1
Exhibit 10.11
AMENDED AND RESTATED
TERM LOAN AND REVOLVING CREDIT FACILITY AGREEMENT
--------------------------------------------------------------------------------
MARINE TRANSPORT LINES, INC.
Borrower
The Financial Institutions Listed on Schedule 1,
Lenders
and
DEN NORSKE BANK ASA,
Agent
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as of June 17, 1998
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INDEX
PAGE
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SECTION 1 DEFINITIONS...................................................... 1
1.1 Defined Terms........................................ 1
1.2 Construction......................................... 23
1.3 Accounting Terms..................................... 23
SECTION 2 REPRESENTATIONS AND WARRANTIES................................... 23
2.1(a) Due Organization and Power........................... 23
2.1(b) Authorization and Consents........................... 23
2.1(c) Binding Obligations.................................. 24
2.1(d) No Violation......................................... 24
2.1(e) Litigation........................................... 24
2.1(f) No Default........................................... 24
2.1(g) Vessels.............................................. 24
2.1(h) Insurance............................................ 25
2.1(i) Citizenship and Qualification
as Owner.......................................... 25
2.1(j) Financial Information................................ 25
2.1(k) Tax Returns.......................................... 26
2.1(l) ERISA................................................ 26
2.1(m) Chief Executive Office............................... 26
2.1(n) Foreign Trade Control Regulations.................... 26
2.1(o) Equity Ownership..................................... 27
2.1(p) Environmental Matters................................ 27
2.1(q) Pending, Threatened or Potential
Environmental Claims.............................. 28
2.1(r) Compliance with ISM Code............................. 28
2.1(s) Threatened Withdrawal of DOC or SMC.................. 28
2.1(t) Year 2000 Issue...................................... 28
SECTION 3 ADVANCES......................................................... 28
3.1 Purposes............................................. 28
3.2 Term Loan Advances................................... 29
3.3 Revolving Credit Facility Advances................... 29
3.4 Drawdown Notice...................................... 29
3.5 Effect of Drawdown Notices........................... 29
3.6 Notation of Advances................................. 30
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SECTION 4 CONDITIONS....................................................... 30
4.1 Conditions to Restructure the Term Loan
and Revolving Credit Facility..................... 30
4.2 Further Conditions Precedent......................... 35
4.3 Satisfaction After Drawdown.......................... 36
4.4 Breakfunding Costs................................... 36
SECTION 5 REPAYMENT, PREPAYMENT AND
REDUCTION OF FACILITY............................. 36
5.1 Repayment of Term Loan............................... 36
5.2 Revolving Credit Facility............................ 36
5.3 Voluntary Prepayment of Term Loan.................... 37
5.4 Mandatory Prepayment of Term Loan.................... 37
5.5 Prepay Term Loans Pro Rata........................... 37
5.6 Application of Prepayments........................... 37
5.7 Voluntary Reduction of Revolving
Credit Facility................................... 37
SECTION 6 INTEREST AND RATE................................................ 38
6.1 Term Loan Applicable Rate
and Default Rate.................................. 38
6.2 Revolving Credit Facility Applicable
Rate and Default Rate............................. 38
6.3 Determination of Applicable Margin................... 38
6.4 Determination of LIBOR............................... 38
6.5 Interest Periods..................................... 39
6.6 Interest Payments.................................... 39
6.7 Payment on Banking Day............................... 39
6.8 Calculation of Interest.............................. 39
SECTION 7 PAYMENTS......................................................... 39
7.1 Place of Payments, No Set Off........................ 39
7.2 Tax Credits.......................................... 40
SECTION 8 EVENTS OF DEFAULT................................................ 40
8.1(a) Non-Payment of Principal............................. 40
8.1(b) Non-Payment of Interest or
Other Amounts..................................... 40
8.1(c) Representations...................................... 40
8.1(d) Covenants............................................ 40
8.1(e) Indebtedness......................................... 41
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8.1(f) Change of Control; Ownership or
Management of Other Security Parties.............. 41
8.1(g) U.S. Citizenship..................................... 41
8.1(h) Bankruptcy........................................... 41
8.1(i) Termination of Operations;
Sale of Assets.................................... 42
8.1(j) Judgments............................................ 42
8.1(k) Inability to Pay Debts............................... 42
8.1(l) Change in Financial Position......................... 42
8.1(m) Relevant Contracts................................... 42
8.1(n) Key Management Agreements............................ 42
8.1(o) Related Credit Agreement; OMI COLUMBIA Loan
Documents and Mortgage Securing OMI Debt............. 42
8.2 Indemnification...................................... 43
8.3 Application of Moneys................................ 43
SECTION 9 COVENANTS........................................................ 44
9.1(A)(i) Performance of Agreements............................ 44
9.1(A)(ii) Notice of Default; Litigation
and Adverse Change................................ 44
9.1(A)(iii) Obtain Consents...................................... 45
9.1(A)(iv) Financial Information................................ 45
9.1(A)(v) U.S. Citizenship; Qualification
to Own Foreign Flag Vessels....................... 46
9.1(A)(vi) Corporate Existence.................................. 46
9.1(A)(vii) Books and Records.................................... 46
9.1(A)(viii) Taxes and Assessments................................ 46
9.1(A)(ix) Inspection........................................... 46
9.1(A)(x) Compliance with Statutes, etc........................ 46
9.1(A)(xi) Environmental Matters................................ 47
9.1(A)(xii) ERISA................................................ 47
9.1(A)(xiii) Vessel Management.................................... 47
9.1(A)(xiv) Cash................................................. 47
9.1(A)(xv) Working Capital...................................... 48
9.1(A)(xvi) Debt Service Coverage Ratio.......................... 48
9.1(A)(xvii) Total Debt to EBITDA................................. 48
9.1(A)(xviii) Brokerage Commissions, etc........................... 48
9.1(A)(xix) Deposit Accounts; Assignment......................... 48
9.1(A)(xx) Proceeds of Marine Car Carriers (MI)................. 49
9.1(A)(xxi) Year 2000 Issue...................................... 49
9.1(A)(xxii) ISM Code Matter...................................... 49
9.1(A)(xxiii) OMI COLUMBIA......................................... 49
9.1(B)(i) Liens................................................ 50
9.1(B)(ii) Loans, Advances and Investments...................... 51
9.1(B)(iii) Indebtedness ........................................ 51
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9.1(B)(iv) Permitted Third Party Debt........................... 51
9.1(B)(v) Guarantees, etc...................................... 52
9.1(B)(vi) Changes in Business.................................. 52
9.1(B)(vii) Use of Corporate Funds............................... 52
9.1(B)(viii) Issuance of Shares................................... 52
9.1(B)(ix) Sale of Shares....................................... 52
9.1(B)(x) Sale of Assets....................................... 52
9.1(B)(xi) Capital Expenditures................................. 52
9.1(B)(xii) Changes in Offices or Names.......................... 52
9.1(B)(xiii) Changes in Management................................ 53
9.1(B)(xiv) Consolidation and Merger............................. 53
9.1(B)(xv) Chartering-in of Vessels............................. 53
9.1(B)(xvi) Dividends ........................................ 53
9.1(B)(xvii) Loan From Marine Car Carriers (MI)................... 53
9.2 Vessel Valuations........................................... 53
9.3 Asset Maintenance........................................... 53
9.4 Inspection and Survey Reports............................... 54
SECTION 10 ASSIGNMENT...................................................... 54
SECTION 11 ILLEGALITY, INCREASED COST,
NON-AVAILABILITY, ETC............................... 55
11.1 Illegality ........................................ 55
11.2 Increased Cost....................................... 55
11.3 Nonavailability of Funds............................. 56
11.4 Agent's Certificate Conclusive....................... 56
11.5 Compensation for Losses.............................. 56
SECTION 12 CURRENCY INDEMNITY.............................................. 58
12.1 Currency Conversion.................................. 58
12.2 Change in Exchange Rate.............................. 58
12.3 Additional Debt Due.................................. 58
12.4 Rate of Exchange..................................... 58
SECTION 13 FEES AND EXPENSES............................................... 58
13.1 Commitment Fee....................................... 58
13.2 Facility Fee......................................... 58
13.3 Other Fees........................................... 59
13.4 Expenses............................................. 59
SECTION 14 APPLICABLE LAW, JURISDICTION AND WAIVER......................... 59
14.1 Applicable Law....................................... 59
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14.2 Jurisdiction ........................................ 59
14.3 Waiver Of Jury Trial................................. 60
SECTION 15 THE AGENT....................................................... 60
15.1(a) Appointment of Agent................................. 60
15.1(b) Appointment of Security Trustee...................... 60
15.2 Distribution of Payments............................. 61
15.3 Holder of Interest in Note........................... 61
15.4 No Duty to Examine, Etc.............................. 61
15.5 Agent as Lender...................................... 61
15.6(a) Obligations of Agent................................. 61
15.6(b) No Duty to Investigate............................... 61
15.7(a) Discretion of Agent.................................. 61
15.7(b) Instructions of Majority Lenders..................... 61
15.8 Assumption re Event of Default....................... 62
15.9 No Liability of Agent or Lenders..................... 62
15.10 Indemnification of Agent............................. 62
15.11 Consultation with Counsel............................ 63
15.12 Resignation ........................................ 63
15.13 Representations of Lenders........................... 63
15.14 Notification of Event of Default..................... 63
SECTION 16 NOTICES AND DEMANDS............................................. 63
16.1 Notices in Writing................................... 63
16.2 Addresses for Notice................................. 64
16.3 Notices Deemed Received.............................. 64
SECTION 17 MISCELLANEOUS................................................... 64
17.1 Time of Essence...................................... 64
17.2 Unenforceable, etc., Provisions -
Effect............................................ 64
17.3 Indemnification...................................... 65
17.4 References........................................... 65
17.5 Further Assurances................................... 65
17.6 Prior Agreements, Merger............................. 65
17.7 Entire Agreement, Amendments......................... 66
17.8 Headings............................................. 66
CONSENT AND AGREEMENT AND ACCOUNT ASSIGNMENT................................ 67
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SCHEDULES
1 LENDERS
2 GUARANTORS
3 OTHER SUBSIDIARIES
4 MORTGAGED VESSELS
5 OTHER VESSELS
6 MANAGEMENT AGREEMENTS
7 LITIGATION, SUITS, PROCEEDINGS AND
ENVIRONMENTAL CLAIMS
EXHIBITS
1 AMENDED AND RESTATED TERM LOAN NOTE
2 AMENDED AND RESTATED REVOLVING CREDIT FACILITY NOTE
3 AMENDED AND RESTATED GUARANTY
4 U.S. MORTGAGE
5 U.S. MORTGAGE AMENDMENT
6 LIBERIAN MORTGAGE
7 LIBERIAN MORTGAGE AMENDMENT
8 EARNINGS ASSIGNMENTS
9 INSURANCES ASSIGNMENTS
10 GENERAL SECURITY AGREEMENT
11 ASSIGNMENT OF VESSEL MANAGEMENT RECEIVABLES
12 ASSIGNMENT OF JOINT VENTURE PROCEEDS
13 ASSIGNMENT OF GOVERNMENT RECEIVABLES
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14 NEGATIVE PLEDGE
15 DRAWDOWN NOTICE
16 COMPLIANCE CERTIFICATE
17 ASSIGNMENT AND ASSUMPTION AGREEMENT
18 WESTHAMPTON INDENTURE
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AMENDED AND RESTATED
TERM LOAN AND REVOLVING CREDIT FACILITY AGREEMENT
THIS AMENDED AND RESTATED TERM LOAN AND REVOLVING CREDIT FACILITY
AGREEMENT (this "Agreement") is made as of the day of June, 1998, by and between
(1) MARINE TRANSPORT LINES, INC., a corporation incorporated under the laws of
the State of Delaware with offices at 0000 Xxxxxxx Xxxxxxxxx, 9th Floor,
Weehawken, New Jersey (the "Borrower"), (2) the financial institutions listed on
Schedule 1 hereto (together with their respective successors and assigns
hereinafter called the "Lenders") and (3) DEN NORSKE BANK ASA, acting through
its New York branch, with offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Agent") and amends and restates that certain term loan and revolving
credit facility agreement, dated as of July 23, 1996 (the "Original Credit
Agreement"), among the parties.
