EXHIBIT 10.5(a)
AMENDED AND RESTATED TERM LOAN AGREEMENT
amended and restated as of December 12, 1997
among
XXXXX TOWING CORPORATION
(THE "BORROWER")
XXXXX TRANSPORTATION COMPANY
AND THE OTHER GUARANTORS NAMED HEREIN
(THE "GUARANTORS")
AND
BANCBOSTON LEASING INC.
(THE "LENDER")
AND
BANCBOSTON LEASING INC.
(THE "AGENT")
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION . . . . . . . . . . . . . .-2-
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . .-2-
1.2 Rules of Interpretation . . . . . . . . . . . . . . . . . . -12-
2. TERM LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
2.1 Amendment and Restatement of Existing Loan Agreement;
Assumption of Obligations. . . . . . . . . . . . . . . . . . . . -12-
2.2 The Term Note . . . . . . . . . . . . . . . . . . . . . . . -13-
2.3 Repayment of the Principal of the Term Loan . . . . . . . . -13-
2.4 Optional Prepayment of Term Loan. . . . . . . . . . . . . . -14-
2.5 Interest on The Term Loan . . . . . . . . . . . . . . . . . -15-
3. CERTAIN GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . -16-
3.1 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . -16-
3.2 Funds for Payments. . . . . . . . . . . . . . . . . . . . . -16-
3.2.1 Payments to Lender . . . . . . . . . . . . . . . . . -17-
3.2.2 No Offset, etc . . . . . . . . . . . . . . . . . . . -17-
3.3 Computations. . . . . . . . . . . . . . . . . . . . . . . . -17-
3.4 Inability to Determine Eurodollar Rate. . . . . . . . . . . -17-
3.5 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . -17-
3.6 Additional Costs, etc . . . . . . . . . . . . . . . . . . . -17-
3.7 Capital Adequacy. . . . . . . . . . . . . . . . . . . . . . -18-
3.8 Certificate . . . . . . . . . . . . . . . . . . . . . . . . -19-
3.9 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . -19-
3.10 Interest After Default . . . . . . . . . . . . . . . . . . -19-
3.10.1 Overdue Amounts . . . . . . . . . . . . . . . . . . -19-
3.10.2 Amounts Not Overdue . . . . . . . . . . . . . . . . -19-
4. SECURITY AND GUARANTIES. . . . . . . . . . . . . . . . . . . . . -19-
4.1 Security of Borrower. . . . . . . . . . . . . . . . . . . . -19-
4.2 Guaranties of the Guarantors. . . . . . . . . . . . . . . . -19-
5. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . -19-
5.1 Corporate Authority . . . . . . . . . . . . . . . . . . . . -19-
5.1.1 Incorporation; Good Standing . . . . . . . . . . . . -20-
5.1.2 Authorization. . . . . . . . . . . . . . . . . . . . -20-
5.1.3 Enforceability . . . . . . . . . . . . . . . . . . . -20-
5.2 Governmental Approvals. . . . . . . . . . . . . . . . . . . -20-
5.3 Title to Properties . . . . . . . . . . . . . . . . . . . . -20-
5.4 Financial Statements and Projections. . . . . . . . . . . . -20-
5.4.1 Financial Statements . . . . . . . . . . . . . . . . -20-
5.4.2 Budget . . . . . . . . . . . . . . . . . . . . . . . -20-
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5.5 No Material Changes, etc. . . . . . . . . . . . . . . . . . -21-
5.6 Franchises, Patents, Copyrights, etc. . . . . . . . . . . . -21-
5.7 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . -21-
5.8 No Materially Adverse Contracts, etc. . . . . . . . . . . . -21-
5.9 Compliance With Other Instruments, Laws, etc. . . . . . . . -21-
5.10 Tax Status. . . . . . . . . . . . . . . . . . . . . . . . . -21-
5.11 No Event of Default . . . . . . . . . . . . . . . . . . . . -22-
5.12 Holding Company and Investment Company Acts . . . . . . . . -22-
5.13 Absence of Financing Statements, etc. . . . . . . . . . . . -22-
5.14 Perfection of Security Interest . . . . . . . . . . . . . . -22-
5.15 Certain Transactions. . . . . . . . . . . . . . . . . . . . -22-
5.16 Employee Benefit Plans. . . . . . . . . . . . . . . . . . . -22-
5.17 Purpose; Regulations U and X. . . . . . . . . . . . . . . . -22-
5.18 Subsidiaries, etc . . . . . . . . . . . . . . . . . . . . . -22-
5.19 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . -22-
5.20 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . -23-
5.21 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . -23-
5.22 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . -23-
5.23 Concerning the Vessel . . . . . . . . . . . . . . . . . . . -23-
6. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS . . . . -23-
6.1 Punctual Payment. . . . . . . . . . . . . . . . . . . . . . -23-
6.2 Maintenance of Office . . . . . . . . . . . . . . . . . . . -23-
6.3 Records and Accounts. . . . . . . . . . . . . . . . . . . . -23-
6.4 Financial Statements, Certificates and Information. . . . . -23-
6.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
6.5.1. Defaults. . . . . . . . . . . . . . . . . . . . . . -24-
6.5.2. Environmental Events. . . . . . . . . . . . . . . . -24-
6.5.3. Notification of Claims Against Collateral . . . . . -25-
6.5.4. Notice of Litigation and Judgments. . . . . . . . . -25-
6.6. Corporate Existence; Maintenance of Properties. . . . . . . -25-
6.7 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . -25-
6.8 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
6.9 Inspection of Properties and Books, etc . . . . . . . . . . -25-
6.9.1. General . . . . . . . . . . . . . . . . . . . . . . -25-
6.9.2. Communication with Accountants. . . . . . . . . . . -26-
6.10 Compliance with Laws, Contracts, Licenses, and Permits. . . -26-
6.11 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . -26-
6.12 Approvals . . . . . . . . . . . . . . . . . . . . . . . . . -26-
6.13 Concerning the Vessel . . . . . . . . . . . . . . . . . . . -26-
6.14 Further Assurances. . . . . . . . . . . . . . . . . . . . . -26-
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7. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS. . -26-
7.1 Restrictions on Indebtedness. . . . . . . . . . . . . . . . -27-
7.2 Restrictions on Liens . . . . . . . . . . . . . . . . . . . -27-
7.3 Restrictions on Investments . . . . . . . . . . . . . . . . -27-
7.4 Restricted Prepayments. . . . . . . . . . . . . . . . . . . -28-
7.5 Merger; Consolidation; Subsidiaries . . . . . . . . . . . . -28-
7.5.1. Mergers and Acquisitions. . . . . . . . . . . . . . -28-
7.5.2. Disposition of Assets . . . . . . . . . . . . . . . -28-
7.6 Sale and Leaseback. . . . . . . . . . . . . . . . . . . . . -28-
7.7 Compliance with Environmental Laws. . . . . . . . . . . . . -28-
7.8 [Intentionally Omitted] . . . . . . . . . . . . . . . . . . -28-
7.9 Change of Principal Place of Business or Corporate Name . . -29-
7.10 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . -29-
7.11 Transactions with Affiliates. . . . . . . . . . . . . . . . -29-
7.12 Business Activities . . . . . . . . . . . . . . . . . . . . -29-
7.13 Negative Pledge . . . . . . . . . . . . . . . . . . . . . . -29-
7.14 Additional Guarantors . . . . . . . . . . . . . . . . . . . -29-
7.15 Other Debt Agreements . . . . . . . . . . . . . . . . . . . -29-
8. FINANCIAL COVENANTS OF THE BORROWER AND THE GUARANTORS . . . . . -29-
8.1 Debt Service. . . . . . . . . . . . . . . . . . . . . . . . -29-
8.2 Leverage. . . . . . . . . . . . . . . . . . . . . . . . . . -30-
9. CONDITIONS TO EFFECTIVE DATE . . . . . . . . . . . . . . . . . . -30-
9.1 Loan Documents. . . . . . . . . . . . . . . . . . . . . . . -30-
9.2 Certified Copies of Charter Documents . . . . . . . . . . . -30-
9.3 Corporate Action. . . . . . . . . . . . . . . . . . . . . . -30-
9.4 Incumbency Certificate. . . . . . . . . . . . . . . . . . . -30-
9.5 Validity of Liens . . . . . . . . . . . . . . . . . . . . . -30-
9.6 Perfection Certificate and UCC Search Results . . . . . . . -30-
9.7 Certificates of Insurance . . . . . . . . . . . . . . . . . -30-
9.8 Solvency Certificate. . . . . . . . . . . . . . . . . . . . -30-
9.9 Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . -31-
10. EVENTS OF DEFAULT; ACCELERATION; ETC . . . . . . . . . . . . . . -31-
10.1 Events of Default and Acceleration. . . . . . . . . . . . . -31-
10.2 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . -34-
10.3 Distribution of Collateral Proceeds . . . . . . . . . . . . -34-
11. SETOFF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
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12. EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
13. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . -36-
14. SURVIVAL OF COVENANTS, ETC . . . . . . . . . . . . . . . . . . . -36-
15. ASSIGNMENT AND PARTICIPATION . . . . . . . . . . . . . . . . . . -37-
15.1 Assignment by the Lender. . . . . . . . . . . . . . . . . . -37-
15.2 Participations. . . . . . . . . . . . . . . . . . . . . . . -37-
15.3 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . -37-
15.4 Miscellaneous Assignment Provisions . . . . . . . . . . . . -37-
15.5 Assignment by Borrower; Guarantors. . . . . . . . . . . . . -37-
16. NOTICES, ETC . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
17. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . -38-
18. HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
19. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . -39-
20. ENTIRE AGREEMENT, ETC. . . . . . . . . . . . . . . . . . . . . . -39-
21. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . -39-
22. CONSENTS, AMENDMENTS, WAIVERS, ETC . . . . . . . . . . . . . . . -39-
23. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . -39-
24. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION. . . . . . . . . . -40-
24.1 Sharing of Information with Section 20 Subsidiary . . . . . -40-
24.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . -40-
24.3 Prior Notification. . . . . . . . . . . . . . . . . . . . . -40-
24.4 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . -41-
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SCHEDULES
Schedule 1.1(u) Unrestricted Subsidiaries
Schedule 5.3 Title to Properties; Leases
Schedule 5.16 Employee Benefit Plans
Schedule 5.18 Subsidiaries; Joint Ventures
Schedule 5.19 Real Property
Schedule 5.22 Insurance
Schedule 6.2 Chief Executive Offices
Schedule 7.1 Existing Indebtedness
Schedule 7.2 Existing Liens
Schedule 7.3 Existing Investments
Schedule 7.4.1 Individuals Holding Redeemable Stock
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Guaranty
Exhibit C Form of Compliance Certificate
AMENDED AND RESTATED TERM LOAN AGREEMENT
This AMENDED AND RESTATED TERM LOAN AGREEMENT (together with the exhibits
and schedules hereto, this "Loan Agreement") is dated as of December 12, 1997,
by and among XXXXX TOWING CORPORATION (the "Borrower") a Delaware corporation
having its principal place of business at Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxx 00000, XXXXX TRANSPORTATION COMPANY ("Xxxxx"), each of the Persons
executing the signature pages hereto as a guarantor (together with Xxxxx, each a
"Guarantor" and collectively, the "Guarantors"), BANCBOSTON LEASING INC. (the
"Lender") and BANCBOSTON LEASING INC., as collateral agent (the "Agent").
WHEREAS, pursuant to a Construction and Term Loan Agreement, dated as of
May 16, 1997 (the "Existing Loan Agreement") among Interlake Transportation,
Inc. ("Interlake"), Interlake Holding Company ("Holdings"), The Interlake
Steamship Company ("Steamship" and together with Holdings, the "Interlake
Guarantors"), BankBoston, N.A., as construction lender, the Lender and the
Agent, the Lender made a term loan in the principal amount of $3,500,000 to
Interlake (the "Term Loan"), the proceeds of which were used to refinance
Indebtedness incurred by Interlake in connection with the acquisition of the
Vessel (defined below);
WHEREAS, pursuant to an Agreement, dated as of the date hereof, between
Interlake and the Borrower, Interlake has transferred the Vessel to the Borrower
(the "April Transfer"), subject to the Vessel Mortgage;
WHEREAS, as a condition to the Lender's consent to the April Transfer,
pursuant to Section 2.1 hereof, (i) the Borrower has agreed to assume all of the
obligations of Interlake under the Existing Loan Agreement with respect to the
outstanding amount of the Term Loan pursuant to the terms of this Loan Agreement
and (ii) the Guarantors have agreed to assume all of the obligations of the
Interlake Guarantors under the Existing Loan Agreement with respect to the
outstanding amount of the Term Loan; and
WHEREAS, the parties hereto wish to amend and restate that portion of the
Existing Loan Agreement relating to the Term Loan to reflect the April Transfer,
the assumption by the Borrower of Interlake's obligations under the Existing
Loan Agreement with respect to the outstanding amount of the Term Loan, and the
assumption by the Guarantors of the obligations of the Interlake Guarantors
under the Existing Loan Agreement with respect to the outstanding amount of the
Term Loan.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
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1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1 DEFINITIONS. The following terms shall have the meanings set forth in
this Section 1 or elsewhere in the provisions of this Loan Agreement referred to
below:
AFFILIATE. Any Person that would be considered to be an affiliate of
the Borrower or a Guarantor under Rule 144(a) of the Rules and Regulations of
the Securities and Exchange Commission, as in effect on the date hereof, if the
Borrower or such Guarantor were issuing securities.
AGENT. As defined in the first paragraph hereof.
APRIL TRANSFER. As defined in the preamble hereto.
BALANCE SHEET DATE. December 31, 1996.
BASE RATE. The higher of (a) the annual rate of interest announced
from time to time by BKB at its head office in Boston, Massachusetts, as its
"base rate" or (b) one-half of one percent (1/2%) above the Federal Funds
Effective Rate. For the purposes of this definition, "Federal Funds Effective
Rate" shall mean, for any day, the rate per annum equal to the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day on such
transactions received by BKB from three funds brokers of recognized standing
selected by BKB.
BASE RATE LOAN(S). All or any portion of the Term Loan bearing
interest calculated by reference to the Base Rate.
BKB. BankBoston, N.A.
BORROWER. As defined in the first paragraph hereof.
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
CAPITALIZED LEASES. Leases under which the Borrower or a Guarantor is
the lessee or obligor, the discounted future rental payment obligations under
which are required to be capitalized on the balance sheet of the lessee or
obligor in accordance with GAAP.
CLOSING DATE. May 16, 1997.
CODE. The Internal Revenue Code of 1986.
COLLATERAL. All of the property, rights and interests of the Borrower
that are or are intended to be subject to the security interests created by the
Security Documents.
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COMMITMENT. The Lender's commitment to maintain the Term Loan, as the
same may be reduced from time to time; or if such commitment is terminated
pursuant to the provisions hereof, zero.
COMPLIANCE CERTIFICATE. See Section 6.4(d) hereof.
CONSOLIDATED OR CONSOLIDATED. With reference to any term defined
herein, shall mean that term as applied to the accounts of Xxxxx and its
Restricted Subsidiaries, consolidated in accordance with GAAP.
