan, or in the event of any judicial,
administrative or governmental proceeding, investigation or inquiry in
relation thereto, the Partnership agrees to nable sum for attorneys'
fees incurred by the Lender in connection with any such action or suit.
The obligations under this Section 12(d) shall survive the payment of
the Note.
(e) Any notice or other communication in connection with this
Agreement shall be deemed to have been given or made when deposited in
the mail, postage prepaid, or, in the case of telegraphic notice, when
delivered to the telegraph company, charges prepaid, or in the case of
notice by Telex when dispatched from any Telex terminal, or in the case
of overnight delivery, when deposited with the overnight delivery
carrier, charges prepaid, addressed, if to the Lender c/x Xxxxxx
Brothers, Inc., Attention: Xxxxxxx Xxxxxxxxxx, 3 World Financial
Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, with copy to Jan
Xxxxx Xxxxxx, Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000; if to the Partnership, c/o SEI II Equipment, Inc.,
General Partner, c/x Xxxxxx Brothers, Inc., Attention: Xxxxxx Xxxxx, 3
World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000; or
in accordance with the latest unrevoked written direction from any
party to the other parties hereto.
(f) This Agreement, the Security Documents and the Note shall be
deemed to be contracts under the laws of the State of New York and for
all purposes shall be governed by and construed in accordance with the
laws of said State. Any suit, action or proceeding instituted against
the Partnership with respect to this Agreement, the Security Documents
and the Note may be brought in any court of competent jurisdiction
located in the State of New York, and, by the execution and delivery of
this Agreement, the Partnership irrevocably waives any objection it may
have or hereafter acquire to, or any right of immunity on the ground of
venue, the convenience of the forum or the jurisdiction of such courts
or from the execution of judgements resulting therefrom, and
irrevocably accepts and submits to the jurisdiction of the aforesaid
courts in any suit, action or proceeding, hereby irrevocably
designating Xxxxxxxx Xxxxxx, Attention: Jan Xxxxx Xxxxxx, One
Mercantile Center, St. Louis, M 01 as its authorized agent for service
of process in connection with any suit, action or proceeding to enforce
this Agreement.
(g) If any provision of this Agreement or the Note shall for any
reason be held invalid or unenforceable by any court or governmental
agency of competent jurisdiction, such invalidity or unenforceability
shall not affect any other provision hereof or thereof, but this
Agreement or the Note, as the case may be, shall be construed as if
such invalid or unenforceable provision had never been contained herein
or therein.
(h) The section and other headings contained in this Agreement are
for reference purposes only and shall not limit or otherwise affect the
meaning or interpretation of this Agreement.
(i) This Agreement may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of
which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute one and the same
instrument; provided, however, that this Agreement shall become
effective only upon its execution by both parties to this Agreement.
(j) This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and assigns; the
Partnership may not assign or transfer any of its rights or Obligations
hereunder without the prior written consent of the Lender.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this Agreement as of the day and year
first above written.
ATTEST: SEI II L.P., Partnership
By: SEI II Equipment, Inc., General Partner
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx, Vice President
BUTTONWOOD LEASING CORPORATION, Lender
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, President
Exhibit A
Form of First Amended and Restated Credit Note
Exhibit B
Form of Ship Mortgage
Exhibit C
Form of Security Agreement
Schedule A
Description of Vessels
BARGE NAME OFFICIAL NUMBER
SEI 2001 BF 641143
SEI 2002 BF 641144
SEI 2003 BF 641145
SEI 2004 BF 641146
SEI 2005 BF 641147
SEI 2006 BF 641148
SEI 2007 BF 641149
SEI 2008 BF 641150
SEI 2009 BF 641151
SEI 2010 BF 641152
SEI 2011 BF 641153
SEI 2012 BF 641154
SEI 2013 BF 641155
SEI 2014 BF 641156
SEI 2015 BF 641157
SEI 2016 BF 641158
SEI 2017 BF 641159
SEI 2018 BF 641160
SEI 2019 BF 641161
SEI 2020 BF 641162
SEI 2021 BF 641163
SEI 2022 BF 641164
SEI 2023 BF 641165
SEI 2024 BF 641166
SEI 2025 BF 641167