WITNESSETH THAT:
WHEREAS:
A. Pursuant to the terms and conditions of the Original Credit
Agreement, the Lenders made (1) the Term Loan to the Borrower in respect of
which, as of the date hereof, the principal amount of Twelve Million One Hundred
Thirteen Thousand Dollars ($12,113,000) remains outstanding and (2) the
Revolving Credit Facility available to the Borrower; and
B. The Borrower has requested and the Lender, subject to the terms
and conditions hereof, has agreed to restructure the Term Loan and the Revolving
Credit Facility
NOW, THEREFORE, in consideration of the premises and of other good
and valuable consideration, the receipt and adequacy whereof are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 Defined Terms. The words and expressions specified in this Agreement shall,
except where the context otherwise requires, have the meanings attributed to
them below:
"Acceptable Accounting Firm" Ernst & Young, or such other
recognized international accounting
firm as shall be approved by the
Agent, such approval not to be
unreasonably withheld;
"Acquisition Agreement" that certain acquisition agreement,
dated as of September 15, 1997,
among OMI Corp.,
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Universal Bulk Carriers, Inc., the
Borrower and the persons set forth
on Exhibit A attached thereto,
together with any and all
amendments, modifications or
waivers of provisions thereof and
supplements thereto;
"Advance" each Term Loan Advance and each
Revolving Credit Facility Advance;
"Affiliate" as to any Person, any other Person
that, directly or indirectly,
controls or is controlled by or is
under common control with such
Person. (For purposes of this
definition, the term "control",
including the terms "controlling",
"controlled by" and "under common
control with", of a Person means
the possession, direct or indirect,
of the power to vote 5% or more of
the securities having ordinary
voting power for the election of
directors of such Person or to
direct or cause the direction of
the management and policies of such
Person, whether through the
ownership of voting securities, by
contract or otherwise);
"AMELINA" that certain 10,922 dwt Liberian
flag ammonia tanker named AMELINA,
Official No. 2015 documented under
the laws and flag of the Republic
of Liberia in the name of Oswego
Chemical Carriers Corporation;
"Argosy" Argosy Ventures Ltd., a Delaware
not-for-profit corporation
"Assignment and Assumption the Assignment and Assumption
Agreement(s)" Agreement(s) executed pursuant to
Section 10 substantially in the
form of Exhibit 17;
"Assignment Notices" notices for the (a) Earnings
Assignments substantially in the
form set out in Exhibit 1 thereto
or in such other form as the Agent
may agree;
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(b) Insurances Assignments
substantially in the form set out
in Exhibit 3 thereto or in such
other form as the Agent may agree;
(c) Assignments of Vessel
Management Receivables
substantially in the form set out
in Exhibit 1 thereto or in such
other form as the Agent may agree;
(d) Assignment of Joint Venture
Proceeds substantially in the form
set out in Exhibit 1 thereto or in
such other form as the Agent may
agree; and
(e) Assignments of Government
Receivables substantially in the
forms set out in Exhibits 1 and 2
thereto or in such other form as
the Agent may agree;
"Assignment of Government the assignments of receivables
Receivables" payable to the Borrower or Intrepid
Ship Management, Inc., as the case
may be, for their respective
contracts with MARAD executed or to
be executed by the Borrower in
favor of the Agent pursuant to, in
the case of the Borrower, the
Original Credit Agreement and, in
the case of Intrepid Ship
Management, Inc., Section 4.1 of
this Agreement, substantially in
the form of Exhibit 13 or in such
other form as the Agent may agree;
"Assignment of Joint Venture the assignment of those proceeds to
Proceeds" which Marine Car Carriers (Del) is
entitled based upon its shares in
Marine Car Carriers (MI) to be
executed by Marine Car Carriers
(Del) in favor of the Agent
pursuant to Section 4.1 of this
Agreement in the form set out in
Exhibit 12 or in such other form as
the Agent may agree;
"Assignment of Vessel the assignments executed or to be
Management Receivables" executed by Marine Transport
Management and Intrepid Ship
Management, Inc. in favor of the
Agent of
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all right, title and interest of
such Guarantors in their respective
receivables pursuant to, in the
case of Marine Transport
Management, the Original Credit
Agreement and, in the case of
Intrepid Ship Management, Inc.,
Section 4.1 of this Agreement,
substantially in the form set out
in Exhibit 11 or in such other form
as the Agent may require;
"Assignments" the Earnings Assignments, the
Insurances Assignments, the
Assignments of Government
Receivables, the General Security
Agreements, the Assignments of
Vessel Management Receivables and
the Assignment of Joint Venture
Proceeds;
"Banking Day(s)" day(s) on which banks are open for
the transaction of business of the
nature required by this Agreement
or any other documents executed in
connection herewith in London,
England and New York, New York;
"CALINA" that certain 15,661 dwt Liberian
flag ammonia tanker named CALINA,
Official No. 2774 documented under
the laws and flag of the Republic
of Liberia in the name of Oswego
Chemical Carriers Corporation;
"Cash Equivalents" (i) securities issued or directly
and fully guaranteed or insured by
the United States of America or any
agency or instrumentality thereof
(provided that the full faith and
credit of the United States of
America is pledged in support
thereof) having maturities of not
more than ninety (90) days from the
date of acquisition, (ii) time
deposits and certificates of
deposit, denominated in Dollars, of
the Agent, of any Lender or of any
commercial bank of recognized
standing organized under the laws
of any country which is a member of
the Organization of Economic
Cooperation and Development or any
governmental subdivision or taxing
authority of any such
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country having capital and surplus
in excess of Five Hundred Million
Dollars ($500,000,000) or its
equivalent in such country's
currency, (any such commercial
bank, a "Qualified Bank"), (iii)
repurchase obligations with a term
of not more than seven (7) days for
underlying securities of the types
described in (i) above entered into
with the Agent, any Lender or any
Qualified Bank, and (iv) commercial
paper, denominated in Dollars,
issued by the Agent, any Lender or
by the parent corporation of any
Qualified Bank, and commercial
paper rated at least A-1 or the
equivalent thereof by Standard &
Poor's Corporation or at least P-1
or the equivalent thereof by
Xxxxx'x Investor Services, Inc.,
and in each case maturing within
ninety (90) days after the date of
acquisition;
"Code" the Internal Revenue Code of 1986,
as amended, and any successor
statute and regulations promulgated
thereunder;
"Collateral Vessel Value" the aggregate, as calculated from
time to time in the manner provided
in Sections 9.2 and 9.3, of (a) the
FMVs of each of the Vessels then
mortgaged to secure obligations
owed to the Lenders under or in
connection with either this
Agreement or the Related Credit
Agreement and (b) the value of the
OMI COLUMBIA;
"Commitment(s)" that portion of the Term Loan and
the Revolving Credit Facility set
out opposite a Lender's name in
Schedule 1 hereto or, as the case
may be, in any relevant Assignment
and Assumption Agreement, as
reduced from time to time pursuant
to the terms of this Agreement;
"Compliance Certificate" a certificate of the Chief
Financial Officer of Marine
Transport Corporation certifying
the compliance with all of the
covenants of the Borrower and
Marine Transport
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Corporation contained herein,
delivered to the Agent from time to
time pursuant to Section 9.1(A)(iv)
hereof in the form set out in
Exhibit 16, or in such other form
as the Agent may require;
"Consents and Agreements" such third party consents as may be
required under any contract to
which a Security Party is a party
in order for a Security Party to
grant a security interest pursuant
to any Security Document;
"COURIER" that certain 1977 built 35,662 dwt
product tanker named COURIER,
Official No. 578746, documented
under the laws and flag of the
United States in the name of
Courier Transport, Inc.;
"DOC" means a document of compliance
issued to an Operator in accordance
with rule 13 of the ISM Code;
"Dollars" and the sign "$" the legal currency, at any relevant
time hereunder, of the United
States of America and, for all
payments hereunder, in same day
funds settled through the New York
Clearing House Interbank Payments
system (or such other Dollar funds
as may be determined by the Agent
to be customary for the settlement
in New York City of banking
transactions of the type herein
involved);
"Drawdown Date" each Term Loan Drawdown Date and
each Revolving Credit Facility
Drawdown Date;
"Drawdown Notice" the meaning ascribed thereto in
Section 3.4;
"Earnings Assignments" assignments of the earnings of the
Mortgaged Vessels executed or to be
executed by the appropriate
Shipowning Guarantor or OMI
Challenger Transport, in favor of
the Agent pursuant to, in the case
of Existing Guarantors, the
Original Credit Agreement as
amended and restated
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hereby and, in the case of New
Guarantors, Section 4.1
substantially in the form set out
in Exhibit 8 or in such other form
as the Agent may require;
"EBITDA" means, on a consolidated basis,
Marine Transport Corporation's
earnings before interest, taxes,
depreciation and amortization
(calculated in accordance with
GAAP) less income from 50% or less,
directly or indirectly, owned
affiliates, based on the preceding
twelve (12) months actual operating
income (for purposes of calculating
EBITDA for the period commencing
from the date hereof and ending on
the first anniversary of the date
hereof, the results for each
quarterly reporting period shall be
annualized);
"Environmental Affiliate" any person or entity liable for
Environmental Claims, which claims
any Security Party may have assumed
by contract or operation of law;
"Environmental Approvals" the meaning ascribed thereto in
Section 2.1(p);
"Environmental Claim" the meaning ascribed thereto in
Section 2.1(p);
"Environmental Laws" the meaning ascribed thereto in
Section 2.1(p);
"ERISA" the Employee Retirement Income
Security Act of 1974, as amended;
"ERISA Affiliate" a trade or business (whether or not
incorporated) which is under common
control with, or part of a
controlled group of corporations
with, any Security Party within the
meaning of Sections 414(b), (c),
(m) or (o) of the Code;
"Events of Default" any of the events set out in
Section 8.1;
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"Existing Guarantors" each of the companies listed on
Part A of Schedule 2;
"Final Payment Date" June ____, 2003, or if such day is
not a Banking Day, the next
following Banking Day unless such
next following Banking Day falls in
the following month, in which case
the Final Payment Date shall be the
immediately preceding Banking Day;
"Financing Documents" this Agreement, the Notes, the
Guaranty and the Security
Documents;
"FMV" with respect to a Vessel, fair
market value as determined in
accordance with Section 9.2 hereof;
"FNBM" The First National Bank of
Maryland, a bank organized and
existing under the laws of the
United States of America;
"Former Lenders" FNBM, Harrowston and Xxxxxxx;
"Former Lenders Indebtedness: the indebtedness of the Borrower
and/or its Affiliates formerly owed
to the Former Lenders in the
aggregate principal amount of
Twelve Million Five Hundred Twenty
Eight Thousand Dollars
($12,528,000), plus accrued and
unpaid interest thereon;
"GAAP" the meaning ascribed thereto in
Section 1.3;
"General Security Agreements" general security agreements to be
executed by each of the New
Guarantors which does not own a
Mortgaged Vessel in favor of the
Agent pursuant to Section 4.1
substantially in the form set out
in Exhibit 10 or in such other form
as the Agent may require;
"Guarantor(s)" each of the Existing Guarantors and
the New Guarantors;
"Guaranty" the amended and restated guaranty
of the obligations of the Borrower
under this
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Agreement and under the Notes to be
executed by each Guarantor in favor
of the Agent pursuant to Section
4.l substantially in the form set
out in Exhibit 3 or in such other
form as the Agent may require;
"Harrowston" Harrowston Corporation, a company
organized under the laws of Canada;
"Indebtedness" for any Person at any date of
determination (without
duplication), all (i) indebtedness
of such Person for borrowed money,
(ii) obligations of such Person
evidenced by bonds, debentures,
notes or other similar instruments,
(iii) obligations of such Person
arising from letters of credit or
other similar instruments
(including reimbursement
obligations with respect thereto),
(iv) except trade payables,
obligations of such Person to pay
the deferred and unpaid purchase
price of property or services,
which purchase price is due more
than six (6) months after the date
of placing such property in service
or taking delivery thereof or the
completion of such services, (v)
obligations on account of principal
of such Person as lessee under
capitalized leases, (vi)
indebtedness of other Persons
secured by a lien on any asset of
such Person, whether or not such
indebtedness is assumed by such
Person; provided that the amount of
such indebtedness shall be the
lesser of (a) the fair market value
of such asset at such date of
determination and (b) the amount of
such indebtedness, and (vii)
indebtedness of other Persons
guaranteed by such Person to the
extent such indebtedness is so
guaranteed. The amount of
Indebtedness of any Person at any
date shall be the outstanding
balance at such date of all
unconditional obligations as
described above and, with respect
to contingent obligations, the
maximum liability upon the
occurrence of the contingency
giving rise to the obligation,
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provided that the amount
outstanding at any time of any
indebtedness issued with original
issue discount is the face amount
of such indebtedness less the
remaining unamortized portion of
the original issue discount of such
indebtedness at such time as
determined in conformity with GAAP;
and provided further that
Indebtedness shall not include any
liability for federal, state, local
or other taxes;
"Insurances Assignments" assignments of the insurances of
the Mortgaged Vessels to be
executed by the appropriate
Shipowning Guarantor in favor of
the Agent or the Westhampton
Trustee, as the case may be,
pursuant to in the case of Existing
Guarantors, the Original Credit
Agreement as amended and restated
hereby and, in the case of the New
Guarantors, Section 4.1
substantially in the form set out
in Exhibit 9 or in such other form
as the Agent may require;
"Interest Notice" a notice delivered to the Agent
pursuant to Section 6.5 specifying
the duration of any relevant
Interest Period;
"Interest Period(s)" period(s) of one (1), two (2),
three (3) or six (6) months
selected by the Borrower or such
other period(s) as may be agreed
between the Borrower and the
Lenders;
"Intrepid Ship Management, Inc." Intrepid Ship Management, Inc., a
corporation organized and existing
under the laws of the State of
Delaware;
"ISM Code" means the International Safety
Management Code for the Safe
Operating of Ships and for
Pollution Prevention constituted
pursuant to Resolution A.741(18)
of the International Maritime
Organization and incorporated into
the Safety of Life at Sea
Convention including any amendments
or extensions thereto and any
regulation issued pursuant thereto;
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"Key Management Agreements" a) that certain vessel operating
agreement between Marine Transport
Management and Union Carbide
Corporation, dated as of January 1,
1996, for the United States flag
vessel CHEMICAL PIONEER (Official
No. 661060) and any renewals or
extensions thereof,
b) that certain operating
agreement, dated December 18, 1979
between Marine Alaska and Marine
Transport Management, relating to
the United States flag vessel B.T.
ALASKA (Official No. 590208) and
any renewals or extensions thereof,
c) that certain vessel management
agreement between .Marine Transport
Corporation and OMI Challenger
Transport, dated as of January 29,
1997, as amended, for the OMI
COLUMBIA and any renewals or
extensions thereof ,
d) that certain contract No.
DTMA98-98-C-00004, awarded June 12,
1998, between the Borrower and
MARAD relating to the United States
flag vessels CAPE COD and CAPE
CHALMERS and any renewals or
extensions thereof,
e) that certain contract No.
DTMA98-98-C-00009, awarded June 12,
1998, between the Borrower and
MARAD relating to the United States
flag vessels CAPE EDMONT and CAPE
DUCATO and any renewals or
extensions thereof,
f) that certain contract No.
DTMA98-98-C-00010, awarded June 12,
1998, between the Borrower and
MARAD relating to the United States
flag vessels CAPE DECISION and CAPE
XXXXXXX and any renewals or
extensions thereof,
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g) that certain contract No.
DTMA98-98-C-00011, awarded June 12,
1998, between the Borrower and
MARAD relating to the United States
flag vessels CAPE DIAMOND, and CAPE
XXXXXXX and any renewals or
extensions thereof, and
h) that certain contract NO:
DTMA98-98-C-00033, awarded June 12,
1998, between the Borrower and
MARAD relating to the United States
flag vessels CAPE BON and NORTHERN
LIGHT and any renewals or
extensions thereof;
"Liberian Mortgages" those first preferred Liberian ship
mortgages on the each Mortgaged
Vessel registered under the laws
and flag of the Republic of Liberia
to be executed by the appropriate
Shipowning Guarantor in favor of
the Agent pursuant to the Original
Credit Agreement as amended and
restated hereby substantially in
the form set out in Exhibit 6 or in
such other form as the Agent may
require;
"LIBOR" the rate (rounded upward to the
nearest 1/16th of one percent) for
deposits of Dollars for a period
equivalent to the relevant Interest
Period at or about 11:00 a.m.