CONSOLIDATED DEBT SERVICE. As of the end of each fiscal quarter of
Xxxxx, the aggregate amount of Debt Service of Xxxxx and its Restricted
Subsidiaries for the period of the four consecutive fiscal quarters then ending,
determined on a consolidated basis for such Persons in accordance with GAAP.
CONSOLIDATED EBITDA. As of the end of each fiscal quarter of Xxxxx,
the aggregate amount of EBITDA of Xxxxx and its Restricted Subsidiaries for the
period of the four consecutive fiscal quarters then ending, determined on a
consolidated basis for such Persons in accordance with GAAP.
CONSOLIDATED FUNDED DEBT. As at the end of each fiscal quarter of
Xxxxx, the aggregate amount of Funded Debt of Xxxxx and its Restricted
Subsidiaries as at such date, determined on a consolidated basis for such
Persons in accordance with GAAP.
CONSOLIDATED OPERATING CASH FLOW. As of the end of each fiscal
quarter of Xxxxx, the aggregate amount of Operating Cash Flow of Xxxxx and its
Restricted Subsidiaries for the period of the four consecutive fiscal quarters
then ending, determined on a consolidated basis for such Persons in accordance
with GAAP.
CONVERSION REQUEST. A notice given by the Borrower to the Lender of
the Borrower's election to convert or continue all or a portion of the Term Loan
in accordance with Section 2.5.
DEBT SERVICE. For any fiscal period of any Person, an amount equal to
the SUM of (a) the Total Interest Expense of such Person for such period PLUS
(b) the Total Financial Obligations of such Person for such period, as
determined in accordance with GAAP.
DEBT SERVICE COVERAGE RATIO. The ratio of (a) Consolidated Operating
Cash Flow to (b) Consolidated Debt Service.
DEFAULT. See Section 10 hereof.
DISTRIBUTION. The declaration or payment of any dividend on or in
respect of any shares of any class of capital stock of the Borrower or the
Guarantors, other than dividends payable solely in shares of common stock of the
Borrower or the Guarantors; the purchase, redemption, or other retirement by the
issuer thereof of any shares of any class of capital stock of the Borrower or
the Guarantors, directly or indirectly; the return of capital by the Borrower or
the Guarantors to their shareholders as such; or any other distribution on or in
respect of any shares of any class of capital stock of the Borrower or the
Guarantors.
DOLLARS or $. Dollars in lawful currency of the United States of
America.
DOMESTIC LENDING OFFICE. Initially the Lender's Head Office,
thereafter such other office as the Lender may, from time to time, designate by
written notice to the Borrower.
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DRAWDOWN DATE. The date on which the Term Loan was originally made
pursuant to the Existing Credit Agreement and the date on which all or any
portion of the Term Loan is converted or continued in accordance with Section
2.5.
EARNINGS BEFORE INTEREST AND TAXES. The earnings (or loss) from the
operations of any Person for any period, after all expenses and other proper
charges but before payment or provision of any income taxes or interest expense
for such period, determined in accordance with GAAP.
EBITDA. With respect to any Person, and for any period, the Net
Income of such Person for such period, after all expenses and other proper
charges but before payment or provision for any income taxes, tax distributions,
interest expense, depreciation or amortization for such period, determined in
accordance with GAAP, and after eliminating therefrom all extraordinary
nonrecurring items of income (or deficit).
EFFECTIVE DATE. The first date on which the conditions set forth in
Section 9 have been satisfied and the Existing Loan Agreement is amended and
restated pursuant the provisions hereof.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning
of Section 3(2) of ERISA maintained or contributed to by the Borrower, any
Guarantor or any ERISA Affiliate, other than a Multiemployer Plan.
ENVIRONMENTAL LAWS. Any federal, state, county, regional or local
law, statute, or regulation pertaining to environmental matters, including
without limitation, the Resource Conservation and Recovery Act of 1976, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, the
Superfund Amendments and Reauthorization Act of 1986, the Federal Clean Water
Act, the Federal Clean Air Act, the Toxic Substances Control Act, in each case
as amended, and all rules, regulations, judgments, decrees, orders and licenses
arising under or relating to such laws or relating to environmental matters and
which are applicable to the Borrower or the Guarantors.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE. Any Person which is treated as a single employer
with the Borrower or any Guarantor under Section 414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has not
been waived.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
EURODOLLAR BUSINESS DAY. Any day on which commercial banks are open
for international business (including dealings in Dollar deposits) in London or
such other eurodollar interbank market as may be selected by the Lender in its
sole discretion acting in good faith.
EURODOLLAR LENDING OFFICE. Initially, the Lender's Head Office;
thereafter, such other office of the Lender, if any, that shall be making or
maintaining Eurodollar Rate Loans.
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EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (a) the rate per annum (rounded upwards
to the nearest 1/16 of one percent) at which the Lender's Eurodollar Lending
Office is offered Dollar deposits two (2) Eurodollar Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations of such Eurodollar
Lending Office are customarily conducted at or about 10:00 a.m., Boston time,
for delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of the Eurodollar
Rate Loan to which such Interest Period applies, DIVIDED BY (b) a number equal
to 1.00 minus the Eurocurrency Reserve Rate, if applicable.
EURODOLLAR RATE LOAN(S). All or any portion of the Term Loan bearing
interest calculated by reference to the Eurodollar Rate.
EVENT OF DEFAULT. See Section 10 hereof.
EXISTING LOAN AGREEMENT. As defined in the preamble hereto.
FIXED RATE. For any Interest Period with respect to all or any
portion of the Term Loan, the rate determined by the Lender, at or about the
Drawdown Date of the applicable Fixed Rate Loan, in its sole discretion, acting
in good faith, to be its cost of funds for funding all or such portion of such
Loan for the Interest Period relating to such Loan. The Borrower may request
the Lender to quote the Borrower the Fixed Rate, by giving the Lender at least
three (3) Business Days notice before the requested Drawdown Date of any such
Loan. The Lender will, as promptly as practicable, notify the Borrower by
telephone of the Fixed Rate applicable to such Loan.
FIXED RATE LOAN. All or any portion of the Term Loan bearing interest
calculated by reference to the Fixed Rate.
FUNDED DEBT. With respect to any Person, the aggregate amount of all
Indebtedness of such Person for borrowed money (other than short-term trade
credit), the deferred purchase price of assets (other than short-term trade
credit) and Capitalized Leases.
GAAP. (a) When used in Section 8, whether directly or indirectly
through reference to a capitalized term used therein, means (i) principles that
are consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, in effect for the fiscal year
ended on the Balance Sheet Date, and (ii) to the extent consistent with such
principles, the accounting practice of Xxxxx and its Subsidiaries reflected in
its financial statements for the year ended on the Balance Sheet Date, and (b)
when used in general, other than as provided above, means principles that are
(i) consistent with the principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in effect from time to time
and (ii) consistently applied with past financial statements of Xxxxx and its
Subsidiaries adopting the same principles, PROVIDED that in each case referred
to in this definition of "GAAP" a certified public accountant would, insofar as
the use of such accounting principles is pertinent, be in a position to deliver
an unqualified opinion (other than a qualification regarding changes in GAAP) as
to financial statements in which such principles have been properly applied.
GOVERNMENTAL AUTHORITY. The United States of America, any State
thereof, any political subdivision thereof, and any agency, authority,
department, commission, board, bureau, or instrumentality of any of them
(including without limitation the Federal Maritime Commission, MARAD, and the
United States Coast Guard).
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower,
any Guarantor or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
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GUARANTORS. As defined in the first paragraph hereof.
GUARANTY. The Guaranty, dated as of the date hereof, made by the
Guarantors in favor of the Lender, pursuant to which the Guarantors have
guaranteed to the Lender the payment and performance of the Obligations,
substantially in the form of EXHIBIT B attached hereto, and each additional
guaranty of the obligations delivered pursuant to Section 7.14 hereof.
HAZARDOUS SUBSTANCES. Any hazardous waste, as defined by 42 U.S.C.
Section 9601(5), any hazardous substances as defined by 42 U.S.C. Section
9601(14), any pollutant or contaminant as defined by 42 U.S.C. Section 9601(33)
and any toxic substances, oil or hazardous materials or other chemicals or
substances regulated by any Environmental Laws.
INDEBTEDNESS. With respect to any Person, (a) every obligation of
such Person for money borrowed, (b) every obligation of such Person evidenced by
bonds, debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or businesses,
(c) every reimbursement obligation of such Person with respect to letters of
credit, bankers' acceptances or similar facilities issued for the account of
such Person, (d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (but excluding (i) trade
accounts payable or accrued liabilities arising in the ordinary course of
business which are not overdue by 60 days or more or are being contested in good
faith and (ii) obligations arising under construction contracts for the
construction of qualified vessels substituted pursuant to the terms of the
Senior Indenture), (e) interest accrued after the commencement of any
bankruptcy, insolvency, receivership or similar proceedings and other interest
that would have accrued but for the commencement of such proceedings, (f) every
Capitalized Lease of such Person, (g) the maximum fixed redemption or repurchase
price of preferred stock of such Person at the time of determination, (h) every
obligation of the type referred to in clauses (a) through (g) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable, directly or indirectly, as
obligor, guarantor or otherwise. Any reference in this definition to
indebtedness shall be deemed to include any renewals, extensions, refundings,
amendments and modifications to any such indebtedness or any indebtedness issued
in exchange for such indebtedness.
INELIGIBLE SECURITIES. Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1993 (12 U.S.C. Section 24, Seventh), as amended.
INTEREST PAYMENT DATE. (a) As to any Fixed Rate Loan, the last day of
each successive quarterly period of three months following the Drawdown Date
thereof and in addition the last day of the Interest Period relating thereto;
(b) as to any Base Rate Loan, the last day of the calendar quarter which
includes the Drawdown Date thereof; and (c) as to any Eurodollar Rate Loan in
respect of which the Interest Period is (i) three (3) months or less, the last
day of such Interest Period and (ii) more than three (3) months, the date that
is three (3) months from the first day of such Interest Period and, in addition,
the last day of such Interest Period.
INTEREST PERIOD. With respect to all or any portion of the Term Loan,
(a) initially, the period commencing on the Drawdown Date of such Loan and
ending on the last day of one of the periods set forth below: (i) for any Fixed
Rate Loan, four (4) years, (ii) for any Base Rate Loan, the last day of the
calendar quarter; and (iii) for any Eurodollar Rate Loan, 1, 2, 3 or 6 months;
and (b) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Conversion Request;
PROVIDED that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar Business Day
unless the result of such
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extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the immediately preceding
Eurodollar Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the next
succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in Section
2.5 hereof, the Borrower shall be deemed to have requested a conversion of the
affected Eurodollar Rate Loan or Fixed Rate Loan to a Base Rate Loan on the last
day of the then current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Eurodollar Business Day of a
calendar month; and
(e) any Interest Period with respect to all or any portion of the
Term Loan, that would otherwise extend beyond the Maturity Date shall end on the
Maturity Date.
INTERLAKE. As defined in the preamble hereto.
INTERLAKE GUARANTORS. As defined in the preamble hereto.
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
LENDER. As defined in the first paragraph hereof.
LENDER'S HEAD OFFICE. The Lender's head office located at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other location as the Lender may
designate by written notice to the Borrower from time to time.
LENDER'S SPECIAL COUNSEL. Xxxxxxx Xxxx LLP, or such other counsel as
may be approved by the Lender.
LEVERAGE RATIO. The ratio of (a) Consolidated Funded Debt to (b)
Consolidated EBITDA.
LOAN. The Term Loan.
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LOAN AGREEMENT. As defined in the first paragraph hereof.
LOAN DOCUMENTS. This Loan Agreement, the Note and the Security
Documents.
MAKE-WHOLE AMOUNT. With respect to any prepayment of a Fixed Rate
Loan, an amount determined by the Lender pursuant to the following formula:
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Make Whole = (R-T) X P X D
Amount 360
As used in this definition of "Make-Whole Amount",
"R" means the effective rate of interest quoted to the Lender by the
Treasury Division of BKB, in accordance with its customary procedures, for
deposits of funds with BKB on the Drawdown Date of such Fixed Rate Loan, in the
principal amount of such Fixed Rate Loan and for a number of days equal to the
number of days contained in the Interest Period relating to such Fixed Rate
Loan.
"T" means the effective rate of interest at which United States
Treasury instruments maturing on the last day of the Interest Period relating to
such Fixed Rate Loan, and in the same amount as the amount of such Fixed Rate
Loan so prepaid, can be purchased by BKB on the date of such prepayment.
"P" means the amount of principal so prepaid.
"D" means the number of days remaining in the Interest Period relating
to such Fixed Rate Loan, as of the date of such prepayment.
MARAD. The United States Maritime Administration.
MATURITY DATE. May 16, 2005.
XXXXX. As defined in the first paragraph hereof.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower, any
Guarantor or any ERISA Affiliate.
NOTE. See Section 2.2 hereof.
NOTE RECORD. The grid attached to the Note, or the continuation of
such grid, or any other similar record, including computer records, maintained
by the Lender with respect to the Term Loan.
NET INCOME. The consolidated net income (or deficit) of Xxxxx and its
Restricted Subsidiaries, determined in accordance with GAAP, PROVIDED that (a)
the net income of any Person which is not a wholly-owned Subsidiary of Xxxxx or
any of its Restricted Subsidiaries but which is consolidated with Xxxxx or any
of its Restricted Subsidiaries or is accounted for by Xxxxx or any of its
Restricted Subsidiaries by the equity method of accounting shall be included for
the purpose of determining net income only to the extent of the amount of cash
dividends or cash distributions paid to Xxxxx or its Restricted Subsidiaries;
(b) the net income of any Person acquired by Xxxxx or any of its Restricted
Subsidiaries or a Subsidiary of Xxxxx or any of its Restricted Subsidiaries in a
pooling of interests transaction for any period prior
- 10 -
to the date of such acquisition shall be excluded; (c) the net income of any
Restricted Subsidiary of Xxxxx that is subject to restrictions at such time,
direct or indirect, on the payment of dividends or the making of distributions
to Xxxxx or any of its Restricted Subsidiaries shall be excluded to the extent
of such restrictions (other than restrictions imposed by applicable law); (d)
the net income of (i) any Unrestricted Subsidiary and (ii) any Subsidiary of
which less than 80% of whose securities having the right (apart from the right
under special circumstances) to vote in the election of directors are owned by
Xxxxx or its wholly-owned Restricted Subsidiaries shall be included only to the
extent of the amount of cash dividends or cash distributions actually paid by
such Subsidiary to Xxxxx or a wholly-owned Restricted Subsidiary of Xxxxx net of
any amounts invested in or otherwise transferred to any Unrestricted
Subsidiaries by Xxxxx or its Restricted Subsidiaries in excess of $5,000,000;
(e) in the case of Xxxxx, the net income attributable to any business,
properties or assets acquired (by way of merger, consolidation, purchase or
otherwise) by Xxxxx or any Restricted Subsidiary of Xxxxx for any period prior
to the date of such acquisition shall be excluded; and (f) all extraordinary
gains and losses, and any gain or loss realized upon the termination of any
employee pension benefit plan, in respect of dispositions of assets other than
in the ordinary course of business and any one-time increase or decrease to net
income which is required to be recorded because of the adoption of new
accounting policies, practices or standards required by GAAP, shall be excluded.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of
the Borrower, the Guarantors and/or their affiliates to the Lender and the
Agent, individually or collectively, existing on the date of this Loan Agreement
or arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Loan Agreement or any of the other Loan Documents or in
respect of the Loan, the Note or any other instruments at any time evidencing
any thereof.