(London time) on the second London
Banking Day before the first day of
such period as displayed on
Telerate page 3750 (British
Bankers' Association Interest
Settlement Rates) (or such other
page as may replace such page 3750
on such system or on any other
system of the information vendor
for the time being designated by
the British Bankers' Association to
calculate the BBA Interest
Settlement Rate (as defined in the
British Bankers' Association's
Recommended Terms and Conditions
("BBAIRS" terms) dated August
1985)), provided that if on such
date no such rate is so displayed
for the relevant Interest Period,
LIBOR for
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such period shall be the rate
offered by the Agent for deposits
of Dollars in an amount
approximately equal to the amount
for which LIBOR is to be determined
for a period equivalent to the
relevant Interest Period to prime
banks in the London Interbank
Market at or about 11:00 a.m.
(London time) on the second Banking
Day before the first day of such
period;
"Majority Lenders" Lenders whose Commitments exceed
sixty-seven percent (67%) of the
total Commitments;
"Management Agreements" the management and/or operating
contracts listed on Schedule 6
hereto;
"MARAD" the United States Maritime
Administration:
"Marine Alaska" Marine Alaska, Inc., a Delaware
corporation;
"Marine Car Carriers (Del) " Marine Car Carriers, Inc., a
Delaware corporation;
"Marine Car Carriers (MI) " Marine Car Carriers, Inc. (M.I.), a
Xxxxxxxx Islands corporation;
"Marine Transport Corporation" Marine Transport Corporation, a
corporation incorporated under the
laws of the State Delaware and
formerly named OMI Corp.;
"Marine Transport Management" Marine Transport Management, Inc.,
a corporation incorporated under
the laws of the State of Delaware;
"Margin" the meaning ascribed thereto in
Section 6.3;
"MARINE CHEMIST" that certain 1970 built 36,526 dwt
chemical tanker named MARINE
CHEMIST, Official No. 529399,
documented under the laws and flag
of the United States in the name of
Marine Chemical Navigation
Corporation;
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"MARINE XXXXX" that certain 1970 rebuilt 25,131
dwt molten sulphur carrier named
MARINE XXXXX, Official No. 245851,
documented under the laws and flag
of the United States in the name of
Marine Sulphur Shipping
Corporation;
"Materials of Environmental Concern" the meaning ascribed thereto in
Section 2.1(p);
"MCCMI Shareholders Agreement" that certain shareholders agreement
among the shareholders of Marine
Car Carriers (MI) dated as of March
1, 1995;
"Mortgage Amendments" those certain amendments to the
Mortgages to be executed by each of
the Shipowning Guarantors in
respect of its Mortgaged Vessel in
the forms set out in Exhibits 5 and
7 or in such other form as the
Agent may agree;
"Mortgaged Vessels" the Vessels identified on Schedule
4;
"Mortgages" the U.S. Mortgages and the Liberian
Mortgages as amended by the
Mortgage Amendments, and the
Mortgages over the New Mortgaged
Vessels;
"Mortgages Securing the those certain first preferred ship
OMI Debt" mortgages over the Workboats in
favor of the OMI and securing the
OMI Debt;
"Negative Pledge" the negative pledge by OMI
Challenger Transport of any of its
interest in the OMI COLUMBIA or any
Vessel Agreement relating to such
Vessel substantially in the form of
Exhibit 16.
"New Guarantors" each of the companies listed on
Part B of Schedule 2;
"New Mortgaged Vessels" the COURIER, PATRIOT, ROVER, OMS
MAVERICK and OMS XXXXXX;
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"Notes" the Term Loan Note and the
Revolving Credit Facility Note;
"OMI" OMI Corporation, a corporation
incorporated under the laws of the
Xxxxxxxx Islands;
"OMI Challenger Transport" OMI Challenger Transport, Inc., a
corporation incorporated under the
laws of the State of Delaware;
"OMI COLUMBIA" that certain 1974 built 138,698 dwt
oil tanker named OMI COLUMBIA,
Official No. 663428, documented
under the laws and flag of the
United States in the name of
Argosy;
"OMI Debt" Indebtedness of Marine Transport
Corporation to OMI in the original
principal amount of Six Million
Four Hundred Forty-Three Thousand
Dollars ($6,443,000);
"OMI COLUMBIA Loan Documents" that certain credit agreement dated
as of January 29, 1997 among
Citicorp North American, Inc., as
agent, the Lenders (as defined
therein), Argosy, et al, and any
documents executed in connection
therewith or securing any
obligation owing thereunder;
"OMS MAVERICK" the United States flag vessel OMS
MAVERICK, Official No. 517406,
registered in the name of OMI
Petrolink Corp.;
"OMS XXXXXX" the United States flag vessel OMS
XXXXXX, Official No. 587445,
registered in the name of OMI
Petrolink Corp.;
"Operator" means any Person approved by the
Agent who is from, time to time
during the Security Period,
concerned with the operation of a
Vessel and falls within the
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definition of "Company" set out in
rule 1.1.2 of the ISM Code;
"Other Vessels" the vessels identified on Schedule
5;
"PATRIOT" that certain 1976 built 35,662 dwt
product tanker named PATRIOT,
Official No. 571049, documented
under the laws and flag of the
United States in the name of
Patriot Transport, Inc.;
"Permitted Indebtedness" collectively, the Indebtedness
incurred under this Agreement, the
Related Indebtedness, the OMI
Indebtedness and Permitted Third
Party Debt;
"Permitted Liens" the meaning ascribed thereto in
Section 9.1(B)(i);
"Permitted Third Party Debt" Indebtedness, incurred with
recourse to any Security Party or
any other party owned directly or
indirectly by Marine Transport
Corporation and for the purposes of
acquiring new assets or supporting
MARAD vessel management contracts,
not to exceed, in the aggregate,
the principal amount of Twenty
Million Dollars ($20,000,000)
outstanding at any time;
"Person" means any individual, sole
proprietorship, corporation,
partnership (general or limited),
business trust, bank, trust
company, joint venture,
association, joint stock company,
trust or other unincorporated
organization, whether or not a
legal entity, or any government or
agency or political subdivision
thereof;
"Plan" any employee benefit plan covered
by Title IV of ERISA;
"Related Credit Agreement" that certain term loan and
revolving credit agreement of even
date herewith among Marine
Transport Corporation, as borrower,
the Lenders and the Agent, as
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the same may hereafter be amended
or supplemented;
"Related Indebtedness" the Indebtedness of the Security
Parties owed under and in
connection with the Related Credit
Agreement;
"Related Security Documents" the "Security Documents" as defined
in the Related Credit Agreement;
"Related Term Loan" the "Term Loan" as defined in the
Related Credit Agreement;
"Relevant Contracts" a) that certain time charter, dated
April 31, 1982, of the MARINE XXXXX
to Freeport MacMoran Resource
Partners, Limited Partnership and
any renewals or extensions thereof;
b) the contract of affreightment,
dated as of January 1, 1996, with
Shell Oil Company for the MARINE
CHEMIST and any renewals or
extensions thereof;
c) the contract of affreightment,
dated September 24, 1994, with PPG
Industries, Inc. for the MARINE
CHEMIST and any renewals or
extensions thereof;
d) the contract of affreightment,
dated as of July 1, 1996, with ARCO
Products Company for the MARINE
CHEMIST and any renewals or
extensions thereof;
e) that certain bareboat charter
dated on or about July 29, 1965, of
the CALINA between Oswego Chemical
Carriers Corporation, as owner, and
Oswego Corporation, as charterer
and any renewals or extensions
thereof;
f) that certain time charter, dated
as of March 14, 1978 between Marine
Alaska, Inc. and BP Oil Shipping
Company, USA, for the United States
flag vessel B.T.
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26
ALASKA (Official No. 590208) and
any renewals or extensions thereof;
g) that certain time charter, dated
as of June 1, 1994 between OMI
Challenger Transport and BP Oil
Shipping Company, USA for the OMI
COLUMBIA, and
h) that certain time charter, dated
as of January 29, 1997 between
Argosy and OMI Challenger Transport
in respect of the OMI COLUMBIA and
any renewals or extensions thereof;
"Revolving Credit Facility" the sums heretofore advanced and
still outstanding and hereafter to
be advanced by the Lenders to the
Borrower in an aggregate amount not
to exceed at any one time
outstanding One Million Dollars
($1,000,000) pursuant to Section
3.3;
"Revolving Credit Facility Advance" any amount advanced to the Borrower
under the Revolving Credit Facility
on any Revolving Credit Facility
Drawdown Date;
"Revolving Credit Facility Applicable Rate" any rate of interest on the
Revolving Credit Facility Balance
from time to time prescribed by
Section 6.2;
"Revolving Credit Facility Balance" the outstanding Dollar amount of
the Revolving Credit Facility
Advances at any relevant time;
"Revolving Credit Facility Default Rate" has the meaning ascribed thereto in
Section 6.2;
"Revolving Credit Facility Drawdown Date" each date which is a Banking Day
not later than May ____, 2003, upon
which the Borrower has requested
any Revolving Credit Facility
Advance as provided in Section 3.3;
"Revolving Credit Facility Note" the amended and restated promissory
note, amending and restating the
"Revolving Credit Facility Note"
(as defined in the
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Original Credit Agreement) to be
executed by the Borrower to the
order of the Lenders to evidence
the Revolving Credit Facility
substantially in the form set out
in Exhibit 2 or in such other form
as the Agent may require;
"ROVER" that certain 1977 built 35,662 dwt
product tanker named ROVER,
Official No. 577241, documented
under the laws and flag of the
United States in the name of Rover
Transport, Inc.;
"SAVONETTA" that certain 10,947 dwt Liberian
flag ammonia tanker named
SAVONETTA, Official No. 2129,
documented under the laws and flag
of the Republic of Liberia in the
name of Oswego Chemical Carriers
Corporation;
"Security Documents" the Mortgages, the Assignments, the
Assignment Notices, the Consents
and Agreements, the Negative Pledge
and any other documents that may be
executed as security for the Term
Loan and/or the Revolving Credit
Facility and the Borrower's
obligations arising therefrom;
"Security Parties" the Borrower and each Guarantor;
"Security Period" the period from the initial
Drawdown Date of the initial Term
Loan Advance to the date upon which
all amounts owing under the Term
Loan and the Revolving Credit
Facility and all other amounts due
to the Lenders, the Agent and the
Westhampton Trustee pursuant to the
Financing Documents are prepaid in
full or become repayable and are
repaid in full and no further
Revolving Credit Facility Advances
are available;
"Shipowning Guarantors" each of the Guarantors which owns a
Mortgaged Vessel;
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"SMC" means a safety management
certificate issued for a Vessel in
accordance with rule 13 of the ISM
Code;
7
"Taxes" any present or future income or
other taxes, levies, duties,
charges, fees, deductions, or
withholdings of any nature now or
hereafter imposed, levied,
collected, withheld or assessed by
any taxing authority whatsoever,
except for taxes on or measured by
the income of the Agent or any
Lender imposed by the Agent's or
such Lender's jurisdiction of
organization, the jurisdiction of
the principal place of business of
the Agent or such Lender, the
United States of America, the State
or City of New York or any
governmental subdivision or taxing
authority of any of them or by any
other jurisdiction or taxing
authority having jurisdiction over
the Agent or such Lender (unless
such jurisdiction is asserted by
reason of the activities of the
Security Parties or any of them);
"Term Loan" the sum advanced by the Lenders
pursuant to the Original Credit
Agreement in the current
outstanding principal amount of
Twelve Million One Hundred Thirteen
Thousand Dollars ($12,113,000);
"Term Loan Advance" the amount advanced to the Borrower
pursuant to Section 3.2 on a Term
Loan Drawdown Date;
"Term Loan Applicable Rate" any rate of interest on the Term
Loan Balance from time to time
applicable pursuant to Section 6.1;
"Term Loan Balance" the Dollar amount of the Term Loan
at any relevant time as reduced by
payments pursuant to the terms of
this Agreement;
"Term Loan Default Rate" has the meaning ascribed thereto in
Section 6.1;
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29
"Term Loan Drawdown Date" each date, which is a Banking Day
not later than August 15, 1996,
upon which the Borrower has
requested that a Term Loan Advance
be made available to the Borrower
as provided in Section 3.2;
"Term Loan Note" the amended and restated promissory
note, amending and restating "Term
Loan Note A" (as defined in the
Original Credit Agreement) to be
executed by the Borrower to the
order of the Lenders to evidence
the Term Loan substantially in the
form set out in Exhibit 1 or in
such other form as the Agent may
require;
"Term Loan Payment Dates" (i) September ____, 1998 and (ii)
each of the dates falling at
intervals of three (3) months after
such date up to and including the
Final Payment Date, provided,
however, that if any such day is
not a Banking Day, the next
following Banking Day, unless such
next following Banking Day falls in
the following calendar month, in
which case the relevant Term Loan
Payment Date shall be the
immediately preceding Banking Day;
"Total Debt" the Indebtedness of Marine
Transport Corporation on a
consolidated basis;
"Total Loss" the actual, agreed, arranged or
compromised total loss of any
Vessel;
"Unrestricted Cash and Cash
Equivalents" cash or Cash Equivalents
(excluding, however, undrawn
amounts available under the
Revolving Credit Facility or under
the Related Credit Agreement) which
are free of liens and unencumbered
to any party other than the Agent,
the Lenders and the Westhampton
Trustee in connection herewith;
"U.S. Mortgages" the first preferred United States
ship mortgages on each Mortgaged
Vessel registered under the laws
and flag of the
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United States of America to be
executed by the appropriate
Shipowning Guarantor in favor of
the Westhampton Trustee pursuant
to, in the case of Existing
Guarantors, the Original Credit
Agreement as amended and restated
and, in the case of New Guarantors,
Section 4.1 substantially in the
form set out in Exhibit 4 or in
such other form as the Agent may
require;
"Vessel Agreements" a) the Relevant Contracts;
b) that certain time charter, dated
January 1, 1985 (as amended), of
the SAVONETTA to Hydro Agri
Ammonia, Inc.;
c) that certain time charter, dated
September 16, 1987 (as amended), of
the CALINA to Hydro Agri Ammonia,
Inc.;
d) that certain time charter, dated
January 1, 1985 (as amended), of
the AMELINA to Hydro Agri Ammonia,
Inc.;
e) the Mortgage(s) securing the OMI
Debt; and
f) the OMI COLUMBIA Loan Documents.