OPERATING CASH FLOW. With respect to any Person and any particular
fiscal period, an amount equal to (a) such Person's Earnings Before Interest and
Taxes for such period, PLUS (b) all depreciation and amortization charges for
such period, in each case as determined in accordance with GAAP, MINUS (c) the
aggregate amount of taxes payable by such Person in cash with respect to such
period.
OUTSTANDING. With respect to the Term Loan, the aggregate unpaid
principal thereof as of any date of determination.
PARENT CREDIT AGREEMENT. The Revolving Credit Agreement, dated as of
July 11, 1994 among Xxxxx, the Restricted Subsidiaries named therein,
BankBoston, N.A. (f/k/a The First National Bank of Boston), individually and as
agent for itself and the other banks which are or may become a party thereto,
which term as used herein shall include any refinancing thereof or replacement
financing therefor.
PBGC. The Pension Benefit Guaranty Corporation created by Section
4002 of ERISA and any successor entity or entities having similar
responsibilities.
PERFECTION CERTIFICATE. The "Perfection Certificate" as defined in
the Security Agreements.
PERMITTED LIENS. Liens, security interests and other encumbrances
permitted by Section 7.2.
PERSON. Any individual, corporation, partnership, trust, limited
liability company, unincorporated association, business, or other legal entity,
and any government or any governmental agency or political subdivision thereof.
REQUIREMENTS. Any law, ordinance, code, order, rule or regulation of
any Governmental Authority relating in any way to the ownership, use, occupancy
and operation of the Vessel.
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RESTRICTED PREPAYMENT. As to any Person, any payment or prepayment of
principal or repurchase of any Indebtedness of such Person in advance of the
scheduled maturity thereof (as the terms of such Indebtedness are in effect on
the Effective Date).
RESTRICTED SUBSIDIARY. Any Subsidiary of Xxxxx that is designated as
a Restricted Subsidiary under the Parent Credit Agreement (all of which, other
than the Borrower, Xxxxxx Bay Towing Company of Pennsylvania, a Pennsylvania
corporation, and Xxxxxx Bay Towing Company of Virginia, a Virginia corporation,
are Guarantors hereunder). Xxxxx and the Borrower hereby agree that if any
inactive Subsidiaries of Xxxxx (including, without limitation, Xxxxxx Bay Towing
Company of Pennsylvania and Xxxxxx Bay Towing Company of Virginia) cease to be
inactive, they shall become Guarantors hereunder.
SECTION 20 SUBSIDIARY. A Subsidiary of the bank holding company
controlling the Lender and/or BKB, which Subsidiary has been granted authority
by the Federal Reserve Board to underwrite and deal in certain Ineligible
Securities.
SECURITY DOCUMENTS. The Guaranty and the Vessel Mortgage.
SENIOR INDENTURE. The Indenture, dated as of July 11, 1994, between
Xxxxx and Fleet National Bank, as successor to Shawmut Bank, N.A., as trustee,
which term as used herein shall include any additional indenture or other
governing documentation relating to any refinancing of, or replacement financing
for, the Senior Notes.
SENIOR NOTES. The promissory notes in the original aggregate
principal amount of $80,000,000 issued by Xxxxx pursuant to the Senior
Indenture, which term as used herein shall include any notes issued in
refinancing thereof or replacement financing therefor.
SUBSIDIARY. Any corporation, trust, association, or other business
entity of which the designated parent shall at any time own, directly or
indirectly, at least a majority (by number of votes) of the outstanding voting
stock.
TERM LOAN. As defined in the first Whereas clause hereof, it being
understood that such term as used herein shall refer to the $3,500,000 term loan
originally made to Interlake by the Lender pursuant to the Existing Loan
Agreement, the outstanding portion of which is hereby assumed by the Borrower
and amended and restated hereby, as described in Section 2.1 hereof.
TOTAL FINANCIAL OBLIGATIONS. With respect to any fiscal period and
any Person, an amount equal to the sum of all principal payments on long-term
Indebtedness that become due and payable or that are to become due and payable
during such fiscal period pursuant to any agreement or instrument to which such
Person is a party relating to the borrowing of money or the obtaining of credit
or in respect of Capitalized Leases.
TOTAL INTEREST EXPENSE. For any Person, for any period the aggregate
amount of interest in respect of Indebtedness (including amortization of
original issue discount on any Indebtedness and amortization of deferred
financing costs, in each case calculated in accordance with GAAP) and the
interest component of Indebtedness in respect of Capitalized Leases, paid or
accrued (without duplication) by such Person and its Restricted Subsidiaries
during such period, determined on a consolidated basis in accordance with GAAP.
For purposes of this definition, (a) interest on Indebtedness determined on a
fluctuating basis for periods succeeding the date of determination shall be
deemed to accrue at a rate equal to the rate of interest on such Indebtedness as
in effect on the date of determination and (b) interest on Indebtedness in
respect of Capitalized Leases shall be deemed to accrue at an interest rate
reasonably determined by the chief financial officer of such Person to be the
rate of interest implicit in such Indebtedness in respect of Capitalized Leases
in accordance with GAAP.
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TYPE. As to all or any portion of the Term Loan, its nature as a Base
Rate Loan, a Eurodollar Rate Loan or a Fixed Rate Loan.
UNRESTRICTED SUBSIDIARY. Those Subsidiaries of Xxxxx that are not
designated as Restricted Subsidiaries.
VESSEL. The tug "Xxxxx Xxxxx", Official Number: 644241.
VESSEL MORTGAGE. The First Preferred Fleet Mortgage, dated as of
December 11, 1997, by the Borrower, as owner, in favor of the Agent, as
mortgagee.
1.2 RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Loan Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to "the Guarantors" or "any Guarantor" means both (i)
the Guarantors collectively and (ii) each Guarantor individually.
(e) A reference to any Person includes its permitted successors and
permitted assigns.
(f) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting entity
to which they refer.
(g) The words "include", "includes" and "including" are not limiting.
(h) All terms not specifically defined herein or by GAAP, which terms
are defined in the Uniform Commercial Code as in effect in the Commonwealth of
Massachusetts, have the meanings assigned to them therein, with the term
"instrument" being that defined under Article 9 of the Uniform Commercial Code.
(i) Reference to a particular "Section " refers to that section of
this Loan Agreement unless otherwise indicated.
(j) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Loan Agreement as a whole and not to any particular
section or subdivision of this Loan Agreement.
2. TERM LOAN.
2.1 AMENDMENT AND RESTATEMENT OF EXISTING LOAN AGREEMENT; ASSUMPTION OF
OBLIGATIONS. Subject to the terms and conditions set forth herein, the parties
hereto hereby agree that, on and as of the Effective Date, (i) the Borrower
hereby assumes the obligations of Interlake with respect to the outstanding
amount of the Term Loan, (ii) the Guarantors hereby assume the obligations of
the Interlake Guarantors under
- 13 -
the Existing Loan Agreement to the extent applicable to the outstanding amount
of the Term Loan, (iii) Interlake is hereby released of its obligations as
borrower of the Term Loan and the Interlake Guarantors are hereby released of
their obligations as guarantors of Interlake's obligations with respect to the
Term Loan, and (iv) those portions of the Existing Loan Agreement concerning or
relating to the Term Loan shall be amended and restated as provided herein;
PROVIDED, that nothing contained herein shall, except as it relates to the Term
Loan and the guarantees of the Interlake Guarantors in respect of the Term Loan
(A) limit the liability or obligations of Interlake or the Interlake Guarantors
under or with respect to the Existing Loan Agreement, (B) affect in any manner
the rights or remedies of the Lender, the Agent or BKB with respect to any
liability of Interlake or the Interlake Guarantors under or with respect to the
Existing Loan Agreement, or (C) amend or otherwise modify any provision of, the
Existing Loan Agreement, including, without limitation, the liability of
Interlake and the Interlake Guarantors with respect to, the rights and remedies
of the Lender, the Agent and BKB with respect to, and the provisions of the
Existing Loan Agreement relating to, the "Construction Loans" or the "Xxxxxx
Term Loan" (as each such term is defined in the Existing Loan Agreement). Upon
the effectiveness of this Agreement and the other Loan Documents and the proper
recordation of the Vessel Mortgage with the National Vessel Documentation
Center, and evidence thereof having been delivered to the Agent, in each case in
form and substance thereof satisfactory to the Agent, the Agent will, at the
expense of the Borrower, cause to be taken all steps reasonably necessary to
cause the Vessel to be released from the grant of mortgage contained in the
First Preferred Fleet Mortgage, dated as of May 16, 1997, granted by Interlake
in favor of the Agent pursuant to the Xxxxxx Loan Agreement.
2.2 THE TERM NOTE. The Term Loan shall be evidenced by an amended and
restated promissory note of the Borrower in substantially the form of EXHIBIT A
hereto (the "Note"), dated the Closing Date and amended and restated as of the
Effective Date and completed with appropriate insertions. The Note shall be
payable to the order of the Lender in the principal amount of the Term Loan and
representing the obligation of the Borrower to pay to the Lender such principal
amount or, if less, the outstanding amount of the Term Loan, plus interest
accrued thereon, as set forth below. The Borrower irrevocably authorizes the
Lender to make or cause to be made a notation on the Note Record reflecting the
original principal amount of the Term Loan and, at or about the time of the
Lender's receipt of any principal payment on the Note, an appropriate notation
on the Note Record reflecting such payment. The aggregate unpaid amount set
forth on the Note Record shall be PRIMA FACIE evidence of the principal amount
thereof owing and unpaid to the Lender, but the failure to record, or any error
in so recording, any such amount on the Note Record shall not affect the
obligations of the Borrower hereunder or under the Note to make payments of
principal of and interest on the Note when due.
2.3 REPAYMENT OF THE PRINCIPAL OF THE TERM LOAN.
(a) The Borrower promises to pay to the Lender, on each Interest
Payment Date with respect to the Term Loan during any period during which the
Term Loan bears interest at the Fixed Rate, commencing with the Interest Payment
Date next succeeding the Drawdown Date thereof, equal quarterly installments of
principal and interest on the Term Loan, in an amount calculated on the Closing
Date to amortize the principal amount of the Term Loan on a mortgage style basis
over eight (8) years to a remaining principal amount of fifty percent (50%) of
the principal amount of the Term Loan outstanding on the Closing Date. The
Borrower promises to pay the remaining outstanding principal amount of the Term
Loan on the Maturity Date. No amount repaid with respect to the Term Loan may
be reborrowed.
(b) The Borrower promises to pay to the Lender, during any period
during which the Term Loan bears interest at the Base Rate or the Eurodollar
Rate, the principal amount of the Term Loan in equal quarterly installments,
payable on the last day of each fiscal quarter of the Borrower, each in an
amount calculated to amortize the principal amount of the Term Loan to a
remaining principal amount of fifty percent (50%) of the principal amount of the
Term Loan outstanding on the Closing Date. The Borrower promises to pay the
remaining outstanding principal amount of the Term Loan on the Maturity Date.
No amount repaid with respect to the Term Loan may be reborrowed.
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(c) In addition to the repayments required pursuant to Sections
2.3(a) and (b), the Borrower promises to offer to repay the entire outstanding
principal amount of the Term Loan, together with all interest accrued thereon to
the date of repayment, the Make-Whole Amount and the other amounts due under
Section 2.4(a), if applicable, and all other fees and expenses due under this
Loan Agreement (a "Repayment Offer") in connection with any refinancing of, or
replacement financing for, the Parent Credit Agreement or the Senior Notes. The
Borrower will make the Repayment Offer by written notice to the Lender no later
than ten (10) days before the date on which such refinancing or replacement
financing becomes effective. The Lender may, in its sole and absolute
discretion and at any time within thirty (30) days from the receipt of such
Repayment Offer, decline or accept the Repayment Offer by written notice to the
Borrower. If the Lender accepts the Repayment Offer, and if the Borrower has
effected such refinancing or replacement financing, then the Borrower will,
within one hundred twenty (120) days from its receipt of the Lender's acceptance
of the Repayment Offer, repay the entire outstanding principal amount of the
Term Loan, together with all interest accrued thereon to the date of repayment,
the Make-Whole Amount and the other amounts due under Section 2.4(a), if
applicable, and all other fees and expenses due under this Loan Agreement.
Notwithstanding the prohibitions on prepayment set forth in Section 2.4(a)(i),
the Lender may, in its sole and absolute discretion, accept a Repayment Offer
before the date that is two (2) years after the Closing Date, in which case the
prepayment of the outstanding principal amount of the Term Loan, together with
all interest accrued thereon to the date of repayment, the Make-Whole Amount and
the other amounts due under Section 2.4(a), and all other fees and expenses due
under this Loan Agreement, shall be made in accordance with Section 2.4(a)(ii).
(d) In addition to the repayments required pursuant to Sections
2.3(a), (b), and (c), the Borrower promises to offer to repay the entire
outstanding principal amount of the Term Loan, together with all interest
accrued thereon to the date of repayment, the Make-Whole Amount and the other
amounts due under Section 2.4(a), if applicable, and all other fees and expenses
due under this Loan Agreement (a "Change of Control Repayment Offer") upon the
occurrence of any "Change of Control" under, and as defined in, the Senior
Indenture. The Borrower will make the Change of Control Repayment Offer by
written notice to the Lender not later than the earlier to occur of (i) the date
that any notice of such "Change of Control" is given to the trustee under the
Senior Indenture or the holders of the Senior Notes and (ii) ten (10) days after
the occurrence of such Change of Control. The Lender may, in its sole and
absolute discretion and at any time within thirty (30) days from the receipt of
such Change of Control Repayment Offer, decline or accept the Change of Control
Repayment Offer by written notice to the Borrower. If the Lender accepts the
Change of Control Repayment Offer, then the Borrower will, within thirty (30)
days from its receipt of the Lender's acceptance of the Change of Control
Repayment Offer, repay the entire outstanding principal amount of the Term Loan,
together with all interest accrued thereon to the date of repayment, the Make-
Whole Amount and the other amounts due under Section 2.4(a), if applicable, and
all other fees and expenses due under this Loan Agreement. Notwithstanding the
prohibitions on prepayment set forth in Section 2.4(a)(i), the Lender may, in
its sole and absolute discretion, accept a Change of Control Repayment Offer
before the date that is two (2) years after the Closing Date, in which case the
prepayment of the outstanding principal amount of the Term Loan, together with
all interest accrued thereon to the date of repayment, the Make-Whole Amount and
the other amounts due under Section 2.4(a), and all other fees and expenses due
under this Loan Agreement, shall be made in accordance with Section 2.4(a)(ii).