"Vessels" the Mortgaged Vessels and the Other
Vessels;
"Westhampton Trustee" Fleet National Bank, a national
banking association, as trustee
pursuant to the Westhampton
Indenture;
"Westhampton Indenture" the Trust Indenture, dated as of
July 23, 1996, between the Lenders
and the Westhampton Trustee
pursuant to the Original Credit
Agreement substantially in the form
set out in Exhibit 18 or in such
other form as the Agent may
require;
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"Xxxxxxx" The Xxxxxxx Descendants' 1983
Trust, a grantor trust established
under the laws of New Jersey; and
"Work Boats" the United States flag vessels
OMS XXXXXX (Official No. 650997),
OMS NUECES (Official Xx. 000000),
XXX XXXXXXX (Official No. 602050)
and
OMS SHELBY (Official No. 603076)
"Year 2000 Issue" the failure of computer software,
hardware and firmware systems and
equipment containing embedded
computer chips properly to receive,
transmit or in any other way
utilize data and information due to
the occurrence of the year 2000 or
the inclusion of dates on or after
January 1, 2000.
1.2 Construction. Words importing the singular number only shall include the
plural and vice versa. Words importing persons shall include companies, firms,
corporations, partnerships, unincorporated associations and their respective
successors and assigns.
1.3 Accounting Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles as in
effect from time to time in the United States of America consistently applied
("GAAP") and all financial statements submitted pursuant to this Agreement shall
be prepared in accordance with, and all historical financial data submitted
pursuant hereto shall be derived from financial statements prepared in
accordance with, GAAP.
2. REPRESENTATIONS AND WARRANTIES
2.1 In order to induce the Agent and the Lenders to amend and restate the
Original Credit Agreement as provided herein and to continue to maintain the
Term Loan and the availability of the Revolving Credit Facility, the Borrower
hereby represents and warrants to the Agent and the Lenders (which
representations and warranties shall survive the execution and delivery of this
Agreement and the Notes and the making of such advances) that:
(a) Due Organization and Power. Each of the Security Parties is duly
formed and is validly existing in good standing under the laws of its
jurisdiction of incorporation, has full power to carry on its business as now
being conducted and to enter into and perform its obligations under those
Financing Documents to which is or is to be a party pursuant to this Agreement,
and has complied with all (i) statutory, regulatory and other requirements
relative to such business; and (ii) such agreements which if not
23
32
complied with, could reasonably be expected to have a material adverse effect on
its business, assets or operations, financial or otherwise;
(b) Authorization and Consents. All necessary corporate action has
been taken to authorize, and all necessary consents and authorities have been
obtained and remain in full force and effect to permit, each Security Party to
enter into and perform its obligations under those Financing Documents to which
it is or is to be a party pursuant to this Agreement and, in the case of the
Borrower, to borrow, service and repay the Term Loan and the Revolving Credit
Facility and, as of the date of this Agreement, no further consents or
authorities are necessary for the borrowing, service and repayment of the Term
Loan and/or the Revolving Credit Facility or any part thereof;
(c) Binding Obligations. Each of the Financing Documents constitutes
or, when executed will constitute, the legal, valid and binding obligation of
each Security Party which is a party thereto enforceable against such Security
Party in accordance with its terms, except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting generally the enforcement of creditors' rights;
(d) No Violation. The execution and delivery of, and the performance
of the provisions of, each Financing Document by each Security Party which is a
party thereto do not, and will not during the Security Period, contravene any
applicable law or regulation existing at the date hereof or any contractual
restriction binding on such Security Party or its certificate of incorporation,
by-laws or equivalent documents;
(e) Litigation. Except as set forth on Schedule 7 hereto, no action,
suit or proceeding is pending or threatened against any Security Party before
any court, board of arbitration or administrative agency which (after taking
into account the benefits of any applicable insurance which can reasonably be
expected to be recovered by the relevant Security Party, as the case may be)
could or might result in any material adverse change in the business or
condition (financial or otherwise) of any thereof;
(f) No Default. No Security Party or Marine Car Carriers (MI) is in
default under any material agreement by which it is bound, or is in default in
respect of any material financial commitment or obligation;
(g) Vessels. As of the date hereof:
(i) each of the Mortgaged Vessels is in the sole and
absolute ownership of the respective Guarantor, as
listed opposite its name in Schedule 4, unencumbered,
save and except for, the respective Mortgage recorded
thereagainst, the relevant Related Security Documents
and the respective Vessel Agreements, and duly
registered in the name of such Guarantor under the
respective flag as set forth in Schedule 4;
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(ii) each of the Other Vessels is in the sole and absolute
ownership of an Affiliate of the Borrower or, in the
case of OMI COLUMBIA, Argosy, as listed opposite its
name in Schedule 5, unencumbered, save and except for,
the respective Vessel Agreements, and duly registered in
the name of such Affiliate of the Borrower under the
respective flag as set forth in Schedule 5;
(iii) each Vessel will be classed in the highest
classification and rating for vessels of the same age
and type with the respective classification society as
set forth in Schedules 4 and 5 without any material
outstanding recommendations;
(v) each Vessel will be operationally seaworthy and in all
material respects fit for its intended service;
(v) each of the Mortgaged Vessels will be insured in
accordance with the provisions of the governing Mortgage
in favor of the Agent or the Westhampton Trustee, as the
case may be, and the requirements thereof for such
insurances will have been complied with and each of the
Other Vessels will be insured against such risks, in
such amounts and with such insurance companies as would
a reasonably prudent shipowner engaged in the same
trades; and
(vi) each Vessel subject to a charter or other contract of
carriage constituting a Vessel Agreement has been
accepted by its respective charterer and is in service
under such Vessel Agreement;
(h) Insurance. Each of the Security Parties has insured its
properties and assets against such risks and in such amounts as are customary
for companies engaged in similar businesses;
(i) Citizenship and Qualification as Owner. Each Security Party or
other Affiliate of the Borrower owning a United States flag Vessel is a United
States citizen within the meaning of Section 2 of the United States Shipping
Act, 1916, as amended (46 U.S.C. ss.802), qualified to own and operate vessels
in the coastwise trade of the United States of America and each Security Party
or other Affiliate of the Borrower which is the registered owner of a Vessel
registered under a flag other than the United States of America is duly
qualified under the laws of such flag to be the registered owner and operator of
a vessel registered under such flag;
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34
(j) Financial Information. Except as otherwise disclosed in writing
to the Agent on or prior to the date hereof, all financial statements,
information and other data furnished by the Borrower to the Agent are complete
and correct, and such financial statements have been prepared in accordance with
GAAP and accurately and fairly present the financial condition of the parties
covered thereby as of the respective dates thereof and the results of the
operations thereof for the period or respective periods covered by such
financial statements and since such date or dates, there has been no material
adverse change in the financial condition or results of the operations of any of
such parties and none thereof has any contingent obligations, liabilities for
taxes or other outstanding financial obligations which are material in the
aggregate except as disclosed in (a) such statements, information and data or
(b) in Schedule 7 prepared pursuant to Section 2.1(e) of this Agreement;
(k) Tax Returns. Except as previously advised to the Lender in
writing, each Security Party has filed all tax returns required to be filed
thereby and has paid all taxes payable thereby which have become due, other than
those (a) not yet delinquent or the nonpayment of which would not have a
material adverse effect on such Security Party; and (b) being contested in good
faith and by appropriate proceedings or other acts and for which adequate
reserves have been set aside on its books;
(l) ERISA. The execution and delivery of this Agreement and the
consummation of the transactions hereunder will not involve any prohibited
transaction within the meaning of ERISA or Section 4975 of the Code and no
condition exists or event or transaction has occurred in connection with any
Plan maintained or contributed to by any Security Party or any ERISA Affiliate
(as such term is hereinafter defined) resulting from the failure of any such
party to comply with ERISA insofar as ERISA applies thereto which is reasonably
likely to result in such Security Party or any ERISA Affiliate incurring any
liability, fine or penalty which individually or in the aggregate would have a
material adverse effect on such Security Party or ERISA Affiliate. As used
herein the term "ERISA Affiliate" means a trade or business (whether or not
incorporated) which is under common control with the Security Party in question
within the meaning of Sections 414(b), (c), (m) or (o) of the Code. Prior to the
date hereof, the Borrower has delivered to the Agent a list of all the employee
benefit plans to which each Security Party or any ERISA Affiliate is a "party in
interest" (within the meaning of Section 3(14) of ERISA) or a "disqualified
person" (within the meaning of Section 4975(e)(2) of the Code);
(m) Chief Executive Office. Each Security Party's chief executive
office and chief place of business and the office in which the records relating
to the earnings and other receivables of such Security Party are kept is, and
will continue to be, located at 0000 Xxxxxxx Xxxxxxxxx, 9th Floor, Weehawken,
New Jersey or, in the case of OMI Petrolink Corp. and its Subsidiaries, 0000 XX
0000 Xxxx Xxxxx 000, Xxxxxxx, Xxxxx and. in the case of Intrepid Ship Management
Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx;
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(n) Foreign Trade Control Regulations. None of the transactions
contemplated herein will violate any of the provisions of the Foreign Assets
Control Regulations of the United States of America (Title 31, Code of Federal
Regulations, Chapter V, Part 500, as amended), any of the provisions of the
Cuban Assets Control Regulations of the United States of America (Title 31, Code
of Federal Regulations, Chapter V, Part 515, as amended), any of the provisions
of the Libyan Assets Control Regulations of the United States of America (Title
31, Code of Federal Regulations, Chapter V, Part 550, as amended), any of the
provisions of the Iraqi Sanctions Regulations (Title 31, Code of Federal
Regulations, Chapter V, Part 575, as amended), any of the provisions of the
Iranian Transactions Regulations of the United States of America (Title 31, Code
of Federal Regulations, Chapter V, part 560, as amended), any of the provisions
of the Federal Republic of Yugoslavia (Serbia and Montenegro) Assets Control
Regulations (Title 31, Code of Federal Regulations, Chapter V, Part 585 as
amended) or any of the provisions of the Regulations of the United States of
America Governing Transactions in Foreign Shipping of Merchandise (Title 31,
Code of Federal Regulations, Chapter V, Part 505, as amended);
(o) Equity Ownership. Each of the Security Parties (other than
Marine Transport Corporation) is a direct or indirect wholly-owned subsidiary of
the Marine Transport Corporation. As of the date hereof, Marine Transport
Corporation will not own any shares of capital stock, partnership interest or
any other direct or indirect equity interest in any corporation, partnership or
other entity except the Security Parties and the companies listed on Schedule 3;
(p) Environmental Matters. Except as heretofore disclosed on
Schedule 7, (i) each of the Security Parties and their Environmental Affiliates
will, when required, be in full compliance with all applicable United States
federal and state, local, foreign and international laws, regulations,
conventions and agreements relating to pollution prevention or protection of
human health or the environment (including, without limitation, ambient air,
surface water, ground water, navigable waters, waters of the contiguous zone,
ocean waters and international waters), including, without limitation, laws,
regulations, conventions and agreements relating to (1) emissions, discharges,
releases or threatened releases of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous materials, oil, hazardous substances, petroleum and
petroleum products and by-products ("Materials of Environmental Concern"), or
(2) the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Materials of Environmental Concern
("Environmental Laws"); (ii) each of the Security Parties and their
Environmental Affiliates will, when required, have all permits, licenses,
approvals, rulings, variances, exemptions, clearances, consents or other
authorizations required under applicable Environmental Laws ("Environmental
Approvals") and will, when required, be in full compliance with all
Environmental Approvals required to operate their business as then being
conducted; (iii) none of the Security Parties or their Environmental Affiliates
has received any notice of any claim, action, cause of action, investigation or
demand by any person, entity, enterprise or government, or any political
subdivision, intergovernmental body or agency, department or instrumentality
thereof, alleging potential liability for, or a requirement to incur,
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investigatory costs, cleanup costs, response and/or remedial costs (whether
incurred by a governmental entity or otherwise), natural resources damages,
property damages, personal injuries, attorneys' fees and expenses, or fines or
penalties, in each case arising out of, based on or resulting from (1) the
presence, or release or threat of release into the environment, of any Materials
of Environmental Concern at any location, whether or not owned by such person,
or (2) circumstances forming the basis of any violation, or alleged violation,
of any Environmental Law or Environmental Approval ("Environmental Claim")
(other than Environmental Claims that have been fully and finally adjudicated or
otherwise determined and all fines, penalties and other costs, if any, payable
by the Security Parties or any Environmental Affiliate any thereof in respect
thereof have been paid in full or are fully covered by insurance (including
permitted deductibles)); and (iv) there are no circumstances existing as of the
date hereof that may prevent or interfere with such full compliance in the
future;
(q) Pending, Threatened or Potential Environmental Claims. Except as
heretofore disclosed on Schedule 7 there are no (1) Environmental Claims pending
or threatened against any Security Party or its Environmental Affiliates and (2)
past or present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission, discharge or
disposal of any Materials of Environmental Concern, that could form the basis of
any Environmental Claim against any Security Party or its Environmental
Affiliates;
(r) Compliance with ISM Code. Each Vessel and any Operator complies
with the requirements of the ISM Code, including (but not limited to) the
maintenance and renewal of valid certificates pursuant thereto;
(s) Threatened Withdrawal of DOC or SMC. There is no threatened or
actual withdrawal of any Operator's DOC or the SMC in respect of any Vessel; and
(t) Year 2000 Issue. The Borrower and each of the guarantors have
reviewed the effect of the Year 2000 Issue on the computer software, hardware
and firmware systems and equipment containing embedded microchips owned or
operated by or for the Borrower and the Guarantors or used or relied upon in the
conduct of their business (including systems and equipment supplied by others or
with which such computer systems of the Borrower and the guarantors interface).
The costs to the Borrower and the Guarantors of any reprogramming required as a
result of the Year 2000 Issue to permit the proper functioning of such systems
and equipment and the proper processing of data, and the testing of such
reprogramming, and of the reasonably foreseeable consequence of the year 2000
Issue to the Borrower or any of the Guarantors (including reprogramming errors
and the failure of systems or equipment supplied by others) are not reasonably
expected to result in a Default or Event of Default or to have a material
adverse effect on the business, assets, operations, prospects or condition
(financial or otherwise) of the Borrower or any of the Guarantors.
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3. ADVANCES
3.1 Purposes. (a) The proceeds of Term Loan shall be applied solely and
exclusively for the purpose of refinancing the Former Lenders Indebtedness
together with a portion of the indebtedness owed to Harrowston and Xxxxxxx and
previously repaid by the Borrower, on a pro rata basis, to Harrowston and
Xxxxxxx in the principal amount of approximately One Million Three Hundred
Thirty-Five Thousand Dollars ($1,335,000)and
(b) the proceeds of Revolving Credit Facility shall be applied
solely and exclusively for working capital purposes of the Borrower and the
Guarantors.
3.2 Term Loan Advances. Each of the Lenders, relying upon each of the
representations and warranties set out in Section 2, hereby agrees with the
Borrower that, subject to and upon the terms of this Agreement, it will on the
Term Loan Drawdown Dates, make the Term Loan Advances available to the Borrower
in an aggregate amount not to exceed, on a pro rata basis, its Commitment for
its respective portion of the Term Loan, provided, however, that (a) the Term
Loan may only be drawn down in a single Advance and (b) to the extent that any
portion of the Term Loan remains undrawn as of 12:00 noon (New York time) on
October 31, 1996, each Lender's commitment to advance such undrawn portion of
its Commitment thereunder shall expire.
3.3 Revolving Credit Facility Advances. Each of the Lenders, relying upon each
of the representations and warranties set out in Section 2, hereby agrees with
the Borrower that, subject to the terms of this Agreement, it will on or before
12:00 noon New York time on the Revolving Credit Facility Drawdown Dates make
the Revolving Credit Facility Advances available to the Borrower in an aggregate
amount not to exceed, on a pro rata basis, its Commitment for its respective
portion of the Revolving Credit Facility, provided, however, that (a) each such
Advance shall be in the minimum amount of One Hundred Thousand Dollars
($100,000) and (b) the maximum aggregate amount of all Revolving Credit Facility
Advances which may be outstanding under this Agreement is One Million Dollars
($1,000,000), as the same may be reduced pursuant to Section 5.7. Within the
limits of the Revolving Credit Facility and upon the conditions herein provided,
the Borrower may from time to time, and on as many occasions as the Borrower may
deem appropriate, borrow pursuant to this Section 3.3, repay pursuant to Section
5.2 and reborrow pursuant to this Section 3.3.
3.4 Drawdown Notice. The Borrower shall not less than three (3) Banking Days
before any Drawdown Date serve a notice (a "Drawdown Notice") on the Agent,
substantially in the form set out in Exhibit 15 or in such other form as the
Agent may agree, which notice shall (a) be in writing addressed to the Agent,
(b) be effective upon receipt by the Agent as aforesaid, provided it is received
before 11:00 a.m. New York time (otherwise it shall be deemed to have been
received on the next Banking Day), (c) specify the Banking Day on which the
relevant Advance is to be drawn down, (d) specify the initial Interest Period,
(e) specify the disbursement instructions and (f) be irrevocable.
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3.5 Effect of Drawdown Notice. Each Drawdown Notice shall be deemed to
constitute a warranty by the Borrower that (a) the representations and
warranties stated in Section 2 (updated mutatis mutandis) are true and correct
in all material respects on the date of such Drawdown Notice and will be true
and correct in all material respects on such drawdown date as if made on such
date, and (b) that no Event of Default or any event which with the giving of
notice or lapse of time or both would constitute an Event of Default has
occurred and is continuing.
3.6 Notation of Advances. Each Revolving Credit Facility Advance made by the
Lenders to the Borrower may be evidenced by a notation of the same made by the
Agent on the grid attached to the Revolving Credit Facility Note, which
notation, absent manifest error, shall be prima facie evidence of the amount of
the relevant Advance.
4. CONDITIONS
4.1 Conditions to Restructure the Term Loan and Revolving Credit Facility. The
obligation of the Lenders to restructure the Term Loan and the Revolving Credit
Facility as provided in this Agreement is expressly subject to the satisfaction
of the following conditions precedent:
(a) the Agent shall have received the following documents in form
and substance satisfactory to the Agent and its legal advisors:
(i) copies, certified as true and complete by an officer of
each Security Party, of the resolutions of the board of
directors and, in the case of the Guarantors (other than
Marine Transport Corporation), the shareholders thereof
evidencing approval of this Agreement and the other
Financing Documents called for hereby to which such
Security Party is a party and authorizing an appropriate
officer or officers or attorney-in-fact or
attorneys-in-fact to execute the same on its behalf;
(ii) copies, certified as true and complete by an officer of
the Borrower or other party acceptable to the Agent, of
all documents evidencing any other necessary action
(including actions by such parties thereto other than
the Borrower as may be required by the Agent), approvals
or consents with respect to the Financing Documents;
(iii) copies, certified as true and complete by an officer of
the respective Security Party of the certificate of
incorporation and by-laws (or equivalent instruments)
thereof;
(iv) a certificate of the Secretary of the Marine Transport
Corporation certifying that it legally and beneficially,
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directly or indirectly, owns all of the issued and
outstanding shares of the capital stock of each of the
Borrower and the other Guarantors, in each case, free
and clear of any liens, claims, pledges or other
encumbrances;
(v) a certificate of the Secretary of Marine Car Carriers
(Del) certifying that it legally and beneficially owns
fifty percent (50%) of the issued and outstanding shares
of Marine Car Carriers (MI), free and clear of any
liens, claims, pledges or other encumbrances whatsoever
except for a pledge in favor of the Agent;
(vi) certificate of the Secretary of each Security Party
(other than Marine Transport Corporation) certifying as
to the record ownership of all of its issued and
outstanding capital stock;
(vii) certificates of the jurisdiction of incorporation of
each Security Party as to the good standing of such
corporation;
(viii) copies of each Vessel Agreement, Management Agreement,
the MCCMI Shareholders Agreement, all agreements and
other documents evidencing Permitted Indebtedness and
Permitted Liens outstanding and existing as of the date
hereof and the Acquisition Agreement each certified by
an officer of Marine Transport Corporation to be a true
and complete copy thereof;
(ix) letters, in form and substance satisfactory to the
Agent, from counsel representing the Borrower (or its
relevant Affiliate) in connection with each action, suit
or proceeding listed on Schedule 7 or in connection with
any Environmental Claim disclosed to the Agent,
regarding details of such action, suit, proceeding or
claim including a description of the nature of the
claim, and the Borrower's (or its Affiliate's) potential
liabilities and an opinion as to the likely outcome of
the relevant matter; and
(x) a pro forma consolidated balance sheet for Marine
Transport Corporation, certified to be true and correct
by the chief financial officer of such Guarantor,
demonstrating that, as of the date hereof and after
giving effect to the transactions contemplated hereby
and by the Related Credit Agreement and the Acquisition
Agreement, such Guarantor has Unrestricted Cash and Cash
Equivalents in an amount at least equal to Two Million
Dollars ($2,000,000) (for
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purposes of determining compliance with this condition,
Unrestricted Cash or Cash Equivalents held by Marine Car
Carriers (MI) for the benefit of Marine Car Carriers
(Del) shall be calculated on the basis of the Borrower's
share of such sums after deduction of any taxes that
would be payable (as of the time of determination) upon
the distribution and repatriation of such sums by Marine
Car Carriers (MI) to Marine Car Carriers (Del) or any of
the Affiliate of the Borrower).
(b) the Agent shall have received evidence satisfactory to it and
its legal advisors that:
(i) each of the Mortgaged Vessels is in the sole and
absolute ownership of the respective Guarantors, other
Affiliates of the Borrower as set forth in Schedules 4
and 5 or Argosy save and except for, in the case of the
Mortgaged Vessels, the respective Mortgage recorded
thereagainst and for the respective Vessel Agreements
and Related Security Documents, and duly registered in
the name of such Guarantor or such Affiliate under the
respective flag as set forth in Schedules 4 and 5;
(ii) each Vessel is classed in the highest classification and
rating for vessels of the same age and type with the
respective classification society as set forth in
Schedules 4 and 5 without any material outstanding
recommendations;
(iii) each of the Vessels is operationally seaworthy and in
every material respect fit for its intended service;
(iv) each of the Mortgaged Vessels will be insured in
accordance with the provisions of the Mortgage on her in
favor of the Agent or the Westhampton Trustee, as the
case may be, and the requirements thereof in respect of
such insurances will have been met and each of the Other
Vessels will be insured against such risks, in such
amounts and with such insurance companies as would be
required by a reasonably prudent shipowner engaged in
the same trades;
(v) each Vessel subject to a charter or other contract of
carriage constituting a Vessel Agreement has been
accepted by its respective charterer and is in service
under such Vessel Agreement; and
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(vi) that, except as provided in the Financing Documents,
there are no restrictions or limitations on the
Borrower's ability to withdraw or apply any the funds of
Marine Car Carriers (MI) held for the benefit of Marine
Car Carriers (Del) and payable to the Borrower for such
purposes as the Borrower may deem fit.
(c) the Borrower shall have duly executed and delivered:
(i) this Agreement and
(ii) the Notes;
(d) each Guarantor shall have executed and delivered:
(i) the Guaranty,
(ii) the Consent and Agreement and Account Assignment
provided at the end of this Agreement, and
(iii) Uniform Commercial Code Financing Statements for filing
in New Jersey;
(e) each Shipowning Guarantor shall have duly executed and
delivered:
(i) in the case of Existing Guarantors, its Mortgage
Amendment;
(ii) in the case of New Guarantors:
(A) the Mortgage over its Mortgaged Vessel(s),
(B) an Insurances Assignment with respect to such
Vessel(s),
(C) an Earnings Assignment with respect to such
Vessel(s),
(D) its Assignment Notices, and
(E) Uniform Commercial Code Financing Statements for
filing in New Jersey and, for Guarantors
incorporated in Delaware, Delaware;
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(f) OMI Challenger Transport shall have duly executed and delivered
the Negative Pledge:
(g) the New Guarantors which do not own a Mortgaged Vessel (other
than OMI Challenger Transport) shall have executed and delivered:
(i) its General Security Agreement, and
(ii) Uniform Commercial Code Financing Statements for filing
in New Jersey and in its jurisdiction of incorporation;
(h) Intrepid Ship Management, Inc. shall have executed and
delivered:
(i) its Assignment of Government Receivables,
(ii) its Assignment Notices, and
(iii) Uniform Commercial Code Financing Statements for filing
in New Jersey and in its jurisdiction of incorporation;
(i) Marine Transport Corporation shall have executed and delivered:
(i) its Assignment of Vessel Management Receivables;
(ii) its Assignment Notices and
(iii) Uniform Commercial Code Financing Statements for filing
in New Jersey and in its jurisdiction of incorporation;
(j) the Agent shall have received appraisals, in form and substance
satisfactory to the Agent, from two independent shipbrokers acceptable to the
Agent evidencing that the Borrower is in compliance with Section 9.3, each of
which appraisals shall be dated, and the appraisals contained therein shall be
as of a date, no earlier than ninety (90) days prior to the date hereof;
(k) the Agent shall have received a certificate of the chief
financial officer of each Guarantor (other than Marine Transport Corporation)
confirming the representations and warranties with respect to solvency set forth
in its Guaranty and containing conclusions as to the solvency of such Guarantor;
(l) the Agent shall be satisfied that no Security Party is subject
to any Environmental Claim (except as set forth on Schedule 7) which could have
a material adverse effect on the business, assets or results of operations of
any thereof;
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(m) the Agent shall have received payment in full of all fees and
expenses due to the Agent and the Lenders on or prior to the date thereof under
Section 13;
(n) the Agent shall have received evidence satisfactory to it and to
its legal advisors that, save for the liens created by the Mortgages, the
Assignments, the Related Security Agreements and the Vessel Agreements there are
no liens, charges or encumbrances of any kind whatsoever on any of the Vessels
or on their respective earnings except as permitted hereby or by any of the
Security Documents;
(o) each party which the Agent shall have required to execute a
Consent and Agreement shall have executed a Consent and Agreement, in each case,
in form and substance satisfactory to the Agent;
(p) the Westhampton Trustee shall have duly authorized, executed and
delivered any trust receipts in respect of collateral provided by the New
Guarantors owning Mortgaged Vessels under the Westhampton Indenture and shall
have duly accepted the trust in respect thereof created by the Westhampton
Indenture;
(q) all conditions precedent to the advancement of the term loan
under the Related Credit Agreement shall have been met or waived to the
satisfaction of the Lenders;
(r) the transactions contemplated by the Acquisition Agreement shall
subject only to consummation of this Agreement and the Related Credit Agreement,
have been consummated in accordance with the provisions thereof, and the legal
status and corporate structure of Marine Transport Corporation shall be
satisfactory to the Agent and its legal counsel
(s) the terms and conditions of the Permitted Indebtedness and
Permitted Liens shall be in form and substance acceptable to the Agent; and
(t) the Agent shall have received legal opinions from (i) Xxxxx X.
Xxxxx, Esq., in-house counsel for the Security Parties, (ii) Xxxx, Scholer,
Fierman, Xxxx & Handler, L.L.P., special counsel to the Security Parties (iii)
Xxxxxxx & Xxxxxxx, special counsel to the Westhampton Trustee and (iv) Xxxxxx &
Xxxxxx, special counsel to the Agent and the Lenders, in each case in such form
as the Agent may require, as well as such other legal opinions as the Agent
shall have required as to all or any matters under the laws of the United States
of America, the States of New York, New Jersey and Texas covering the
representations and conditions which are the subjects of Sections 2 and 4.1.
4.2 Further Conditions Precedent. The obligation of the Lenders to enter into
this Agreement or to make any Advance available to the Borrower shall be
expressly and separately from the foregoing conditional upon, as of the date
hereof and at each Drawdown Date:
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(a) the Agent having received the Drawdown Notice in accordance with
the terms of Section 3.4;
(b) the representations stated in Section 2 (updated mutatis
mutandis to such date) being true and correct as if made on that date;
(c) no Event of Default having occurred and being continuing and no
event having occurred and being continuing which, with the giving of notice or
lapse of time, or both, would constitute such an Event of Default;
(d) the Agent being satisfied that no change in any applicable laws,
regulations, rules or in the interpretation thereof shall have occurred which
make it unlawful for the Borrower or any other of the parties thereto to make
any payment as required under the terms of the Financing Documents or any of
them; and
(e) there having been no material adverse change in the financial
condition of the Security Parties taken as a whole since the date hereof.
4.3 Satisfaction after Drawdown. Without prejudice to any of the terms and
conditions of this Agreement, in the event the Lenders, in their sole
discretion, makes any Advance prior to the satisfaction of all or any of the
conditions precedent set forth in Sections 4.1 and 4.2, the Borrower hereby
covenants and undertakes to satisfy or procure the satisfaction of such
condition or conditions within fourteen (14) days after the relevant Drawdown
Date (or such longer period as the Lenders, in their sole discretion, may
agree).