2.4 OPTIONAL PREPAYMENT OF TERM LOAN.
(a) Prepayment of the Term Loan During the Fixed Rate Period. So
long as the Term Loan bears interest calculated by reference to the Fixed Rate,
the following provisions shall apply to the prepayment of the Term Loan:
(i) The Borrower shall have no right to prepay the Term Loan
until the date that is two (2) years after the Closing Date.
(ii) At any time during the period beginning on the date that
is two (2) years after the Closing Date and ending on the day
immediately preceding the date that is three (3) years after the
Closing Date, the Borrower
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shall have the right to prepay the Term Loan, in whole or in
part, upon not less than three (3) Business Days' prior written
notice to the Lender; PROVIDED that (A) the Borrower shall,
together with such prepayment, pay the Lender the Make-Whole
Amount with respect to such principal prepayment PLUS an amount
equal to one percent (1%) of the principal amount of the Term
Loan so prepaid and (B) each partial prepayment shall be in a
principal amount of at least $250,000 or a larger integral
multiple thereof.
(iii) At any time after the date that is three (3) years after
the Closing Date, the Borrower shall have the right to prepay the
Term Loan, in whole or in part, upon not less than three (3)
Business Days' prior written notice to the Lender; PROVIDED that
(A) the Borrower shall, together with such prepayment, pay the
Lender the Make-Whole Amount with respect to the principal amount
so prepaid and (B) each partial prepayment shall be in a
principal amount of at least $250,000 or a larger integral
multiple thereof.
(b) Prepayment of the Term Loan During the Floating Rate Period. So
long as the Term Loan bears interest calculated by reference to the Base Rate or
the Eurodollar Rate, the Borrower shall have the right to prepay the Term Loan,
without penalty and in whole or in part, upon not less than three (3) Business
Days' prior written notice to the Lender; PROVIDED that (i) each partial
prepayment shall be in a principal amount of at least $250,000 or a larger
integral multiple thereof and (ii) no portion of the Term Loan bearing interest
at the Eurodollar Rate may be prepaid pursuant to this Section 2.4(b) except on
the last day of the Interest Period relating thereto, unless the Borrower pays
the Lender all fees and expenses resulting from the prepayment of such portion
of the Term Loan on a day other than the last day of the Interest Period
relating thereto.
(c) In General. Any prepayment of principal of the Term Loan
pursuant to Section 2.4(a) or Section 2.4(b) shall include all interest accrued
to the date of prepayment and shall be applied against the scheduled
installments of principal due on the Term Loan PRO RATA; PROVIDED that, in the
case of a prepayment of a portion of the Term Loan bearing interest at the Fixed
Rate, the payments of principal and interest on the Term Loan determined
pursuant to Section 2.3(a) shall be recalculated to amortize the then-remaining
principal amount of the Term Loan on a mortgage style basis over the remaining
period to the Maturity Date to a principal amount of fifty percent (50%) of the
then remaining principal amount of the Term Loan. No amount prepaid or repaid
with respect to the Term Loan may be reborrowed.
2.5 INTEREST ON THE TERM LOAN.
(a) Interest Rate on the Term Loan. Except as otherwise provided in
Section 3.10, the Term Loan shall bear interest during each Interest Period
relating to all or any portion of the Term Loan at the following rates:
(i) To the extent that all or any portion of the Term Loan
bears interest during such Interest Period at the Fixed Rate, the Term
Loan or such portion shall bear interest during such Interest Period
at the rate per annum equal to the Fixed Rate determined for such
Interest Period PLUS 1.75%.
(ii) To the extent that all or any portion of the Term Loan
bears interest during such Interest Period at the Base Rate, the Term
Loan or such portion shall bear interest during such Interest Period
at the rate per annum equal to the Base Rate determined from time to
time during such Interest Period.
(iii) To the extent that all or any portion of the Term Loan
bears interest during such Interest Period at the Eurodollar Rate, the
Term Loan or such portion shall bear interest during such Interest
Period at the rate per annum equal to the Eurodollar Rate determined
for such Interest Period PLUS 1.75%.
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(b) Interest Rate Options; Notice by Borrower.
(i) After the Closing Date, the Term Loan shall initially
bear interest during the first Interest Period relating thereto at the
Fixed Rate. After such first Interest Period, the Borrower may,
subject to the conditions set forth herein, elect to have the Term
Loan bear interest at the Base Rate, the Eurodollar Rate or the Fixed
Rate; PROVIDED that (A) with respect to any such conversion of a
Eurodollar Rate Loan to a Fixed Rate Loan or a Base Rate Loan, the
Borrower shall give the Lender at least two (2) Business Days' prior
written notice of such election; (B) with respect to any such
conversion of a Fixed Rate Loan or a Base Rate Loan to a Eurodollar
Rate Loan, the Borrower shall give the Lender at least three (3)
Eurodollar Business Days' prior written notice of such election; (C)
with respect to any such conversion of a Eurodollar Rate Loan into a
Fixed Rate Loan or a Base Rate Loan, such conversion shall only be
made on the last day of the Interest Period with respect thereto,
unless the Borrower pays the Lender all fees and expenses resulting
from a conversion on a date other than the last day of an Interest
Period; (D) no Base Rate Loan or Fixed Rate Loan may be converted into
a Eurodollar Rate Loan and no Base Rate Loan or Eurodollar Rate Loan
may be converted into a Fixed Rate Loan when any Default or Event of
Default has occurred and is continuing and (E) any conversion of a
Fixed Rate Loan shall only be made on the last day of the Interest
Period relating thereto. On the date on which such conversion is
being made the Lender shall take such action as is necessary to
transfer the Loan to its Domestic Lending Office or its Eurodollar
Lending Office, as the case may be. Each Conversion Request relating
to the conversion of a Base Rate Loan or a Fixed Rate Loan to a
Eurodollar Rate Loan shall be irrevocable by the Borrower for the
applicable Interest Period.
(ii) Any Loan of any Type may be continued as a Loan of the
same Type upon the expiration of an Interest Period with respect
thereto by compliance by the Borrower with the notice provisions
contained in Section 2.5(b)(i) hereof; PROVIDED that no Eurodollar
Rate Loan or Fixed Rate Loan may be continued as such when any Default
or Event of Default has occurred and is continuing, but shall be
automatically converted to a Base Rate Loan on the last day of the
first Interest Period relating thereto ending during the continuance
of any Default or Event of Default of which officers of the Lender
active upon the Borrower's account have actual knowledge.
(c) Payment of Interest. The Borrower promises to pay interest on
the Term Loan or any portion thereof outstanding during each Interest Period in
arrears on each Interest Payment Date applicable to such Interest Period and on
the Maturity Date.
(d) Amounts, etc. Any portion of the Term Loan bearing interest
calculated by reference to the Eurodollar Rate relating to any Interest Period
shall be in the minimum amount of $500,000. No Interest Period relating to the
Term Loan or any portion thereof bearing interest at a rate calculated by a
reference to the Eurodollar Rate shall extend beyond the date on which a
regularly scheduled installment payment of the principal of the Term Loan is to
be made unless a portion of the Term Loan at least equal to such installment
payment has an Interest Period ending on such date or is then bearing interest
at a rate calculated by reference to the Base Rate.
3. CERTAIN GENERAL PROVISIONS.
3.1 [INTENTIONALLY OMITTED].
3.2 FUNDS FOR PAYMENTS.
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3.2.1 PAYMENTS TO LENDER. All payments of principal, interest, and
any other amounts due hereunder or under any of the other Loan Documents shall
be made to the Lender at the Lender's Head Office or at such other location in
the Boston, Massachusetts, area that the Lender may from time to time designate
by written notice to the Borrower, in each case in immediately available funds.
3.2.2 NO OFFSET, ETC. All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without setoff or
counterclaim and free and clear of and without deduction for any taxes, levies,
imposts, duties, charges, fees, deductions, withholdings, compulsory loans,
restrictions or conditions of any nature now or hereafter imposed or levied by
any jurisdiction or any political subdivision thereof or taxing or other
authority therein unless the Borrower is compelled by law to make such deduction
or withholding. If any such obligation is imposed upon the Borrower with
respect to any amount payable by it hereunder or under any of the other Loan
Documents, the Borrower will pay to the Lender, on the date on which such amount
is due and payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Lender to receive the same
net amount which the Lender would have received on such due date had no such
obligation been imposed upon the Borrower. The Borrower will deliver promptly
to the Lender certificates or other valid vouchers for all taxes or other
charges deducted from or paid with respect to payments made by the Borrower
hereunder or under such other Loan Document.
3.3 COMPUTATIONS. All computations of interest on the Loan and of
commitment or other fees shall be based on a 360-day year and paid for the
actual number of days elapsed. Except as otherwise provided in the definition
of the term "Interest Period" with respect to Eurodollar Rate Loans, whenever a
payment hereunder or under any of the other Loan Documents becomes due on a day
that is not a Business Day, the due date for such payment shall be extended to
the next succeeding Business Day, and interest shall accrue during such
extension. The Outstanding amount of the Loan as reflected on the Note Record
from time to time shall be prima facie evidence of the amount so Outstanding.
3.4 INABILITY TO DETERMINE EURODOLLAR RATE. In the event that, prior to
the commencement of any Interest Period relating to any Eurodollar Rate Loan,
the Lender shall determine that adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate that would otherwise determine the rate of
interest to be applicable to any Eurodollar Rate Loan during any Interest
Period, the Lender shall forthwith give notice of such determination (which
shall be conclusive and binding on the Borrower) to the Borrower. In such event
(a) each Conversion Request with respect to each Eurodollar Rate Loan shall be
automatically withdrawn and shall be deemed a request for a Base Rate Loan, (b)
each Eurodollar Rate Loan will automatically, on the last day of the then
current Interest Period thereof, become a Base Rate Loan, and (c) the
obligations of the Lender to convert Loans of another Type into Eurodollar Rate
Loans shall be suspended until the Lender determines that the circumstances
giving rise to such suspension no longer exist, whereupon the Lender shall so
notify the Borrower.
3.5 ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful for the Lender to maintain Eurodollar
Rate Loans, the Lender shall forthwith give notice of such circumstances to the
Borrower and thereupon (a) the commitment of the Lender to maintain Eurodollar
Rate Loans or convert Base Rate Loans or Fixed Rate Loans to Eurodollar Rate
Loans shall forthwith be suspended and (b) all or any portion of the Term Loan
then Outstanding as a Eurodollar Rate Loan, if any, shall be converted
automatically to a Base Rate Loan on the last day of each Interest Period
applicable to such Eurodollar Rate Loan or within such earlier period as may be
required by law. The Borrower hereby agrees to promptly pay the Lender, upon
demand, any additional amounts necessary to compensate the Lender for any costs
incurred by the Lender in making any conversion in accordance with this Section
3.5, including any interest or fees payable by the Lender to lenders of funds
obtained by it in order to make or maintain its Eurodollar Rate Loans hereunder.
3.6 ADDITIONAL COSTS, ETC. If any present or future applicable law, which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with
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the administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to the Lender by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall:
(a) subject the Lender to any tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature with respect to this Loan Agreement, the
other Loan Documents, the Commitment or the Loan (other than taxes based upon or
measured by the revenue, income or profits of the Lender), or
(b) materially change the basis of taxation (except for changes in
taxes on revenue, income or profits) of payments to the Lender of the principal
of or the interest on the Loan or any other amounts payable to the Lender under
this Loan Agreement or the other Loan Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Loan Agreement) any special deposit,
reserve, assessment, liquidity, capital adequacy or other similar requirements
(whether or not having the force of law) against assets held by, or deposits in
or for the account of, or loans by, or commitments of an office of the Lender,
or
(d) impose on the Lender any other conditions or requirements with
respect to this Loan Agreement, the other Loan Documents, the Loan, the
Commitment, or any class of loans or commitments of which the Loan or the
Commitment forms a part, and the result of any of the foregoing is
(i) to increase the cost to the Lender of making, funding,
issuing, renewing, extending or maintaining the Term Loan or the
Commitment, or
(ii) to reduce the amount of principal, interest or other amount
payable to the Lender hereunder on account of the Commitment or the
Term Loan, or
(iii) to require the Lender to make any payment or to forego any
interest or other sum payable hereunder, the amount of which payment
or foregone interest or other sum is calculated by reference to the
gross amount of any sum receivable or deemed received by the Lender
from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by the Lender
at any time and from time to time and as often as the occasion therefor may
arise, pay to the Lender such additional amounts as will be sufficient to
compensate the Lender for such additional cost, reduction, payment or foregone
interest or other sum.
3.7 CAPITAL ADEQUACY. If after the date hereof the Lender determines that
(a) the adoption of or change in any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) regarding
capital requirements for banks or bank holding companies or any change in the
interpretation or application thereof by a court or governmental authority with
appropriate jurisdiction, or (b) compliance by the Lender or any corporation
controlling the Lender with any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) of any such
entity regarding capital adequacy, has the effect of reducing the return on the
Commitment or the Term Loan to a level below that which the Lender could have
achieved but for such adoption, change or compliance (taking into consideration
the Lender's then existing policies with respect to capital adequacy and
assuming full utilization of the Lender's capital) by any amount deemed by the
Lender to be material, then the Lender may notify the Borrower of such fact. To
the extent that the amount of such reduction in the return on capital is not
reflected in the Base Rate, the Borrower agrees to pay the Lender for the amount
of such reduction in the return on capital as
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and when such reduction is determined upon presentation by the Lender of a
certificate in accordance with Section 3.8 hereof. The Lender shall allocate
such cost increases among its customers in good faith and on an equitable basis.
3.8 CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to Section 3.6 or 3.7 and a brief explanation of such amounts
which are due, submitted by the Lender to the Borrower, shall be conclusive
evidence, absent manifest error, that such amounts are due and owing.
3.9 INDEMNITY. The Borrower agrees to indemnify the Lender and to hold
the Lender harmless from and against any loss, cost or expense (including loss
of anticipated profits) that the Lender may sustain or incur as a consequence of
(a) default by the Borrower in payment of the principal amount of or any
interest on any Eurodollar Rate Loans or Fixed Rate Loans as and when due and
payable, including any such loss or expense arising from interest or fees
payable by the Lender to lenders of funds obtained by it in order to maintain
its Eurodollar Rate Loans or Fixed Rate Loans, (b) default by the Borrower in
converting or continuing all or a portion of the Term Loan after the Borrower
has given (or is deemed to have given) a Conversion Request relating thereto in
accordance with Section 2.5 or (c) the making of any payment on a Eurodollar
Rate Loan or the making of any conversion of any such Loan to a Base Rate Loan
or a Fixed Rate Loan on a day that is not the last day of the applicable
Interest Period with respect thereto, including interest or fees payable by the
Lender to lenders of funds obtained by it in order to maintain the Term Loan.
3.10 INTEREST AFTER DEFAULT.
3.10.1 OVERDUE AMOUNTS. Overdue principal and (to the extent
permitted by applicable law) interest on the Term Loan and all other overdue
amounts payable hereunder or under any of the other Loan Documents shall bear
interest compounded monthly and payable on demand at a rate per annum equal to
two percent (2%) above the rate applicable to Base Rate Loans until such amount
shall be paid in full (after as well as before judgment).
3.10.2 AMOUNTS NOT OVERDUE. During the continuance of an Event of
Default the principal of the Loan not overdue shall, from and after the fifth
day after such Event of Default and until such Event of Default has been cured
or remedied or such Event of Default has been waived by the Lender pursuant to
Section 22, bear interest at a rate per annum equal to the greater of (i) two
percent (2%) above the rate of interest otherwise applicable to the Term Loan
pursuant to Section 2.5 and (ii) the rate of interest applicable to overdue
principal pursuant to Section 3.10.1.
4. SECURITY AND GUARANTIES.
4.1 SECURITY OF BORROWER. The Obligations shall be secured by a perfected
first priority security interest (subject only to Permitted Liens entitled to
priority under applicable law) in the Vessel.
4.2 GUARANTIES OF THE GUARANTORS. The Obligations shall also be
guaranteed by the Guarantors pursuant to the terms of the Guaranty.
5. REPRESENTATIONS AND WARRANTIES. The Borrower and the Guarantors represent
and warrant to the Lender as follows:
5.1 CORPORATE AUTHORITY.
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5.1.1 INCORPORATION; GOOD STANDING. Each of the Borrower and the
Guarantors (a) is a corporation duly organized, validly existing and in good
standing under the laws of its state of incorporation, (b) has all requisite
corporate power to own its property and conduct its business as now conducted
and as presently contemplated, and (c) is in good standing as a foreign
corporation and is duly authorized to do business in each jurisdiction where
such qualification is necessary except where a failure to be so qualified would
not have a materially adverse effect on the business, assets or financial
condition of the Borrower or the Guarantors, taken as a whole.
5.1.2 AUTHORIZATION. The execution, delivery and performance of this
Loan Agreement and the other Loan Documents to which the Borrower or any of the
Guarantors is or is to become a party and the transactions contemplated hereby
and thereby (a) are within the corporate authority of such Persons, (b) have
been duly authorized by all necessary corporate proceedings, (c) do not conflict
with or result in any breach or contravention of any provision of law, statute,
rule or regulation to which such Persons are subject or any judgment, order,
writ, injunction, license or permit applicable to such Persons and (d) do not
conflict with any provision of the corporate charter or bylaws of, or any
agreement or other instrument binding upon, such Persons.
5.1.3 ENFORCEABILITY. The execution and delivery of this Loan
Agreement and the other Loan Documents to which the Borrower or any of the
Guarantors is or is to become a party will result in valid and legally binding
obligations of each such Person enforceable against it in accordance with the
respective terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
5.2 GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrower and the Guarantors of this Loan Agreement and the other Loan
Documents to which the Borrower or any of the Guarantors is or is to become a
party and the transactions contemplated hereby and thereby do not require the
approval or consent of, or filing with, any Governmental Authority other than
filings with the National Vessel Documentation Center with respect to the Vessel
Mortgage as contemplated by the Loan Documents.
5.3 TITLE TO PROPERTIES. Except as indicated on Schedule 5.3 hereto,
Xxxxx and its consolidated subsidiaries own all of the assets reflected in the
consolidated balance sheet of Xxxxx referred to in Section 5.4.1 or acquired
since the date thereof (except property and assets sold or otherwise disposed of
in the ordinary course of business since that date), subject to no rights of
others, including any mortgages, leases, conditional sales agreements, title
retention agreements, liens or other encumbrances except Permitted Liens.
5.4 FINANCIAL STATEMENTS AND PROJECTIONS.
5.4.1 FINANCIAL STATEMENTS. There has been furnished to the Lender a
consolidated balance sheet of Xxxxx and its consolidated subsidiaries as at the
Balance Sheet Date, and a consolidated statement of income for the fiscal year
then ended, certified by Xxxxx'x independent certified public accountants. Such
balance sheet and statement of income have been prepared in accordance with GAAP
and fairly present the consolidated financial condition of Xxxxx and its
consolidated subsidiaries as at the Balance Sheet Date and the consolidated
results of operations for the fiscal year then ended. There are no contingent
liabilities of Xxxxx or any of its subsidiaries as of such date involving
material amounts, known to the officers of the Borrower or any of the Guarantors
not disclosed in said balance sheet and the related notes thereto.
5.4.2 BUDGET. The annual operating budget of Xxxxx and its
consolidated subsidiaries for the 1997 fiscal year, a copy of which has been
delivered to the Lender, was prepared on the basis of the assumptions stated
therein. To the knowledge of the Borrower and the Guarantors, no facts exist
that (individually or in the aggregate) would reasonably be expected to result
in any material adverse change in such budget.
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5.5 NO MATERIAL CHANGES, ETC.
(a) Since the Balance Sheet Date there has occurred no materially
adverse change in the financial condition or business of (i) the Borrower or
(ii) Xxxxx and its Restricted Subsidiaries, determined on a consolidated basis
for such Persons, as shown on or reflected in the consolidated balance sheet of
Xxxxx and its Restricted Subsidiaries as at the Balance Sheet Date, or on the
consolidated statement of income for the fiscal year then ended. Since the
Balance Sheet Date, neither the Borrower nor any of the Guarantors has made any
Distributions or Restricted Prepayments.
(b) The Borrower and the Guarantors (before and after giving effect
to the transactions contemplated by this Loan Agreement and the other Loan
Documents) (i) are solvent, (ii) have assets having a fair value in excess of
their liabilities, (iii) have assets having a fair value in excess of the amount
required to pay their liabilities on existing debts as such debts become
absolute and matured, and (iv) have, and expect to continue to have, access to
adequate capital for the conduct of their respective businesses and the ability
to pay their debts from time to time incurred in connection with the operation
of their respective businesses as such debts mature.
5.6 FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower and the Guarantors
possess all franchises, patents, copyrights, trademarks, trade names, licenses
and permits, and rights in respect of the foregoing, adequate for the conduct of
their respective businesses substantially as now conducted without known
conflict with any rights of others.
5.7 LITIGATION. There are no actions, suits, proceedings, orders,
injunctions, decisions or investigations of any kind pending, threatened or
issued against the Borrower or the Guarantors before any court, tribunal,
administrative agency or board which (a) if adversely determined, would
reasonably be expected to materially adversely affect or materially impair (i)
the properties, assets, financial condition or business of the Borrower or of
the Guarantors and their subsidiaries on a consolidated basis, (ii) the ability
of the Borrower or the Guarantors to perform their respective obligations under
the Loan Documents, (iii) the right of the Borrower or of the Guarantors and
their subsidiaries on a consolidated basis, to carry on their respective
businesses substantially as now conducted by them, or (iv) the ability of the
Lender to exercise its rights hereunder or under the other Loan Documents; or
(b) question the validity of this Loan Agreement or any of the other Loan
Documents or any action taken or to be taken pursuant hereto or thereto.
5.8 NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower nor any of
the Guarantors is subject to any charter, corporate or other legal restriction,
or any judgment, decree, order, rule or regulation that has or is expected in
the future to have a materially adverse effect on the respective businesses,
assets or financial condition of the Borrower or of the Guarantors and their
subsidiaries on a consolidated basis. Neither the Borrower nor any of the
Guarantors is a party to any contract or agreement that has or is expected, in
the judgment of the officers of the Borrower and the Guarantors, to have any
materially adverse effect on the business of the Borrower or of the Guarantors
and their subsidiaries on a consolidated basis.
5.9 COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the Borrower
nor any of the Guarantors is in violation of (i) any provision of their
respective charter documents or bylaws, or (ii) any agreement or instrument to
which they may be subject or by which they or any of their properties may be
bound or (iii) any law (including without limitation, any Environmental Law),
decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that would reasonably be expected to materially and
adversely affect the respective financial conditions, properties or businesses
of the Borrower or the Guarantors and their Restricted Subsidiaries on a
consolidated basis.
5.10 TAX STATUS. The Borrower and each of the Guarantors (a) have filed
all federal and, except where the failure to file could not have a materially
adverse effect on the business, assets or financial condition of Xxxxx and its
Restricted Subsidiaries on a consolidated basis, state income and all other tax
returns, reports and declarations required by any jurisdiction to which any of
them is subject, (b) have paid all taxes
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and other governmental assessments and charges shown or determined to be due on
such returns, reports and declarations, except those being contested in good
faith and by appropriate proceedings and (c) have set aside on their books, to
the extent required by GAAP, reserves for taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due from the Borrower or the
Guarantors by the taxing authority of any jurisdiction.
5.11 NO EVENT OF DEFAULT. No Default or Event of Default has occurred and
is continuing.
5.12 HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the Borrower nor
any of the Guarantors is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
5.13 ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security, agreement, ship
mortgage or other document filed or recorded with any filing records, registry,
or other public office, that purports to cover, affect or give notice of any
lien on, or security interest in any of the Collateral.
5.14 PERFECTION OF SECURITY INTEREST. All filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary, under applicable law, to establish and
perfect the Agent's, the Lender's or, as the case may be, BKB's security
interest in the Collateral. The Collateral and the Agent's, the Lender's or, as
the case may be, BKB's rights with respect to the Collateral are not subject to
any setoff, claims, withholdings or other defenses. The Borrower is the owner
of the Collateral free from any lien, security interest, encumbrance and any
other claim or demand, except for Permitted Liens. All of the Obligations of
the Borrower will, from and after the execution and delivery of the Vessel
Mortgage, be entitled to the benefits of and be secured by the Vessel Mortgage.
5.15 CERTAIN TRANSACTIONS. Except for transactions permitted under the
Parent Credit Agreement, none of the officers, directors, or employees of the
Borrower or any of the Guarantors is currently a party to any transaction with
Borrower or any of the Guarantors (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Borrower or any
of the Guarantors, any corporation, partnership, trust or other entity in which
any officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
5.16 EMPLOYEE BENEFIT PLANS. The representations and warranties of the
Borrower and the Guarantors contained in Section 7.16 of the Parent Credit
Agreement (other than the second sentence of Section 7.16.1) are hereby
incorporated herein by reference and shall be deemed made by the Borrower and
the Guarantors on and as of the Closing Date.
5.17 PURPOSE; REGULATIONS U AND X. No portion of the Loan is to be used
for the purpose of purchasing or carrying any "margin security" or "margin
stock" as such terms are used in Regulations U and X of the Board of Governors
of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
5.18 SUBSIDIARIES, ETC. The Borrower and the Guarantors have only those
Subsidiaries listed on Schedule 5.18 hereto and except as set forth on such
Schedule 5.18, neither the Borrower nor any Guarantor is engaged in any joint
venture or partnership with any other person.
5.19 [INTENTIONALLY OMITTED].
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5.20 DISCLOSURE. Neither this Loan Agreement nor any of the other Loan
Documents contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements herein or therein not
misleading. There is no fact known to either the Borrower or any of the
Guarantors which materially adversely affects, or which would reasonably be
expected to materially adversely affect in the future, exclusive of effects
resulting from changes in general economic or industry conditions, the business,
assets, financial condition or prospects of the Borrower or of the Guarantors
and their subsidiaries on a consolidated basis.
5.21 FISCAL YEAR. The fiscal year of the Borrower, Xxxxx and the other
Guarantors is the twelve months ending December 31 of each year.
5.22 INSURANCE. Schedule 5.22 attached hereto lists the P&I and hull
policies and types and amounts of P&I and hull coverage (including deductibles)
owned or held by the Borrower on the date hereof. Such policies of insurance
are maintained with financially sound and reputable insurance companies, funds,
underwriters or mutual indemnification associations. All such policies are in
full force and effect; are sufficient for material compliance by the Borrower
and the Guarantors with all requirements of law and all agreements to which the
Borrower or the Guarantors are a party; are by their terms valid and enforceable
policies that will remain in full force and effect through the respective dates
set forth in such schedule; and coverage thereunder will not be reduced by, or
terminate or lapse by reason of, the transactions contemplated by this Loan
Agreement.
5.23 CONCERNING THE VESSEL. The Vessel complies, in all material respects,
with all applicable laws and all applicable regulations thereunder. The Vessel
is (i) covered by hull and machinery, protection and indemnity and excess
liability insurance in accordance with the requirements of the Vessel Mortgage,
and (ii) operated and maintained as a vessel in accordance in all material
respects with all applicable laws and regulations. The Vessel is maintained and
operated in compliance, in all material respects, with all applicable
Environmental Laws.
6. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS. The Borrower and
the Guarantors covenant and agree that, so long as the Loan or the Note is
Outstanding:
6.1 PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Loan in accordance with the terms
of this Loan Agreement and the Note.
6.2 MAINTENANCE OF OFFICE. The Borrower and each of the Guarantors will
maintain its chief executive office at those locations listed on Schedule 6.2,
or at such other place in the United States of America as the Borrower or the
Guarantors shall designate upon written notice to the Lender, where notices,
presentations and demands to or upon the Borrower and the Guarantors in respect
of the Loan Documents may be given or made.
6.3 RECORDS AND ACCOUNTS. The Borrower and each of the Guarantors will
(a) keep true and accurate records and books of account in which full, true and
correct entries will be made in accordance with GAAP and (b) maintain adequate
accounts and reserves for all taxes (including income taxes), depreciation,
depletion, obsolescence and amortization of its properties contingencies, and
other reserves.
6.4 FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrower will
cause to be delivered to the Lender:
(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of Xxxxx, the consolidated balance
sheet of Xxxxx and its subsidiaries as at the end of such year, and the related
consolidated statements of income and of cash flow for such year, each setting
forth in comparative form the figures for the previous fiscal year, all such
statements to be in reasonable detail, prepared in accordance with GAAP, and
certified without qualification by Price Waterhouse LLP or by other independent
certified public
- 24 -
accountants satisfactory to the Lender, together with a written statement from
such accountants to the effect that they have read a copy of this Loan
Agreement, and that, in making the examination necessary to said certification,
they have obtained no knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing Default or Event
of Default they shall disclose in such statement any such Default or Event of
Default; PROVIDED that such accountants shall not be liable to the Lender for
failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of Xxxxx, a
copy of the unaudited consolidated balance sheet of Xxxxx and its subsidiaries
as at the end of such quarter, and the related consolidated statements of income
and cash flow for the portion of Xxxxx'x fiscal year then elapsed, all in
reasonable detail and prepared in accordance with GAAP, together with a
certification by the principal financial or accounting officer of Xxxxx that the
information contained in such financial statements fairly presents the financial
position of Xxxxx and its consolidated subsidiaries on the date thereof (subject
to year-end adjustments);
(c) as soon as practicable, but in any event not later than one
hundred twenty (120) days after the end of each fiscal year, the annual budget
for Xxxxx and its consolidated subsidiaries for the next succeeding fiscal year,
such annual budget to be set forth in reasonable detail;
(d) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by the
principal financial or accounting officer of Xxxxx (the "Compliance
Certificate"), substantially in the form of Exhibit C hereto and setting forth
in reasonable detail computations evidencing compliance with the covenants
contained in Section 8 and (if applicable) reconciliations to reflect changes in
GAAP since the Balance Sheet Date;
(e) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of the Borrower or any of the Guarantors;
and
(f) from time to time such other financial data and information
(including accountants' management letters) as the Lender may reasonably
request.