4.4 Breakfunding Costs. In the event that, on any date specified for the making
of an Advance in any Drawdown Notice, the Lenders shall not be required under
this Agreement to make such advance available under this Agreement, the Borrower
shall indemnify and hold the Lenders fully harmless against any losses which the
Lenders or any thereof may sustain as a result of borrowing or agreeing to
borrow funds to meet the drawdown requirement of the Borrower and the
certificate of the relevant Lender(s) shall, absent manifest error, be
conclusive and binding on the Borrower as to the extent of any such losses.
5. REPAYMENT, PREPAYMENT AND REDUCTION OF FACILITIES.
5.1 Repayment of Term Loan. The Borrower shall repay the principal of the Term
Loan in twenty (20) quarterly installments in Dollars in freely available-same
day funds on the Term Loan Payment Dates, the first four (4) installments shall
each be in the principal amount of Two Hundred Fifty Thousand Dollars
($250,000), the next fifteen (15) of which shall be in the principal amount of
Four Hundred Thirteen Thousand Three Hundred Twelve and 50/100 Dollars
($413,312.50) and twentieth such installment shall be in the amount necessary to
repay the Term Loan in full.
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5.2 Revolving Credit Facility. Subject to the provisions of Section 3.3, any
outstanding Revolving Credit Facility Advances (a) may be repaid (together with
any and all actual costs or expenses incurred by any Lender as the result of any
breaking of funding (as certified by the relevant Lender, which certification
shall, absent any manifest error, be conclusive and binding on the Borrower) on
any Banking Day (in Dollars in freely available-same day funds equal to or
exceeding One Hundred Thousand Dollars ($100,000), each such repayment to be in
an integral multiple of One Hundred Thousand Dollars ($100,000)) and (b) must be
repaid (i) on the last date of then prevailing Interest Period in respect of
such Advance and (ii) on or before the Final Payment Date.
5.3 Voluntary Prepayment of Term Loan. The Borrower may prepay any Term Loan
Advance on any Banking Day, in whole or in part, without penalty or premium (in
Dollars in freely available-same day funds equal to or exceeding One Hundred
Thousand Dollars ($100,000), each such repayment to be in an integral multiple
of One Hundred Thousand Dollars ($100,000)), on any Banking Day upon giving the
Agent not less than five (5) Banking Days prior written notice (which notice
shall be irrevocable and shall specify the amount and date of prepayment).
5.4 Mandatory Prepayment of Term Loan. Upon the sale, disposition or Total Loss
of any Vessel or any other asset (having a fair market value equal or exceeding
One Hundred Thousand Dollars ($100,000) directly or indirectly owned by the
Borrower, the Borrower shall prepay the Term Loan, in part and without penalty,
in amount equal to the proceeds of the sale, disposition or insurance net of
taxes payable as a result of any such sale or disposition.
5.5 Prepay Term Loans Pro Rata. Any prepayment made hereunder (including,
without limitation, those made pursuant to Sections 5.3 and 5.4, but excluding a
prepayment under Section 9.3) or under the Related Credit Agreement shall be
applied against the Term Loan and the Related Term Loan, pro rata.
5.6 Application of Prepayments. Any prepayment of the Term Loan made hereunder
(including, without limitation, those made pursuant to Sections 5.3, 5.4 and
9.3), shall be subject to the condition that:
(a) any partial prepayment made shall be applied in or towards
satisfaction of the repayment installments of the Term Loan in inverse order of
maturity;
(b) any amounts prepaid shall not be available for re-borrowing; and
(c) on the date of prepayment all accrued interest to the date of
such prepayment shall be paid in full with respect to the portion of the
principal being prepaid, together with any and all actual costs or expenses
incurred by any Lender as the result of any breaking of funding (as certified by
the relevant Lender, which certification shall, absent any manifest error, be
conclusive and binding on the Borrower).
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5.7 Voluntary Reduction of Revolving Credit Facility. The Borrower shall have
the right, at any time and from time to time, upon giving to the Agent not less
than five (5) Banking Days prior written notice (which notice shall be
irrevocable) to terminate in whole, or reduce the available unused portion of,
the Revolving Credit Facility; provided, however, that each partial reduction
shall be equal to or shall exceed One Hundred Thousand Dollars ($100,000) and
shall be an integral multiple of One Hundred Thousand Dollars ($100,000). Upon
any reduction of the Revolving Credit Facility as provided in this Section, each
Lender's Commitment to make Revolving Credit Facility Advances shall be reduced
pro rata.
6. INTEREST AND RATE
6.1 Term Loan Applicable Rate and Default Rate. The Term Loan Balance shall bear
interest at the Term Loan Applicable Rate which shall be the rate per annum
which is equal to the aggregate of (a) LIBOR for the applicable Interest Period
(determined in accordance with Section 6.5) plus (b) the then prevailing Margin.
Any principal payment with respect to the Term Loan not paid when due, whether
on a Term Loan Payment Date or by acceleration, shall bear interest thereafter
at a rate per annum of two percent (2.0%) over the Term Loan Applicable Rate in
effect with respect to such payment at the time of such default (the "Term Loan
Default Rate").
6.2 Revolving Credit Facility Applicable Rate and Default Rate. The Revolving
Credit Facility Balance shall bear interest at the Revolving Credit Facility
Applicable Rate which shall be equal to the aggregate of (a) LIBOR for the
applicable Interest Period (determined in accordance with Section 6.5) plus (b)
the then prevailing Margin plus (c) one quarter of one percent (0.25%) per
annum. Any principal payment with respect to the Revolving Credit Facility not
paid when due, whether by acceleration or otherwise, shall bear interest
thereafter at a rate per annum of two percent (2.0%) over the Revolving Credit
Facility Applicable Rate in effect with respect to such payment at the time of
such default (the "Revolving Credit Facility Default Rate").
6.3 Determination of Applicable Margin. The Margin shall be determined by the
Agent two (2) Banking Days prior to the first day of the relevant Interest
Period. Prior to the day falling two (2) Banking Days after the date on which
Marine Transport Corporation delivers its first quarterly financial report to
the Agent in accordance with Section 9.1(A)(iv), the Margin shall be equal to
one and three quarters of one percent (1.75%) per annum. Thereafter, the Margin
shall be based upon the then prevailing ratio of Marine Transport Corporation's
Total Debt to EBITDA, as determined in accordance with Section 9.1(A)(xvii) as
follows:
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Applicable Margin Total Debt to EBITDA
----------------- --------------------
2.25% > 3.0x
2.00% <=3.0x but >2.5x
1.75% <=2.5x but >2.0x
1.50% <=2.0x but >=1.0x
1.25% <1.0x
6.4 Determination of LIBOR. LIBOR shall be determined by the Agent two (2)
Banking Days prior to the first day of the relevant Interest Period and together
with any and all actual costs or expenses incurred by any Lender as the result
of any breaking of funding (as certified by the relevant Lender, which
certification shall, absent any manifest error, be conclusive and binding on the
Borrower). The Borrower shall be promptly notified in writing of such
determination of the Term Loan Applicable Rate and the Revolving Credit Facility
Applicable Rate, as the case may be. Absent manifest error, such determination
shall be conclusive and binding upon the Borrower.
6.5 Interest Periods. For purposes of funding any Advance, the Borrower may
select Interest Periods of one (1), two (2), three (3) or six (6) months (or for
such longer periods as the Lenders may, in their sole discretion agree),
provided, however, that (a) at all times the Borrower must select an Interest
Period for a portion of each Advance so that sufficient deposits shall mature on
each Payment Date to cover the principal installments due on such dates and (b)
no more than two (2) Interest Periods may be running simultaneously for the
entire Term Loan Balance and no more than three (3) Interest Periods may be
running at any one time for the entire Revolving Credit Facility Balance. No
Interest Period may extend beyond the Final Payment Date. The Borrower shall
give the Agent an Interest Notice specifying the Interest Period selected at
least three (3) Banking Days prior to the end of any then existing Interest
Period. If at the end of any then existing Interest Period the Borrower fails to
give an Interest Notice, the relevant Interest Period shall be three (3) months.
The Borrower's right to select an Interest Period shall be subject to the
restriction that no selection of an Interest Period shall be effective unless
the Lenders are satisfied that the necessary funds will be available to the
Lenders for such period and that no Event of Default or event which, with the
giving of notice or lapse of time, or both, would constitute an Event of Default
shall have occurred and be continuing.
6.6 Interest Payments. The Borrower agrees to pay interest on each Advance on
the last day of each Interest Period applicable to such Advance and at such
other times as interest is required to be paid by each Lender on the deposits
acquired thereby to fund the relevant Advance, or any portion thereof, as the
case may be, and, in the event any Interest Period shall extend beyond three (3)
months, three (3) months after the commencement of such Interest Period and each
three (3) month anniversary thereafter until the end of the Interest Period; and
6.7 Payment on Banking Day. If interest would, under Section 6.6, be payable on
a day which is not a Banking Day, it shall then be payable on the next following
Banking
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Day, unless such next following Banking Day falls in the following month in
which case it shall be payable on the Banking Day immediately preceding the day
on which such interest would otherwise be payable.
6.8 Calculation of Interest. All interest shall accrue and be calculated on the
actual number of days elapsed and on the basis of a three hundred sixty (360)
day year.
7. PAYMENTS
7.1 Place of Payments, No Set Off. All payments to be made hereunder by the
Borrower shall be made to the Agent, not later than 11 a.m. New York time (any
payment received after 11 a.m. New York time shall be deemed to have been paid
on the next Banking Day) on the due date of such payment, at its office located
at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or to such other office of the
Agent as the Agent may direct, without set-off or counterclaim and free from,
clear of, and without deduction for, any Taxes, provided, however, that if the
Borrower shall at any time be compelled by law to withhold or deduct any Taxes
from any amounts payable to the Agent or the Lenders hereunder, then the
Borrower shall pay such additional amounts in Dollars as may be necessary in
order that the net amounts received after any such withholding or deduction
shall equal the amounts which would have been received if such withholding or
deduction were not required and, in the event any withholding or deduction is
made, whether for Taxes or otherwise, the Borrower shall promptly send to the
Agent and the Lenders such documentary evidence for such withholding or
deduction as may be required from time to time by the Agent or the relevant
Lender, as the case may be.
7.2 Tax Credits. If any Lender obtains the benefit of a credit against the
liability thereof for federal income taxes imposed by any taxing authority for
all or part of the Taxes as to which the Borrower has paid additional amounts as
aforesaid (and such Lender agrees to use its best efforts to obtain the benefit
of any such credit which may be available to it, provided it has knowledge that
such credit is in fact available to it), then such Lender shall reimburse the
Borrower for the amount of the credit so obtained. Each Lender agrees that in
the event that Taxes are imposed on account of the situs of its loans hereunder,
such Lender, upon acquiring knowledge of such event, shall, if commercially
reasonable, shift such loans on its books to another office of such Lender so as
to avoid the imposition of such Taxes.