6.5 NOTICES.
6.5.1. DEFAULTS. The Borrower will promptly notify the Lender in
writing of the occurrence of any Default or Event of Default. If any Person
shall give any notice or take any other action in respect of a claimed default
(whether or not constituting an Event of Default) under this Loan Agreement, the
Note, or any other note, evidence of indebtedness, indenture or other obligation
to which or with respect to which the Borrower or the Guarantors are a party or
obligor, whether as principal or surety, the Borrower or such Guarantor shall
forthwith give written notice thereof to the Lender, describing the notice or
action and the nature of the claimed default.
6.5.2. ENVIRONMENTAL EVENTS. The Borrower and the Guarantors will
promptly give notice to the Lender (a) of any violation of any Environmental Law
that the Borrower or any Guarantor reports in writing or that is reportable by
such Person in writing (or for which any written report supplemental to any oral
report is made) to any federal, state or local environmental agency and (b) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or other
action, including a notice from any agency of potential environmental liability,
or any federal, state or local environmental agency or board, that, in each
instance, relates to the Vessel or would reasonably be expected to materially
adversely affect the respective assets, liabilities, financial conditions or
operations of the Borrower and the Guarantors and their subsidiaries on a
consolidated basis, or the Agent's, BKB's, or the Lender's security interests
pursuant to the Vessel Mortgage.
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6.5.3. NOTIFICATION OF CLAIMS AGAINST COLLATERAL. The Borrower and
each Guarantor will, immediately upon becoming aware thereof, notify the Lender
in writing of any setoff, claims, withholdings or other defenses to which any of
the Collateral, or the Agent's, BKB's, or the Lender's rights with respect to
the Collateral, are subject.
6.5.4. NOTICE OF LITIGATION AND JUDGMENTS. The Borrower and the
Guarantors will give notice to the Lender in writing within fifteen (15) days
after becoming aware of any litigation or proceedings threatened in writing or
any pending litigation and proceedings affecting the Borrower or the Guarantors
or to which the Borrower or the Guarantors is or becomes a party involving an
uninsured claim against the Borrower or the Guarantors that would reasonably be
expected to have a materially adverse effect on the respective businesses,
assets or financial conditions of the Borrower, the Guarantors and their
subsidiaries on a consolidated basis, stating the nature and status of such
litigation or proceedings. The Borrower and the Guarantors will give notice to
the Lender, in writing, in form and detail satisfactory to the Lender, within
ten (10) days after any judgment not covered by insurance, final or otherwise,
against the Borrower or the Guarantors in an amount in excess of $1,500,000.
6.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. The Borrower and each
of the Guarantors will do or cause to be done all things necessary to preserve
and keep in full force and effect their respective corporate existence, rights
and franchises. Each (a) will cause all of its properties used or useful in the
conduct of its business to be maintained and kept in good condition, repair and
working order, subject to normal wear and tear, and supplied with all necessary
equipment, (b) will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Borrower or the Guarantors, as the case may be, may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times, and (c) will continue to engage primarily in the
businesses now conducted by them and in related businesses; PROVIDED that
nothing in this Section 6.6 shall prevent the Borrower or the Guarantors from
discontinuing the operation and maintenance of any of their respective
properties if such discontinuance is, in the judgment of the Borrower or the
Guarantors, as the case may be, desirable in the conduct of its or their
business and does not in the aggregate materially adversely affect the business
of Xxxxx and its Restricted Subsidiaries or the ability of the Borrower or of
the Guarantors to perform their obligations hereunder and under the other Loan
Documents.
6.7 INSURANCE. The Borrower and each of the Guarantors will maintain with
financially sound and reputable insurers insurance with respect to their
respective properties and businesses against such casualties and contingencies
as shall be in accordance with general practices of businesses engaged in
similar activities in similar geographic areas.
6.8 TAXES. The Borrower and each of the Guarantors will duly pay and
discharge, or cause to be paid and discharged, before the same shall become
overdue, all federal taxes, charges and assessments and, except where the
failure to pay could not reasonably be expected to have a material adverse
effect on the business, assets or financial condition of Xxxxx and its
Restricted Subsidiaries, taken as a whole, all other taxes, assessments and
other governmental charges, in each case imposed upon each of them and their
respective real properties, sales and activities, or any part thereof, or upon
the income or profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid might by law become a lien or charge upon any of their
respective property; PROVIDED that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings and if the Borrower or the
Guarantors shall have set aside on its books adequate reserves with respect
thereto; and PROVIDED FURTHER that the Borrower and the Guarantors will pay all
such taxes, assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any lien that may have attached as
security therefor.
6.9 INSPECTION OF PROPERTIES AND BOOKS, ETC.
6.9.1. GENERAL. The Borrower and each of the Guarantors shall permit
the Lender or any of its designated representatives, to visit and inspect any of
the properties of the Borrower or the Guarantors, including, without limitation,
the Vessel, to examine the books of account
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of the Borrower or the Guarantors (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the Borrower or
the Guarantors with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Lender may
reasonably request.
6.9.2. COMMUNICATION WITH ACCOUNTANTS. The Borrower and the
Guarantors authorize the Lender to, in the presence of representatives of the
Borrower or the Guarantors, communicate directly with the Guarantors' and the
Borrower's independent certified public accountants and authorize such
accountants to disclose to the Lender any and all financial statements and other
supporting financial documents and schedules including copies of any management
letter with respect to the business, financial condition and other affairs of
the Borrower or the Guarantors. At the request of the Lender, the Borrower and
the Guarantors shall deliver a letter addressed to such accountants instructing
them to comply with the provisions of this Section 6.9.2.
6.10 COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The Borrower
and each of the Guarantors will comply with (a) the applicable laws and
regulations wherever its business is conducted, including all Environmental
Laws, except where the failure to comply would not reasonably be expected to
have a material adverse effect on the Vessel or on the business, assets or
financial condition of Xxxxx and its Restricted Subsidiaries taken as a whole,
(b) the provisions of their respective charter documents and by-laws, (c) all
agreements and instruments by which they or any of their respective properties
may be bound, except where the failure to comply would not reasonably be
expected to have a material adverse effect on the Vessel or the business, assets
or financial condition of Xxxxx and its Restricted Subsidiaries taken as a whole
and (d) all applicable decrees, orders, and judgments, except where the failure
to comply would not reasonably be expected to have a material adverse effect on
the Vessel or the business, assets or financial condition of Xxxxx and its
Restricted Subsidiaries taken as a whole. If at any time while any portion of
the Loan is Outstanding, any authorization, consent, approval, permit or license
from any officer, agency or instrumentality of any government shall become
necessary or required in order that the Borrower or the Guarantors may fulfill
any of their obligations hereunder, the Borrower and the Guarantors will
immediately take or cause to be taken all reasonable steps within the power of
the Borrower and the Guarantors to obtain such authorization, consent, approval,
permit or license and furnish the Lender with evidence thereof.
6.11 [INTENTIONALLY OMITTED].
6.12 APPROVALS. The Borrower will give all such notices to, and take all
such other actions with respect to, each Governmental Authority as may be
required in order to comply with all applicable Requirements in the use and
operation of the Vessel.
6.13 CONCERNING THE VESSEL. The Borrower shall at all times operate the
Vessel in compliance in all material respects with all Requirements and in
compliance in all material respects with all rules, regulations and requirements
of the American Bureau of Shipping or any other classification society selected
by the Borrower and reasonably acceptable to the Lender. Upon the Lender's
request, the Borrower shall furnish to the Lender a copy of the certificate of
such classification society covering the Vessel no later than thirty (30) days
after the end of each fiscal year of the Borrower.
6.14 FURTHER ASSURANCES. The Borrower and each of the Guarantors will
cooperate with the Lender and execute such further instruments and documents as
the Lender shall reasonably request to carry out to its satisfaction the
transactions contemplated by this Loan Agreement and the other Loan Documents.
7. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS. The
Borrower and the Guarantors covenant and agree that, so long as any portion of
the Term Loan is Outstanding:
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7.1 RESTRICTIONS ON INDEBTEDNESS. Neither the Borrower nor the Guarantors
will create, incur, assume, guarantee or be or remain liable, contingently or
otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Lender arising under any of the Loan
Documents;
(b) Indebtedness of the Borrower or the Guarantors otherwise
permitted under the Parent Credit Agreement or the Senior Indenture; and
(c) Indebtedness existing on the date of this Loan Agreement and
listed and described on Schedule 7.1 hereto and renewals, extensions or
refinancings thereof, provided that such renewals, extensions or refinancings
shall not increase the aggregate amount of such Indebtedness, materially
increase the amount of collateral securing such Indebtedness or materially
change the terms thereof.
7.2 RESTRICTIONS ON LIENS. Neither the Borrower nor the Guarantors will
(a) create or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, charge, restriction or other security interest of
any kind upon any of its property or assets of any character whether now owned
or hereafter acquired, or upon the income or profits therefrom; (b) transfer any
of such property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (c) except as set
forth in Section 7.1, acquire, or agree or have an option to acquire, any
property or assets upon conditional sale or other title retention or purchase
money security agreement, device or arrangement; (d) suffer to exist for a
period of more than sixty (60) days after the same shall have been incurred any
Indebtedness or claim or demand against it that if unpaid might by law or upon
bankruptcy or insolvency, or otherwise, be given any priority whatsoever over
its general creditors; or (e) except as permitted under the Parent Credit
Agreement, sell, assign, pledge or otherwise transfer any accounts, contract
rights, general intangibles, chattel paper or instruments, with or without
recourse; PROVIDED that the Borrower and the Guarantors may create or incur or
suffer to be created or incurred or to exist:
(a) currently outstanding liens listed on Schedule 7.2 hereto and
renewals or extensions thereof (including any liens arising under a refinancing
of the type described in Section 7.1(c) hereof);
(b) liens on property of the Borrower and the Guarantors (other than
the Vessel) otherwise permitted under the Parent Credit Agreement or the Senior
Indenture; and
(c) liens in favor of the Agent, BKB and the Lender under the Loan
Documents.
7.3 RESTRICTIONS ON INVESTMENTS. Neither the Borrower nor the Guarantors
will make or permit to exist or to remain outstanding any Investment except
Investments in:
(a) Investments existing on the date hereof and listed on
Schedule 7.3 hereto;
(b) Investments consisting of the Guaranty;
(c) Investments of the Guarantors and the Borrower otherwise
permitted under the Parent Credit Agreement or the Senior Indenture; and
(d) Investments of the Borrower and the Guarantors constituting the
repurchase of the promissory notes issued by Xxxxx pursuant to the Senior
Indenture, provided that, the aggregate amount of Investments permitted pursuant
to this Section 7.3(d) in any one fiscal year
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plus the aggregate amount of Restricted Prepayments permitted pursuant to
Section 7.4.2 in any one fiscal year shall not exceed the greater of (i)
$3,000,000 and (ii) the amount of such Investments as is permitted under the
Parent Credit Agreement.
7.4 RESTRICTED PREPAYMENTS. Neither the Borrower nor any of the
Guarantors shall make any Restricted Prepayment constituting the repurchase of
the promissory notes issued by Xxxxx pursuant to the Senior Indenture if, after
making such Restricted Prepayment and after giving effect thereto, the aggregate
amount of Restricted Prepayments permitted pursuant to this Section 7.4.2 made
during any one fiscal year plus the aggregate amount of Investments made during
such fiscal year and permitted pursuant to Section 7.3(d) shall exceed the
greater of (i) $3,000,000 and (ii) the amount of Restricted Prepayments
permitted pursuant to the Parent Credit Agreement; provided, however, that the
foregoing shall not limit the ability of the Borrower and the Guarantors to
effect repurchases of such notes under Sections 5.10, 5.15, 5.18 or Article 12
of the Senior Indenture.
7.5 MERGER; CONSOLIDATION; SUBSIDIARIES.
7.5.1. MERGERS AND ACQUISITIONS. The Borrower shall not (i)
become a party to any merger or consolidation, except as otherwise permitted
under the Parent Credit Agreement or the Senior Indenture, provided that the
perfected first priority security interest of the Agent in the Vessel continues
after such merger or consolidation or (ii) agree to or effect any asset
acquisition or stock acquisition (other than the acquisition of assets in the
ordinary course of business consistent with past practices or except as
otherwise permitted under the Parent Credit Agreement or the Senior Indenture).
None of the Guarantors will become a party to any merger or consolidation, or
agree to or effect any asset acquisition or stock acquisition, except as
permitted under the Parent Credit Agreement or the Senior Indenture.
7.5.2. DISPOSITION OF ASSETS. The Borrower will not become a party
to or agree to or effect any disposition of assets other than the disposition of
assets other than the Vessel to the Guarantors or in the ordinary course of
business; provided that, with respect to any assets or Collateral other than the
Vessel, the Borrower may transfer assets in accordance with the Parent Credit
Agreement or the Senior Indenture. None of the Guarantors will become a party
to or agree to or effect any disposition of assets, except the disposition of
assets to the other Guarantors or the Borrower and except as permitted under the
Parent Credit Agreement or the Senior Indenture.
7.6 SALE AND LEASEBACK. Except as permitted under the Parent Credit
Agreement or the Senior Indenture, neither the Borrower nor the Guarantors will
enter into any arrangement, directly or indirectly, whereby the Borrower or any
Guarantor shall sell or transfer any property owned by it in order then or
thereafter to lease such property or lease other property that the Borrower or
any Guarantor intends to use for substantially the same purpose as the property
being sold or transferred.
7.7 COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower will not (a) use the
Vessel for the handling, processing, storage or disposal of Hazardous Substances
(other than in compliance with all applicable Environmental Laws), (b) cause or
permit to be located on the Vessel any receptacle for Hazardous Substances
(other than in compliance with all applicable Environmental Laws), (c) generate
any Hazardous Substances on the Vessel (other than in compliance with all
applicable Environmental Laws), (d) conduct any activity on the Vessel or use
the Vessel in any manner so as to cause a release (i.e. releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping) or threatened release of Hazardous Substances on
or from the Vessel which would reasonably be expected to have a material adverse
effect on the Vessel or the business, assets or financial condition of the
Borrower or Xxxxx and its Restricted Subsidiaries taken as a whole, or (e)
otherwise conduct any activity on the Vessel or use the Vessel in any manner
that would violate any Environmental Law or bring the Vessel in violation of any
Environmental Law, in each case if such violation would have a material adverse
effect on Vessel or the business, assets or financial condition of the Xxxxx and
its Restricted Subsidiaries taken as a whole.
7.8 [INTENTIONALLY OMITTED].
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7.9 CHANGE OF PRINCIPAL PLACE OF BUSINESS OR CORPORATE NAME. Neither the
Borrower nor any of the Guarantors will change its principal place of business
or corporate name unless it shall have (a) given the Lender at least thirty (30)
days' advance written notice of such change, and (b) filed in all necessary
jurisdictions such documents as may be necessary to continue without impairment
or interruption the perfection and priority of the liens on the Collateral in
favor of the Agent, BKB and the Lender pursuant to the Security Documents.
7.10 FISCAL YEAR. Neither the Guarantors nor the Borrower will change its
fiscal year from that set forth in Section 5.21 hereof.
7.11 TRANSACTIONS WITH AFFILIATES. Neither the Borrower nor the Guarantors
will (a) engage in any transaction with any Affiliate on terms more favorable to
such Affiliate than would have been obtainable on an arms'-length basis,
considered from the perspective of the Borrower or such Guarantor or (b) pay, or
enter into any agreement requiring the Borrower or such Guarantor to pay, salary
or bonus or other compensation payments to any officer or management employee of
the Borrower or such Guarantor or holder of any title or office, in an amount in
excess of reasonable compensation paid for similar service by similar businesses
similarly situated, provided that, the Borrower and the Guarantors shall be
permitted to engage in those transactions permitted under the Parent Credit
Agreement.
7.12 BUSINESS ACTIVITIES. Neither the Borrower nor any of the Guarantors
will use the Vessel in any business activity other than the general tug
business.
7.13 NEGATIVE PLEDGE. The Borrower will not enter into any agreement
limiting such Person's right to grant the Agent, BKB, or the Lender a lien or
security interest in the Collateral.
7.14 ADDITIONAL GUARANTORS. Neither the Borrower nor any of the Guarantors
may acquire or form any Subsidiary after the Effective Date unless (a) such
Subsidiary, if designated as a Restricted Subsidiary, shall have duly executed
and delivered to the Agent and the Banks, on the date of such acquisition or
formation, a guaranty substantially in the form of Exhibit B attached hereto,
and all other instruments and documents, including, without limitation,
corporate authority documents and legal opinions, as the Agent may reasonably
request in connection with the delivery of such guaranty, and (b) Xxxxx shall
have delivered to the Agent, on the date of such acquisition or formation, an
updated Schedule 5.18.
7.15 OTHER DEBT AGREEMENTS. Xxxxx will not (i) amend, supplement or
otherwise modify the terms of any of the Senior Indenture or the Senior Notes or
any document or instrument pertaining to the terms of any of the foregoing so as
to (a) shorten the maturity or the weighted average life to maturity of the
Senior Notes, (b) increase the interest rate payable on the Senior Notes, (c)
change the date or amount of any scheduled payment of principal of or interest
on the Senior Notes, or (d) make the covenants contained in the Senior Indenture
and the Senior Notes more onerous to Xxxxx or add covenants thereto, or (ii)
give any notice of optional redemption or defeasance or optional prepayment or
offer to repurchase, or make, either directly or indirectly, any payment of
principal of or interest on or in redemption, defeasance, retirement or
repurchase of any of the Senior Notes, except (i) for the regularly scheduled
payments of principal and interest required by the terms of such instruments and
the Senior Indenture, (ii) the optional redemption of the Senior Notes with the
net proceeds of any public offering of common stock of Xxxxx in accordance with
the terms of the Senior Indenture and (iii) as expressly permitted under Section
7.4 hereunder; provided, that nothing contained in this Section 7.15 shall
prevent Xxxxx from refinancing or replacing the Parent Credit Agreement or the
Senior Notes so long as the requirements of Section 2.3(c) are satisfied.
8. FINANCIAL COVENANTS OF THE BORROWER AND THE GUARANTORS.
8.1 DEBT SERVICE. Neither the Borrower nor the Guarantors will permit the
Debt Service Coverage Ratio, calculated as of the end of each fiscal quarter of
Xxxxx, to be less than 1.35:1.00 as of any fiscal quarter end.
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8.2 LEVERAGE. Neither the Borrower nor the Guarantors will permit the
Leverage Ratio, calculated as of the end of each fiscal quarter of Xxxxx, to be
greater than 6.00:1.00 as of any fiscal quarter end.
9. CONDITIONS TO EFFECTIVE DATE. The obligations of the Lender to amend and
restate the Existing Loan Agreement as herein provided shall be subject to the
satisfaction of the following conditions precedent on or prior to December 12,
1997:
9.1 LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to the Lender.
9.2 CERTIFIED COPIES OF CHARTER DOCUMENTS. The Lender shall have received
from each of the Guarantors and the Borrower a copy, certified by a duly
authorized officer of each such Person to be true and complete on the Effective
Date, of (a) its charter or other incorporation documents as in effect on such
date of certification, and (b) its by-laws as in effect on such date.
9.3 CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by the Guarantors and the Borrower of this
Loan Agreement and the other Loan Documents to which such Person is or is to
become a party shall have been duly and effectively taken, and evidence thereof
satisfactory to the Lender shall have been provided to the Lender.
9.4 INCUMBENCY CERTIFICATE. The Lender shall have received from the
Guarantors and the Borrower an incumbency certificate, dated as of the Effective
Date, signed by a duly authorized officer of each such Person and giving the
name and bearing a specimen signature of each individual who shall be
authorized: (a) to sign, in the name and on behalf of each of such Person the
Loan Documents to which each such Person is or is to become a party; (b) in the
case of the Borrower, to make Conversion Requests; and (c) to give notices and
to take other action on its behalf under the Loan Documents.
9.5 VALIDITY OF LIENS. The Vessel Mortgage shall be effective to create
in favor of the Agent, BKB or, as the case may be, the Lender a legal, valid and
enforceable first preferred (except for Permitted Liens) ship mortgage on the
Vessel. All filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Lender to protect and preserve such
security interests shall have been duly effected. The Lender shall have
received evidence thereof in form and substance satisfactory to the Lender.
9.6 PERFECTION CERTIFICATE AND UCC SEARCH RESULTS. The Lender shall have
received from the Borrower a completed and fully executed Perfection Certificate
and the results of UCC searches, indicating no liens other than Permitted Liens
and otherwise in form and substance satisfactory to the Lender.
9.7 CERTIFICATES OF INSURANCE. The Lender shall have received a
certificate of insurance from an independent insurance broker dated on or within
fifteen days of the Effective Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Vessel Mortgage.
9.8 SOLVENCY CERTIFICATE. The Lender shall have received an officer's
certificate of the Borrower and the Guarantors dated as of the Effective Date as
to the solvency of the Borrower and the Guarantors following the consummation of
the transactions contemplated herein and in form and substance satisfactory to
the Lender.
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9.9 OPINION OF COUNSEL. The Lender shall have received a legal opinion
addressed to the Lender, dated as of the Effective Date, in form and substance
satisfactory to the Lender, from Xxxx Xxxxx & Xxxxxxx LLP, counsel to the
Borrower and the Guarantors.
10. EVENTS OF DEFAULT; ACCELERATION; ETC.
10.1 EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of, or interest on,
the Term Loan or any other sums due hereunder or under the other Loan Documents,
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower or any Guarantor shall fail to comply with any of
its covenants contained in Section 6 (other than those specified in Section
10.1(c)), Section 7 or Section 8 hereof;
(c) the Borrower or any Guarantor shall fail to comply with any of
its covenants contained in Sections 6.3 through 6.5 hereof, the second sentence
of Section 6.6 hereof, or Sections 6.8 through 6.14 hereof and such failure
shall continue for ten (10) days;
(d) the Borrower or any Guarantor shall fail to perform any term,
covenant or agreement contained herein or in any of the other Loan Documents
(other than those specified elsewhere in this Section 10) for fifteen (15) days
after written notice of such failure has been given to the Borrower or such
Guarantor by the Lender;
(e) any representation or warranty of any Guarantor or the Borrower
in this Loan Agreement, any of the other Loan Documents, or in any other
document or instrument delivered pursuant to or in connection with this Loan
Agreement or any other Loan Document shall prove to have been false in any
material respect upon the date when made;
(f) any Guarantor or the Borrower shall fail to pay at maturity, or
within any applicable period of grace, any obligation for borrowed money or
credit received or in respect of any Capitalized Leases in excess, individually
or in the aggregate, of $3,000,000, or fail to observe or perform any material
term, covenant or agreement contained in any agreement by which it is bound,
evidencing or securing borrowed money or credit received or in respect of any
Capitalized Leases in excess, individually or in the aggregate, of $3,000,000
for such period of time as would permit (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof provided that if the Borrower or
any of the Guarantors fails to perform the covenant set forth in Section 5.18 of
the Senior Indenture, such failure shall not constitute an Event of Default
under this clause (f) if the Borrower or such Guarantor and the Holders (as
defined in the Senior Indenture)
- 32 -
are negotiating a waiver of such default under the Senior Indenture diligently
and in good faith and such waiver is obtained or such default is cured within
thirty (30) days;
(g) any Guarantor or the Borrower shall make an assignment for the
benefit of creditors, or admit in writing its inability to pay or generally fail
to pay its debts as they mature or become due, or shall petition or apply for
the appointment of a trustee or other custodian, liquidator or receiver of any
Guarantor or the Borrower or of any substantial part of the assets of any
Guarantor or the Borrower or shall commence any case or other proceeding
relating to any Guarantor or the Borrower under the bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or shall take any
action to authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against any Guarantor or the Borrower and any Guarantor or
the Borrower shall indicate its approval thereof, consent thereto or
acquiescence therein or such petition or application shall not have been
dismissed within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any Guarantor or the Borrower
bankrupt or insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of any
Guarantor or the Borrower in an involuntary case under federal bankruptcy laws
as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any final
judgment against the Guarantors or the Borrower that, with other outstanding
final judgments, undischarged, against the Guarantors and the Borrower exceeds
in the aggregate $3,000,000;
(j) if any one or more of the Loan Documents shall be cancelled,
terminated, revoked or rescinded or the Agent's, BKB's, or the Lender's security
interests, mortgages or liens in the Vessel shall cease to be perfected, or
shall cease to have the priority contemplated by the Vessel Mortgage, in each
case otherwise than in accordance with the terms thereof or with the express
prior written agreement, consent or approval of the Lender, or any action at
law, suit or in equity or other legal proceeding to cancel, revoke or rescind
any of the Loan Documents shall be commenced by or on behalf of any of the
Guarantors or the Borrower party thereto or any of their respective
stockholders, or any court or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable in accordance with the terms
thereof;
(k) with respect to any Guaranteed Pension Plan, an ERISA Reportable
Event shall have occurred and the Lender shall have determined in its reasonable
discretion that such event reasonably would be expected to result in liability
of the Borrower or any of the
- 33 -
Guarantors to the PBGC or such Guaranteed Pension Plan in an aggregate amount
exceeding $1,000,000 and such event in the circumstances occurring reasonably
could constitute grounds for the termination of such Guaranteed Pension Plan by
the PBGC or for the appointment by the appropriate United States District Court
of a trustee to administer such Guaranteed Pension Plan; or a trustee shall have
been appointed by the United States District Court to administer such Guaranteed
Pension Plan; or the PBGC shall have instituted proceedings to terminate such
Guaranteed Pension Plan;
(l) any of the Guarantors or the Borrower shall be enjoined,
restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any material part of its
business and such order shall continue in effect for more than thirty (30) days;
(m) there shall occur any material damage to, or loss, theft or
destruction of, the Vessel or any material assets of the Borrower, whether or
not insured, or any strike, lockout, labor dispute, embargo, condemnation, act
of God or public enemy, or other casualty, which in any such case causes, for
more than thirty (30) consecutive days, the cessation or substantial curtailment
of revenue producing activities at any facility of any of the Guarantors or the
Borrower if such event or circumstance is not covered by business interruption
insurance and would reasonably be expected to have a material adverse effect on
the business or financial condition of Xxxxx and its Restricted Subsidiaries on
a consolidated basis;
(n) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by any of
the Guarantors or the Borrower if such loss, suspension, revocation or failure
to renew would reasonably be expected to have a material adverse effect on the
business or financial condition of Xxxxx and its Restricted Subsidiaries on a
consolidated basis;
(o) any of the Guarantors or the Borrower shall be indicted for a
state or federal crime, or any civil or criminal action shall otherwise have
been brought or threatened against any of the Guarantors or the Borrower by any
Governmental Authority, a punishment for which in any such case could include
the forfeiture of any assets of such Guarantor or the Borrower having a fair
market value in excess of $1,500,000;
(p) Xxxxx shall at any time, legally or beneficially own, directly or
indirectly, less than one hundred percent (100%) of the common stock of the
Borrower, as adjusted pursuant to any stock split, stock dividend or
recapitalization or reclassification of the capital of such corporation;
(q) the Lender shall have received a report by the American Bureau of
Shipping or any other classification society, or by any marine engineer or
surveyor following an inspection at the request of the Lender, that the Vessel
is not in compliance with the requirements of applicable law for use as intended
and action shall not have been commenced
- 34 -
within fifteen (15) days after written notice thereof shall have been given by
the Lender to the Borrower and such corrective action shall not be diligently
prosecuted or completed in a manner and time schedule consistent with industry
standards; or
(r) any "Event of Default" under and as defined in the Parent Credit
Agreement shall have occurred and be continuing or any "Default" under and as
defined in the Parent Credit Agreement shall have occurred and be continuing;
provided that until such "Default" under the Parent Credit Agreement constitutes
an "Event of Default" thereunder, it shall constitute a Default, but not an
Event of Default hereunder;
then, and in any such event, so long as the same may be continuing, the Lender
may, by notice in writing to the Borrower declare all amounts owing with respect
to this Loan Agreement, the Note and the other Loan Documents to be, and they
shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower and the Guarantors; PROVIDED that in the
event of any Event of Default specified in Section 10.1(g) or Section 10.1(h)
hereof, all such amounts shall become immediately due and payable automatically
and without any requirement of notice from the Lender.
10.2 REMEDIES. In case any one or more of the Events of Default shall have
occurred and be continuing, and whether or not the Lender shall have accelerated
the maturity of the Loan pursuant to Section 10.1 hereof, the Lender, if owed
any amount with respect to the Loan, may, proceed to protect and enforce its
rights by suit in equity, action at law or other appropriate proceeding, whether
for the specific performance of any covenant or agreement contained in this Loan
Agreement and the other Loan Documents or any instrument pursuant to which the
Obligations are evidenced, including as permitted by applicable law the
obtaining of the ex parte appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of the Lender. No remedy herein
conferred upon the Lender or on any other holder of the Note is intended to be
exclusive of any other remedy and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or any other provision of law.
10.3 DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that, following the
occurrence or during the continuance of any Default or Event of Default, the
Lender receives any monies in connection with the enforcement of any of the
Security Documents, or otherwise with respect to the realization upon any of the
Collateral, such monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent, BKB and the Lender for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have been
incurred or sustained by the Agent, BKB and the Lender in connection with the
collection of such monies by the Agent, BKB and the Lender, for the exercise,
protection or enforcement by the Agent, BKB and the Lender of all or any of the
rights,
- 35 -
remedies, powers and privileges of the Agent, BKB and the Lender under this Loan
Agreement or any of the other Loan Documents or in respect of the Collateral,
the Obligations and to support the provision of adequate indemnity to the Agent,
BKB and the Lender against all taxes or liens which by law shall have, or may
have, priority over the rights of the Agent, BKB and the Lender to such monies;
(b) Second, to all other Obligations in such order or preference as
the Agent, BKB and the Lender may determine; PROVIDED, HOWEVER, that the Agent,
BKB and the Lender may in their discretion make proper allowance to take into
account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Agent, BKB and the Lender of all of the
Obligations, to the payment of any obligations required to be paid pursuant to
Section 9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of
Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the Borrower or
to such other Persons as are entitled thereto.