8. EVENTS OF DEFAULT
8.1 In the event that any of the following events shall occur and be continuing:
(a) Non-Payment of Principal. Any principal of the Term Loan or the
Revolving Credit Facility is not paid on the due date; or
(b) Non-Payment of Interest or Other Amounts. Any interest on the
Term Loan, the Revolving Credit Facility or any other amount becoming payable to
the Agent, the Lenders or the Westhampton Trustee under any Financing Document
is not
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paid on the due date or date of demand (as the case may be), and such default
continues unremedied for a period of five (5) Banking Days; or
(c) Representations. Any representation, warranty or other statement
made by any Security Party in any Financing Document or in any other instrument,
document or other agreement delivered in connection with any thereof proves to
have been untrue or misleading in any material respect as of the date when made
or confirmed; or
(d) Covenants. Any Security Party defaults in the due and punctual
observance or performance of any other term, covenant or agreement contained in
any Financing Document or in any other instrument, document or other agreement
delivered in connection herewith or therewith, or it becomes impossible or
unlawful for any Security Party to fulfill any such term, covenant or agreement
or there occurs any other event which constitutes a default under any Financing
Document, in each case other than an Event of Default referred to elsewhere in
this Section 8.1, and such default, impossibility and/or unlawfulness, in the
reasonable opinion of the Majority Lenders, would be likely to have a material
adverse effect on the rights of the Lenders, the Agent or the Westhampton
Trustee under any Financing Document or on the rights of the Lenders, the Agent
or the Westhampton Trustee to enforce any Financing Document, and continues
unremedied or unchanged, as the case may be, for a period of thirty (30) days;
or
(e) Indebtedness. Any Security Party, Marine Car Carriers (MI) or
any wholly owned subsidiary of any such party shall default in the payment when
due (subject to any applicable grace period) of any Indebtedness in an amount in
excess of Two Hundred Fifty Thousand Dollars ($250,000) or such Indebtedness is,
or by reason of such default is subject to being, accelerated or any party
becomes entitled to enforce the security for any such Indebtedness and such
party takes steps to enforce the same, unless such default or enforcement is
being contested in good faith and by appropriate proceedings or other acts and
the Security Party, Marine Car Carriers (MI) or subsidiary, as the case may be,
shall set side on its books adequate reserves with respect thereto; or
(f) Change of Control; Ownership or Management of Other Security
Parties. There is a change of control of any Security Party and the Lenders have
not prior thereto consented in writing to such change. As used herein, "change
of control" means (i) with respect to Marine Transport Corporation, (A) any
"person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the "Exchange Act")) is or becomes the beneficial owner
(as defined in Rules 13d-3 and 13d-5 promulgated pursuant to the Exchange Act),
directly or indirectly, of more than fifty percent (50%) of the total voting
power of the voting stock of Marine Transport Corporation or (B) the Board of
Directors of Marine Transport Corporation ceases to consist of a majority of the
existing directors or directors elected by the existing directors (as used
herein, "existing director" means each of the Directors of Marine Transport
Corporation as of the date immediately following consummation of the
transactions contemplated by the Acquisition Agreement) or (ii), with respect to
any other Security
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Party, any material change in the beneficial stock ownership, voting control or
senior management of any of the Security Parties; or
(g) US Citizenship. Any Security Party owning a United States flag
Vessel ceases to be a United States of America citizen within the meaning of
Section 2 of the United States Shipping Act of 1916, as amended, qualified to
operate vessels in the coastwise trade; or
(h) Bankruptcy. Any Security Party or Marine Car Carriers (MI)
commences any proceeding under any reorganization, arrangement or readjustment
of debt, dissolution, winding up, adjustment, composition, bankruptcy or
liquidation law or statute of any jurisdiction, whether now or hereafter in
effect ("Proceeding"), or there is commenced against any thereof any Proceeding
and such Proceeding remains undismissed or unstayed for a period of thirty (30)
days or any receiver, trustee, liquidator or sequestrator of, or for, any
thereof or any substantial portion of the property of any thereof is appointed
and is not discharged within a period of thirty (30) days or any thereof by any
act indicates consent to or approval of or acquiescence in any Proceeding or the
appointment of any receiver, trustee, liquidator or sequestrator of, or for,
itself or of, or for, any substantial portion of its property; or
(i) Termination of Operations; Sale of Assets. Without the Agent's
prior written consent, any Security Party ceases its operations or sells or
otherwise disposes of all or substantially all of its assets or all or
substantially all of the assets of the any Security Party are seized or
otherwise appropriated; or
(j) Judgments. Any judgment or order is made which would render
ineffective or invalid any Financing Documents; or
(k) Inability to Pay Debts. Any Security Party or Marine Car
Carriers (MI) is unable to pay or admits its inability to pay its debts as they
fall due or a moratorium shall be declared in respect of any material
indebtedness of any Security Party or Marine Car Carriers (MI); or
(l) Change in Financial Position. Any change in the financial
position of the Security Parties (taken as a whole) which, in the reasonable
opinion of the Majority Lenders, shall have a material adverse effect on the
ability of any Security Parties to perform its respective material obligations
under any Financing Document; or
(m) Relevant Contracts. Any of the Relevant Contracts or the MCCMI
Shareholders Agreement is terminated or is materially amended or modified
without the prior written consent of the Majority Lenders, or any party to a
Relevant Contract defaults or ceases to perform under such agreement for any
reason whatsoever and, with regard to any such termination, default or
nonperformance of a Relevant Contract, the relevant Vessel shall not be engaged
in an alternative employment, acceptable to the Lenders, under a contract,
acceptable to the Lenders, within ninety (90) days of such termination, default
or nonperformance; or
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(n) Key Management Agreements. Any of the Key Management Agreements
(including any extensions or renewals thereof) is terminated prior to its stated
termination date or is materially amended or modified without the prior written
consent of the Majority Lenders, or any party to a Key Management Agreement
defaults or ceases to perform under such agreement for any reason whatsoever
and, as a result of such default or non-performance, the obligor under such
agreement ceases to pay or be obligated to pay to the relevant Security Party,
as the case may be, amounts payable by such obligor under such agreement; or
(o) Related Credit Agreement, OMI COLUMBIA Loan Documents and
Mortgage Securing OMI Debt. An "Event of Default" (as defined in any of the
Related Credit Agreement, the OMI COLUMBIA Loan Documents or the Mortgage
Securing the OMI Debt) shall have occurred and be continuing
then the Lenders' obligation to make any Advances available shall cease and the
Lenders may, by notice to the Borrower, declare the entire unpaid balance of the
Term Loan, accrued interest, the entire Revolving Credit Facility Balance,
accrued interest, and any other sums payable by the Borrower hereunder and under
any other Financing Document due and payable, whereupon, the same shall
forthwith be due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived; provided that upon the
occurrence of an event specified in subsections (h) or (k) of this Section 8.1,
the Notes shall be immediately due and payable without declaration or other
notice to the Borrower. In such event, the Lenders may proceed to protect and
enforce their rights by action at law, suit in equity or in admiralty or other
appropriate proceeding, whether for specific performance of any covenant
contained in any Financing Document, or in aid of the exercise of any power
granted in any thereof, or the Lenders may proceed to enforce the payment of the
Notes or to enforce any other legal or equitable right of the Lenders, or
proceed to take any action authorized or permitted under the terms of any of the
Security Documents or by applicable law for the collection of all sums due, or
so declared due, on the Notes, including, without limitation, the right to
appropriate and hold, or apply (directly, by way of set-off or otherwise) to the
payment of the obligations of the Borrower to the Lenders, the Agent or the
Westhampton Trustee under any Financing Document (whether or not then due) all
moneys and other amounts of the Borrower then or thereafter in possession of any
Lender, the Agent or the Westhampton Trustee, the balance of any deposit account
(demand or time, matured or unmatured) of the Borrower then or thereafter with
any Lender, the Agent or the Westhampton Trustee and every other claim of the
Borrower then or thereafter against any Lender, the Agent or the Westhampton
Trustee.
8.2 Indemnification. The Borrower agrees to, and shall, indemnify and hold the
Lenders, the Agent and the Westhampton Trustee harmless against any loss
(excluding any consequential damages), as well as against any reasonable costs
or expenses (including reasonable legal fees and expenses), which the Lenders,
the Agent or the Westhampton Trustee sustains or incurs as a consequence of any
default in payment of the principal amount of the Term Loan, the Revolving
Credit Facility, interest accrued
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thereon or any other amount payable under any Financing Document, including, but
not limited to, all actual losses incurred in liquidating or re-employing fixed
deposits made by third parties or funds acquired to effect or maintain the Term
Loan and/or the Revolving Credit Facility and/or any portion of either thereof.
The certification of each Lender, the Agent or the Westhampton Trustee of such
costs and expenses shall, absent any manifest error, be conclusive and binding
on the Borrower.
8.3 Application of Moneys. Except as otherwise provided in any Security
Document, all moneys received by the Lenders, the Agent or the Westhampton
Trustee under or pursuant to this Agreement, any Notes, any Guaranty or any of
the Security Documents after the occurrence and continuation of any Event of
Default (unless cured to the satisfaction of the Lenders) shall be applied by
the Lenders in the following manner:
(a) first, in or towards the payment or reimbursement of any
expenses or liabilities incurred by the Lenders, the Agent or the Westhampton
Trustee in connection with the ascertainment, protection or enforcement of its
rights and remedies under any Financing Documents,
(b) second, in or towards payment of any interest owing on the Term
Loan and the Revolving Credit Facility,
(c) third, in or towards repayment of principal owing in respect of
the Term Loan and the Revolving Credit Facility,
(d) fourth, in or towards payment of all other sums which may be
owing to the Lenders, the Agent or the Westhampton Trustee under any Financing
Document, and
(e) fifth, the surplus (if any) shall be paid to the Borrower or to
whosoever else may be entitled thereto.
9. COVENANTS
9.1 The Borrower and, by their execution of the consent and agreement and
assignment of account provided below, each of the Guarantors hereby covenants
and undertakes with the Lenders and the Agent that, from the date hereof and so
long as any principal, interest or other moneys are owing in respect of the Term
Loan, the Revolving Credit Facility or are otherwise owing under any Financing
Document:
(A) it will, and will procure that each other Security Party will:
(i) Performance of Agreements. Duly perform and observe, and
procure the observance and performance by all other parties thereto (other than
the Lenders, the Agent and the Westhampton Trustee) of, the terms of the
Financing Documents;
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(ii) Notice of Default, Litigation and Adverse Change. Promptly
upon obtaining knowledge thereof, inform the Lenders of the occurrence of any
(a) Event of Default or of any event which, with the giving of notice or lapse
of time, or both, would constitute an Event of Default, (b) their respective
litigation or governmental proceeding pending or threatened against it or
against any of the Security Parties or Marine Car Carriers (MI) which could
reasonably be expected to have a material adverse effect on the business,
assets, operations, property or financial condition of any thereof, and (c)
other event or condition which is reasonably likely to have a material adverse
effect on its ability, or the ability of the Security Parties as a group, to
perform their respective obligations under any Financing Document;
(iii) Obtain Consents. Without prejudice to Section 2.1(b) and this
Section 9.1, obtain every consent and do all other acts and things which may
from time to time be necessary or advisable for the continued due performance of
all its and the other Security Parties' respective obligations under the
Financing Documents;
(iv) Financial Information. At the expense of the Borrower,
deliver to the Agent:
(a) as soon as available but not later than ninety (90) days
after the end of each fiscal year of Marine Transport
Corporation, a complete copy of the 10K report of Marine
Transport Corporation filed with the United States
Securities and Exchange Commission (including audited
annual financial statements of Marine Transport
Corporation together with a report thereon by an
Acceptable Accounting Firm), which shall be prepared by
Marine Transport Corporation and certified by the chief
financial officer of Marine Transport Corporation
together with a Compliance Certificate;
(b) as soon as available but not later than forty-five (45)
days after the end of each quarter of each fiscal year
of Marine Transport Corporation, a copy of the 10Q
report of Marine Transport Corporation filed with the
United States Securities and Exchange Commission which
shall be prepared by Marine Transport Corporation and
certified by the chief financial officer of Marine
Transport Corporation, together, in each instance, with
a Compliance Certificate of such chief financial officer
in such form as the Lender may reasonably require;
(c) as soon as available, copies of all 8K reports filed by
Marine Transport Corporation with the United States
Securities and Exchange Commission;
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(d) as soon as available but not later than thirty (30) days
after the end of each month of each fiscal year of
Marine Transport Corporation, unaudited monthly
operating statements showing actual versus budgeted cash
flow (itemized for each Vessel, Management Agreement and
Vessel Agreement), accounts receivable and accounts
payable balances and cash position for Marine Transport
Corporation and its Subsidiaries, certified to be true
and complete by the Chief Financial Officer of Marine
Transport Corporation; and
(e) such other statements, lists of assets and accounts,
budgets, forecasts, reports and other financial
information with respect to its business as the Agent
may from time to time reasonably request, certified to
be true and complete by the Chief Financial Officer of
Marine Transport Corporation;
(v) U.S. Citizenship; Qualification to Own Foreign Flag Vessels.
Continue to be, and cause each other Security Party or other Affiliate of the
Borrower owning a United States flag Vessel to continue to be, a United States
citizen within the meaning of Section 2 of the United States Shipping Act, 1916,
as amended (46 U.S.C. ss.802), qualified to own and operate vessels in the
coastwise trade of the United States of America and to cause each other Security
Party or other Affiliate of the Borrower which is the registered owner of a
Vessel registered under a flag other than the United States of America to
continue to be duly qualified under the laws of such flag to be the registered
owner and operator of a Vessel registered under such flag;
(vi) Corporate Existence. Do or cause to be done, and procure that
each Security Party shall do or cause to be done, all things necessary to
preserve and keep in full force and effect its corporate existence, and all
licenses, franchises, permits and assets necessary to the conduct of its
business;
(vii) Books and Records. Keep, and cause each other Security Party
to keep, proper books of record and account into which full and correct entries
shall be made in accordance with GAAP throughout the Security Period;
(viii) Taxes and Assessments. Pay and discharge, and cause each
other Security Party to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or property
prior to the date upon which penalties attach thereto; provided, however, that
it shall not be required to pay and discharge, or cause to be paid and
discharged, any such tax, assessment, charge or levy so long as (a) the legality
thereof shall be contested in good faith and by appropriate proceedings or other
acts and it shall set aside on its books adequate reserves with respect thereto
or (b) where such failure to pay or discharge is not reasonably likely to,
individually or in the aggregate, have a material adverse effect on the
business, prospects
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or financial condition of the Marine Transport Corporation and its Subsidiaries
taken as a whole;
(ix) Inspection. Allow, and cause each other Security Party to
allow, any representative or representatives designated by any Lender, subject
to applicable laws and regulations, to visit and inspect any of its properties,
and, on request, to examine its books of account, records, reports and other
papers and to discuss its affairs, finances and accounts with its officers, all
at such reasonable times and as often as any Lender may reasonably request;
(x) Compliance with Statutes, etc. Do or cause to be done, and
cause each other Security Party to do and cause to be done, all things necessary
to comply with all material laws, and the rules and regulations thereunder,
applicable to the Borrower or such other Security Party, including, without
limitation, those laws, rules and regulations relating to employee benefit plans
and environmental matters;
(xi) Environmental Matters. Promptly upon the occurrence of any of
the following conditions, provide to the Agent a certificate of the chief
executive officer thereof, specifying in detail the nature of such condition and
its proposed response or the response of its Environmental Affiliate: (a) its
receipt or the receipt by any other Security Party or any Environmental
Affiliate of the Borrower or any other Security Party of any written
communication whatsoever that alleges that such person is not in compliance with
any applicable environmental law or environmental approval, if such
noncompliance could reasonably be expected to have a material adverse effect on
the business, assets, operations, property or financial condition of the
Borrower or any other Security Party, (b) knowledge by it, or by any other
Security Party or any Environmental Affiliate of the Borrower or any other