11. SETOFF. Regardless of the adequacy of any collateral, during the
continuance of any Event of Default, any deposits or other sums credited by or
due from the Lender to the Borrower or any of the Guarantors and any securities
or other property of the Borrower or any of the Guarantors in the possession of
BKB or the Lender may be applied to or set off by BKB or the Lender against the
payment of Obligations and any and all other liabilities, direct, or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising,
of the Borrower or any of the Guarantors to BKB or the Lender.
12. EXPENSES. The Borrower and the Guarantors agree to pay (a) the reasonable
costs of producing and reproducing this Loan Agreement, the other Loan Documents
and the other agreements and instruments mentioned herein, (b) any taxes
(including any interest and penalties in respect thereto) payable by the Lender
(other than taxes based upon the Lender's revenue or net income) on or with
respect to the transactions contemplated by this Loan Agreement (the Borrower
and the Guarantors hereby agreeing to indemnify the Lender with respect
thereto), (c) the reasonable fees, expenses and disbursements of the Lender's
Special Counsel and any local counsel to the Lender incurred in connection with
the preparation, administration or interpretation of the Loan Documents and the
other instruments mentioned herein, each closing hereunder, and any amendments,
modifications, approvals, consents or waivers hereto or hereunder, (d) the fees,
expenses and disbursements incurred by the Lender in connection with the
preparation, administration or interpretation of the Loan Documents and the
other instruments mentioned herein, (e) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and costs, and
reasonable consulting, accounting, appraisal, vessel appraisal, investment
banking and similar professional fees and charges) incurred by the Lender in
connection with (i) the enforcement of or preservation of rights under
- 36 -
any of the Loan Documents against the Borrower or the Guarantors or the
administration thereof after the occurrence of a Default or Event of Default and
(ii) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to the Lender's relationship with the Borrower or
the Guarantors and (f) all reasonable fees, expenses and disbursements of the
Lender incurred in connection with lien searches or mortgage recordings. The
covenants of this Section 12 shall survive payment or satisfaction of payment of
amounts owing with respect to the Note.
13. INDEMNIFICATION. The Borrower and the Guarantors agree to indemnify and
hold harmless the Lender from and against any and all claims, actions and suits
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and expenses of every nature and character arising out of this
Loan Agreement or any of the other Loan Documents or the transactions
contemplated hereby including, without limitation, (a) any actual or proposed
use by the Borrower of the proceeds of any of the Loan, (b) the Borrower or the
Guarantors entering into or performing this Loan Agreement or any of the other
Loan Documents or (c) with respect to the Borrower or the Guarantors and their
respective properties and assets, the violation of any Environmental Law, the
presence, disposal, escape, seepage, leakage, spillage, discharge, emission,
release or threatened release of any Hazardous Substances or any action, suit,
proceeding or investigation brought or threatened with respect to any Hazardous
Substances (including, but not limited to claims with respect to wrongful death,
personal injury or damage to property), in each case including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Lender shall be entitled to select
its own counsel and, in addition to the foregoing indemnity, the Borrower agrees
to pay promptly the reasonable fees and expenses of such counsel. If, and to
the extent that the obligations of the Borrower or the Guarantors under this
Section 13 are unenforceable for any reason, the Borrower and the Guarantors
hereby agree to make the maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable law. The covenants
contained in this Section 13 shall survive payment and satisfaction in full of
the Obligations.
14. SURVIVAL OF COVENANTS, ETC. All covenants, agreements, representations and
warranties made herein, in the Note, in any of the other Loan Documents or in
any documents or other papers delivered by or on behalf of the Borrower or the
Guarantors pursuant hereto shall be deemed to have been relied upon by the
Lender, notwithstanding any investigation heretofore or hereafter made by it,
and shall survive the amendment and restatement by the Lender of the Existing
Loan Agreement, as herein contemplated, and shall continue in full force and
effect so long as any amount due under this Loan Agreement or the Note or any of
the other Loan Documents remains Outstanding, and for such further time as may
be otherwise expressly specified in this Loan Agreement. All statements
contained in any certificate or other paper delivered to the Lender at any time
by or on behalf of any of the Guarantors or the Borrower pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower or such Guarantor hereunder.
- 37 -
15. ASSIGNMENT AND PARTICIPATION.
15.1 ASSIGNMENT BY THE LENDER. The Lender may assign to one or more banks
all or a portion of its interests, rights and obligations under this Loan
Agreement (including all or a portion of the Term Loan at the time owing to it,
and the Note held by it), provided that the Borrower shall have given its prior
written consent to such assignment, which consent will not be unreasonably
withheld. Upon the request of the Lender, the Borrower and the Guarantors shall
consent to the amendment of this Loan Agreement and the other Loan Documents in
order to enable the Lender to make such assignments.
15.2 PARTICIPATIONS. The Lender may sell participations to one or more
banks or other entities in all or a portion of the Lender's rights and
obligations under this Loan Agreement and the other Loan Documents; provided
that (a) the Borrower shall have given its prior written consent to such
participation (except for participations to affiliates of the Lender), (b) each
such participation shall be in an amount of not less than $1,000,000, (c) any
such sale or participation shall not affect the rights and duties of the Lender
hereunder to the Borrower, and (d) the only rights granted to the participant
pursuant to such participation arrangements with respect to waivers, amendments
or modifications of the Loan Documents shall be the rights to approve waivers,
amendments or modifications that would reduce the principal of or the interest
rate on the Term Loan, or extend any regularly scheduled payment date for
principal or interest or release all or substantially all of the Collateral.
15.3 DISCLOSURE. The Borrower agrees that in addition to disclosures made
in accordance with standard and customary banking practices the Lender may
disclose confidential information obtained by the Lender in connection with this
Loan Agreement to assignees and participants and potential assignees and
potential participants hereunder; provided that such assignees or participants
or potential assignees or potential participants shall agree in writing (a) to
treat in confidence such information, (b) not to disclose such information to a
third party and (c) not to make use of such information for purposes of
transactions unrelated to such contemplated assignment or participation.
15.4 MISCELLANEOUS ASSIGNMENT PROVISIONS. Anything contained in this
Section 17 to the contrary notwithstanding, the Lender may at any time pledge
all or any portion of its interest and rights under this Loan Agreement
(including all or any portion of the Note) to any of the twelve Federal Reserve
Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section
341. No such pledge or the enforcement thereof shall release the Lender from
its obligations hereunder or under any of the other Loan Documents.
15.5 ASSIGNMENT BY BORROWER; GUARANTORS. Neither the Borrower nor any of
the Guarantors shall assign or transfer any of their rights or obligations under
any of the Loan Documents; provided, however, that nothing contained herein
shall limit the ability of the Borrower and the Guarantors to effect
transactions in compliance with Section 7.5 hereof.
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16. NOTICES, ETC. Except as otherwise expressly provided in this Loan
Agreement, all notices and other communications made or required to be given
pursuant to this Loan Agreement or the Notes shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first class
mail, postage prepaid, sent by overnight courier, or sent by telecopy and
confirmed by delivery via courier or postal service, addressed as follows:
(a) if to the Borrower or the Guarantors, at: Xxx Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxx Xxxxxxxxxxx, Esq., or at such
other address for notice as the Borrower shall last have furnished in writing to
the Person giving the notice; and
(b) if to the Lender, at BancBoston Leasing Inc., 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, XXX, Attention: Director of Administration,
Telecopier 617.434.0474, with a copy to, BankBoston, N.A., 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, XXX, Attention: Transportation Division,
Telecopier: 617.434.1955, or such other address for notice as the Lender shall
last have furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made and to
have become effective (a) if delivered by hand, overnight courier or facsimile
to a responsible officer of the party to which it is directed, at the time of
the receipt thereof by such officer or the sending of such facsimile and (b) if
sent by registered or certified first-class mail, postage prepaid, on the third
Business Day following the mailing thereof.
17. GOVERNING LAW. THIS LOAN AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS,
EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS
OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AND
EACH OF THE GUARANTORS AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS LOAN
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENT
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE BORROWER AND THE GUARANTORS BY MAIL AT THE ADDRESS
SPECIFIED IN Section 16 HEREOF. THE BORROWER AND EACH OF THE GUARANTORS HEREBY
WAIVE ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
18. HEADINGS. The captions in this Loan Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
- 39 -
19. COUNTERPARTS. This Loan Agreement and any amendment hereof may be executed
in several counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, and all of which
together shall constitute one instrument. In proving this Loan Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
20. ENTIRE AGREEMENT, ETC. The Loan Documents and any other documents executed
in connection herewith or therewith express the entire understanding of the
parties with respect to the transactions contemplated hereby. Neither this Loan
Agreement nor any term hereof may be changed, waived, discharged or terminated,
except as provided in Section 22 hereof.
21. WAIVER OF JURY TRIAL. The Borrower and each of the Guarantors hereby waive
their right to a jury trial with respect to any action or claim arising out of
any dispute in connection with this Loan Agreement, the Notes or any of the
other Loan Documents, any rights or obligations hereunder or thereunder or the
performance of such rights and obligations. Except as prohibited by law, the
Borrower and each of the Guarantors hereby waive any right they may have to
claim or recover in any litigation referred to in the preceding sentence any
special, exemplary, punitive or consequential damages or any damages other than,
or in addition to, actual damages. The Borrower and each of the Guarantors (a)
certify that no representative, agent or attorney of the Lender has represented,
expressly or otherwise, that the Lender would not, in the event of litigation,
seek to enforce the foregoing waivers and (b) acknowledge that the Lender has
been induced to amend and restate the Existing Loan Agreement and to enter into
this Loan Agreement and the other Loan Documents to which it is a party by,
among other things, the waivers and certifications contained herein.
22. CONSENTS, AMENDMENTS, WAIVERS, ETC. Except as otherwise expressly provided
in this Loan Agreement, any consent or approval required or permitted by this
Loan Agreement to be given by the Lender may be given, and any term of this Loan
Agreement or of any other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Borrower or the Guarantors of
any terms of this Loan Agreement or such other instrument or the continuance of
any Default or Event of Default may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Borrower and the written consent of the Lender.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Lender in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to or demand upon the
Borrower shall entitle the Borrower to other or further notice or demand in
similar or other circumstances.
23. SEVERABILITY. The provisions of this Loan Agreement are severable and if
any one clause or provision hereof shall be held invalid or unenforceable in
whole or in part in any jurisdiction, then such invalidity or unenforceability
shall affect only such clause or provision, or part thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision
- 40 -
in any other jurisdiction, or any other clause or provision of this Loan
Agreement in any jurisdiction.
24. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
24.1 SHARING OF INFORMATION WITH SECTION 20 SUBSIDIARY. The Borrower and
each of the Guarantors acknowledges that from time to time financial advisory,
investment banking and other services may be offered or provided to the
Borrower, the Guarantors or one or more of their Subsidiaries, in connection
with this Loan Agreement or otherwise, by a Section 20 Subsidiary. Each of the
Borrower and each Guarantor, for itself and each of its Subsidiaries, hereby
authorizes (a) such Section 20 Subsidiary to share with BKB and the Lender any
information delivered to such Section 20 Subsidiary by the Borrower, a Guarantor
or any of their Subsidiaries, and (b) BKB and the Lender to share with such
Section 20 Subsidiary any information delivered to BKB or the Lender by the
Borrower, a Guarantor or any of their Subsidiaries pursuant to this Loan
Agreement, or in connection with the decision of the Lender to enter into this
Loan Agreement; it being understood, in each case, that any such Section 20
Subsidiary receiving such information shall be bound by the confidentiality
provisions of this Loan Agreement. Such authorization shall survive the payment
and satisfaction in full of all of Obligations.
24.2 CONFIDENTIALITY. Each of the Lender and BKB agrees, on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower, any Guarantor or any of
their Subsidiaries pursuant to this Loan Agreement that is identified by such
Person as being confidential at the time the same is delivered to the Lender or
BKB, provided that nothing herein shall limit the disclosure of any such
information (a) after such information shall have become public other than
through a violation of this Section 24, (b) to the extent required by statute,
rule, regulation or judicial process, (c) to counsel for the Lender or BKB, (d)
to bank examiners or any other regulatory authority having jurisdiction over the
Lender or BKB, or to auditors or accountants, (e) to the Agent, BKB or any
Section 20 Subsidiary, (f) in connection with any litigation to which any one or
more of the Lender, BKB or any Section 20 Subsidiary is a party, or in
connection with the enforcement of rights or remedies hereunder or under any
other Loan Document, (g) to a Subsidiary or affiliate of the Lender or BKB or
(h) to any assignee or participant (or prospective assignee or participant) so
long as such assignee or participant agrees to be bound by the provisions of
Section 15.3.
24.3 PRIOR NOTIFICATION. Unless specifically prohibited by applicable law
or court order, each of the Lender and BKB shall, prior to disclosure thereof,
notify the Borrower and the Guarantors of any request for disclosure of any such
non-public information by any governmental agency or representative thereof
(other than any such request in connection with
- 41 -
an examination of the financial condition of the Lender or BKB by such
governmental agency) or pursuant to legal process.
24.4 OTHER. In no event shall the Lender or BKB be obligated or required
to return any materials furnished to it or any Section 20 Subsidiary by the
Borrower, any Guarantor or any of their Subsidiaries. The obligations of the
Lender and BKB under this Section 24 shall supersede and replace the obligations
of the Lender and BKB under any confidentiality letter in respect of this
financing signed and delivered by the Lender and/or BKB to the Borrower or a
Guarantor prior to the date hereof and shall be binding upon any assignee of, or
purchaser of any participation in, any interest in the Term Loan.
- 42 -
IN WITNESS WHEREOF, the undersigned have duly executed this Amended and
Restated Term Loan Agreement as a sealed instrument as of the date first set
forth above.
XXXXX TOWING CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
XXXXX TRANSPORTATION COMPANY,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
XXXXXXXX SHIPYARD, INC.,
as Guarantor
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Secretary
XXXXX BARGE CORPORATION,
as Guarantor
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Secretary
XXXXX SHIPYARD CORPORATION,
as Guarantor
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Secretary
- 43 -
XXXXX TOWING OF TEXAS, INC.,
as Guarantor
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Secretary
PETROLEUM TRANSPORT CORPORATION,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
SEABOARD BARGE CORPORATION,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXX TOWING OF DELAWARE, INC.,
as Guarantor
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Secretary
XXXXX BULK CORPORATION,
as Guarantor
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Secretary
- 44 -
HAMPTON ROADS LAND CO., INC.,
as Guarantor
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Secretary
PORTSMOUTH NAVIGATION CORPORATION,
as Guarantor
By: /s/ Xxxx Xxxxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Secretary
XXXXX SERVICES CORPORATION,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXX INSURANCE COMPANY LIMITED,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
- 45 -
BANCBOSTON LEASING, INC.,
individually and as Agent
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