Security Party that there exists any Environmental Claim pending or threatened
against any such person, which could reasonably be expected to have a material
adverse effect on the business, assets or operations, property or financial
condition of the Borrower or any other Security Party, or (c) any release,
emission, discharge or disposal of any material that could form the basis of any
Environmental Claim against it, any other Security Party or against any
Environmental Affiliate of the Borrower or any other Security Party, if such
Environmental Claim could reasonably be expected to have a material adverse
effect on the business, assets or operations, property or financial condition of
the Borrower or any other Security Party. Upon the written request by the Agent,
it will submit to the Agent at reasonable intervals, a report providing an
update of the status of any issue or claim identified in any notice or
certificate required pursuant to this subsection;
(xii) ERISA. Forthwith upon learning of the occurrence of any
material liability of the any Security Party or any ERISA Affiliate pursuant to
ERISA in connection with the termination of any Plan or withdrawal or partial
withdrawal of any multi-employer plan (as defined in ERISA) or of a failure to
satisfy the minimum funding standards of Section 412 of the Code or Part 3 of
Title I of ERISA by any Plan for which any Security Party or any ERISA Affiliate
is plan administrator (as defined in ERISA), furnish or cause to be furnished to
the Agent written notice thereof;
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(xiii) Vessel Management. Cause each of the Vessels to be managed by
Marine Transport Corporation, by a wholly-owned subsidiary thereof or by third
party manager reasonably acceptable to the Agent and procure that no agreements
providing or governing the management of such vessels shall be amended or
modified without the prior written consent of the Agent unless (in the case of
management agreements other than Key Management Agreements) such amendment or
modification would not, in the reasonable opinion of the Agent, adversely affect
the economic interests of the Borrower or any other Security Party thereunder;
(xiv) Cash. Maintain at all times on a consolidated basis, readily
available Unrestricted Cash or Cash Equivalents of not less than the greater of
(a) Two Million Dollars ($2,000,000) and (b) ten percent (10%) of the Total Debt
of Marine Transport Corporation (for purposes of determining compliance with
this covenant, Unrestricted Cash or Cash Equivalents held by Marine Car Carriers
(MI) for the benefit of Marine Car Carriers (Del) shall be calculated on the
basis of the Borrower's share of such sums after deduction of any taxes that
would be payable (as of the time of determination) consequent upon the
distribution and repatriation of such sums by Marine Car Carriers (MI) to Marine
Car Carriers (Del));
(xv) Working Capital. Maintain at all times on a consolidated
basis, a positive working capital position (for purposes of determining
compliance with this covenant, Unrestricted Cash or Cash Equivalents held by
Marine Car Carriers (MI) shall be calculated on the basis of the Borrower's
share of such sums after deduction of any taxes that would be payable (as of the
time of determination) consequent upon the distribution and repatriation of such
sums by Marine Car Carriers (MI) to Marine Car Carriers (Del));
(xvi) Debt Service Coverage Ratio. Maintain on a consolidated
basis, a ratio of EBITDA to scheduled payments of principal and interest in
respect of consolidated Indebtedness of not less than, during the period
commencing from the date hereof and ending on the second anniversary of the date
hereof, 1.25 to 1.0, and, thereafter, 1.5 to 1.0, such ratio to be determined
quarterly based on the scheduled principal and interest (assuming the then
prevailing interest rates shall remain in effect for the next twelve (12)
months) payments payable over the next twelve (12) month period;
(xvii) Total Debt to EBITDA. Maintain on a consolidated basis, a
ratio of Total Debt to EBITDA of not greater than, (x) during the period
commencing from the date hereof and ending on the first anniversary of the date
hereof, 3.25 to 1.0, (y) during the period commencing from the first anniversary
of the date hereof and ending on the second anniversary of the date hereof, 3.0
to 1.0 and (z) thereafter, 2.5 to1.0;
(xviii) Brokerage Commissions, etc. Indemnify and hold the Lenders,
the Agent and the Westhampton Trustee harmless from any claim for any
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brokerage commission, fee, or compensation from any broker or third party
resulting from the transactions contemplated hereby;
(xix) Deposit Accounts; Assignment. Throughout the Security Period,
maintain, and procure that each Security Party shall maintain its primary
collection and revenue accounts with the Agent and shall procure, and shall
cause each Security Party to procure that, all earnings of any Vessels shall be
paid (without set-off or counterclaim) into such collection accounts. As
security for the obligations of the Borrower hereunder, the Borrower hereby
pledges, assigns and grants the Agent, on behalf of the Lenders, a security
interest in all the Borrowers' right, title and interest in and to the aforesaid
collection and disbursement accounts and consents that if an Event of Default
shall occur and so long as the same shall be continuing, all moneys held in the
said accounts and all moneys thereafter received by the Agent may be applied as
provided in Section 8.3;
(xx) Proceeds of Marine Car Carriers (MI). Promptly upon the
direct or indirect acquisition, in the aggregate, by the Borrower, the
Guarantors or any affiliate of any thereof of one hundred percent (100%) of the
equity of Marine Car Carriers (MI) or one hundred percent (100%) of the assets
thereof, grant, or procure the grant, to the Agent of a security interest in the
assets of Marine Car Carriers (MI) in form and substance satisfactory to the
Agent, it being hereby agreed by the Agent and the Lenders that, simultaneous
with the investment of the assets of Marine Car Carriers (MI) into a new joint
venture with a third party not affiliated with the Borrower or the Guarantors,
such security interest shall be released and replaced with a negative pledge in
form and substance satisfactory to the Agent;
(xxi) Year 2000 Issue. The Borrower shall take, and shall cause each
of the Guarantors to take, all necessary action to complete in all materials
respects by September, 1999, the reprogramming of computer software, hardware
and firmware systems and equipment containing embedded microchips owned or
operated by or for the Borrower and the guarantors or used or relied upon in the
conduct of their business (including systems and equipment supplied by others or
with which such systems of the Borrower or any of the Guarantors interface)
required as a result of the Year 2000 Issue to permit the proper functioning of
such computer systems and other equipment and the testing of such systems and
equipment, as so reprogrammed. At the request of the Agent, the Borrower shall
provide, and shall cause each of the guarantors to provide, to the Agent
reasonable assurance of its compliance with the preceding sentence; and
(xxii) ISM Code Matters. (a) Procure that the relevant Operator
will, comply with, and ensure that (i) each Vessel will comply with the
requirements of the ISM Code by not later than July 1, 1998, and (ii) any
newly-acquired Vessel will comply with the requirements of the ISM Code within
six (6) months (or such shorter period as may be required by applicable law or
regulation) of its acquisition, including (but not limited to) the maintenance
and renewal of valid certificates pursuant thereto throughout the Security
Period;
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(b) Procure that any Operator will, immediately inform the
Agent if there is any threatened or actual withdrawal of
its, DOC or the SMC in respect of any Vessel; and
(c) Procure that the relevant Operator will, promptly inform
the Agent upon the issuance (i) to such Operator of a
DOC and (ii) to the relevant Vessel of an SMC; and
(xxiii) OMI COLUMBIA. Procure that promptly upon the acquisition of
ownership of OMI COLUMBIA by OMI Challenger Transport (or any other Affiliate of
the Borrower), such Guarantor shall execute and deliver a first preferred
mortgage and assignments of earnings and insurances in respect of such Vessel in
form and substance satisfactory to the Agent.
(B) The Borrower will not, and will procure that no other Security
Party will, without the prior written consent of the Agent:
(i) Liens. Create, assume or permit to exist, any mortgage,
pledge, lien, charge, encumbrance or any security interest whatsoever upon any
of such party's property or other assets, real or personal, tangible or
intangible, whether now owned or hereafter acquired except:
(a) liens for taxes not yet payable for which adequate
reserves have been maintained;
(b) the Financing Documents and other liens granted in
connection herewith in favor of the Lenders, the Agent
or the Westhampton Trustee, as the case may be;
(c) liens, charges and encumbrances against their respective
Vessels except those of the type and amounts permitted
to exist under the terms of the Mortgages;
(d) pledges of certificates of deposit or other cash
collateral securing any Security Party's reimbursement
obligations in connection with letters of credit now or
hereafter issued for the account of such Security Party
in connection with the establishment of the financial
responsibility of the Security Parties under 33 C.F.R.
Part 130 or 46 C.F.R. Part 540, as the case may be, as
the same may be amended or replaced;
(e) pledges or deposits to secure obligations under
workmen's compensation laws or similar legislation,
deposits to secure public or statutory obligations,
warehousemen's or other like liens, or deposits to
obtain the release of such liens and deposits to secure
surety, appeal or customs bonds on
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which any of the Security Parties is the principal, as
to all of the foregoing, only to the extent arising and
continuing in the ordinary course of business;
(f) liens on assets acquired with Permitted Third Party Debt
and securing only the Permitted Third Party Debt
incurred to acquire such assets;
(g) the Mortgages Securing the OMI Debt (and related
assignments of marine insurances for the Vessels subject
to such mortgages);
(h) other liens, charges and encumbrances incidental to the
conduct of the business of each such party, the
ownership of any such party's property and assets and
which do not in the aggregate materially detract from
the value of each such party's property or assets or
materially impair the use thereof in the operation of
its business
(items (a) through (h) are hereinafter collectively referred to as "Permitted
Liens");
(ii) Loans, Advances and Investments. Make any loans or advances
to, or any investments in any Person, firm, corporation, joint venture or other
entity (including, without limitation, any loan or advance to any officer,
director, stockholder, employee or customer of any company affiliated with any
Security Party) except for advances and investments in the ordinary course of
its business and loans or advances to any Security Party;
(iii) Indebtedness. Incur any Indebtedness except Permitted
Indebtedness;
(iv) Permitted Third Party Debt. Incur any Permitted Third Party
Debt, unless in the case of any such indebtedness other than that supporting
MARAD vessel management contracts;
(a) the Borrower and the Security Parties are in compliance
with their covenants set forth in this Agreement,
(b) no Event of Default (or any event or condition which,
with the giving of notice or passage of time or both,
would constitute an Event of Default) shall have
occurred or will occur and be continuing before or after
the incurrence of such Permitted Third Party Debt,
(c) the Borrower demonstrates to the satisfaction of the
Agent, in its sole discretion, that the ratio of (1)
projected EBITDA
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to be generated by the particular asset to be acquired
with such Permitted Third Party Debt to (2) projected
scheduled payments of interest and principal for such
Permitted Third Party Debt shall be at least 1.0 to 1.0
over the entire term of such Permitted Third Party Debt
and
(d) the Borrower demonstrates to the satisfaction of the
Agent, in its sole discretion, that following the
incurrence of such Permitted Third Party Debt, the
Borrower and the Guarantors shall be in compliance with
the financial covenants set forth in Sections
9.1(A)(xiv), (xv), (xvi) and (xvii) (for purposes of the
calculations required by this clause (z), (1) EBITDA
shall include the projected EBITDA to be generated by
the particular asset to be acquired with such Permitted
Third Party Debt, (2) Total Debt shall include the
Permitted Third Party Debt to be incurred and (3)
scheduled payments of interest and principal on Total
Debt shall include projected scheduled payments of
interest and principal for such Permitted Third Party
Debt;
(v) Guarantees, etc. Assume, guarantee or (other than in the
ordinary course of its business) endorse or otherwise become or remain liable,
in connection with any obligation of any person, firm, company or other entity
except for guarantees, in connection herewith, in favor of the Lenders, the
Agent or the Westhampton Trustee or guarantees of Permitted Indebtedness;
(vi) Changes in Business. Change the nature of its business or
engage in any businesses other than domestic and international marine
transportation;
(vii) Use of Corporate Funds. Pay out any funds to any company or
Person except (a) as contemplated by the Acquisition Agreement (b) in the
ordinary course of business in connection with the management of the business of
the Security Parties, including the operation and/or repair of the Vessels and
other vessels owned, managed or operated by such parties and (c) the servicing
of Permitted Indebtedness provided, however, it shall not prepay any such
Permitted Indebtedness (excluding the Indebtedness hereunder and under the
Related Credit Agreement);
(viii) Issuance of Shares. Permit any subsidiaries to issue or
dispose of any shares of its own capital stock to any Person;
(ix) Sale of Shares. Sell, assign, transfer, pledge or otherwise
convey or dispose of any of the shares of the capital stock of any Security
Parties or Marine Car Carriers (MI);
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(x) Sale of Assets. Sell, or otherwise dispose of, any Vessel,
any shares in any subsidiary corporation or any other asset which represents all
or a substantial portion of its assets taken as a whole; or
(xi) Capital Expenditures. Make or commit to make any capital
expenditures provided, however, that in no event shall this subsection (xi)
preclude the Borrower or any other Security Party from undertaking necessary
repairs and improvements to any Vessel the cost of which, for accounting
purposes, is treated by the Borrower as a capital expenditure;
(xii) Changes in Offices or Names. Change the location of the chief
executive office of any Security Party, the office of the chief place of
business of any such parties, the office of the Security Parties in which the
records relating to the earnings or insurances of the Vessels are kept unless
the Agent shall have received thirty (30) days prior written notice of such
change;
(xiii) Changes in Management. Make any material changes in the
existing management of any Security Party;
(xiv) Consolidation and Merger. Consolidate with, or merge into,
any corporation or other entity, or merge any corporation or other entity into
it unless, in the case of the relevant Security Party, such company shall be the
surviving entity;
(xv) Chartering-in of Vessels. Except for the chartering-in of oil
tankers by OMI Petrolink Corp., a Delaware corporation, in connection with the
operation of its lightering business, charter-in any vessel under a charter
having a term (inclusive of all extensions and renewals) of twelve (12) months
or more;
(xvi) Dividends. (x) Declare or make, and procure that no other
Security Party shall declare or make to any party other than another Security
Party, any distributions to its shareholders, by dividend or otherwise, or
otherwise dispose of any assets to its shareholders in cash or in any other
manner or (y) enter into, and procure that no other Security Party shall enter
into, any agreement or arrangement (other than this Agreement and the Related
Credit Agreement) which restricts or limits it or such other Security Party from
making any such distributions to its immediate parent; and
(xvii) Loan from Marine Car Carriers (MI). Procure that Marine Car
Carriers (MI) shall not make any loans or advances to Marine Transport
Corporation or any subsidiary, officer, director, shareholder or Affiliate
thereof.
9.2 Vessel Valuations. At least every twelve (12) months commencing on the day
falling twelve (12) months from the date hereof and in any event upon the
request of the Agent, the Borrower shall obtain, at the Borrower's cost,
valuations of the Vessels OMI COLUMBIA, charter-free, in Dollars from two
independent shipbrokers satisfactory to the Agent. In the event the Borrower
fails or refuses to obtain the valuations requested
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pursuant to this Section 9.2 within ten (10) days of the Agent's request
therefor, the Agent shall be authorized to obtain such valuations, at the
Borrower's cost, from two independent shipbrokers selected by the Agent, which
valuations shall be deemed the equivalent of valuations duly obtained by the
Borrower pursuant to this Section 9.2, but the Agent's actions in doing so shall
not excuse any default of the Borrower under this Section 9.2. The average of
such two (2) valuations shall be the FMV of each Vessel.
9.3 Asset Maintenance. If at any time the Collateral Vessel Value (together with
the value of any additional collateral theretofore provided under this Section)
falls below one hundred fifty percent (150%) (the "Required Percentage") of an
amount (the "Principal Exposure") equal to the aggregate of (a) the Term Loan
Balance, (b) any Revolving Credit Facility Advances then outstanding, (c) any
undrawn amounts then available under the Revolving Credit Facility, (d) the
Related Indebtedness then outstanding and (e) any amounts then available to be
drawn down pursuant to the Related Credit Agreement, the Borrower shall, within
a period of thirty (30) days following receipt by the Borrower of written notice
from the Agent notifying the Borrower of such shortfall and specifying the
amount thereof (which amount shall, in the absence of manifest error, be deemed
to be conclusive and binding on the Borrower), either (a) deliver to the
Lenders, the Agent or the Westhampton Trustee as the case may be, such
additional collateral, as may be satisfactory to the Agent in its sole
discretion, of sufficient value to restore compliance with the Required
Percentage or (b) prepay such part of the Term Loan (together with interest
thereon and other moneys payable in respect of such prepayment pursuant to
Section 5.6) as shall result in the restoration of compliance with the Required
Percentages. Any such prepayment of the Term Loan shall be applied as provided
in Section 5.6. For purposes of calculating the Collateral Vessels Value under
this Section 9.3, the value of the OMI COLUMBIA shall be deemed to be equal to
the product of (1) the lightweight tonnage of such Vessel multiplied by (2)(x)
One Hundred Twenty-Five Dollars or (y) if such Vessel is hereafter subject to
legal restrictions as to the geographic location where such Vessel may be
scrapped, a scrap price, reasonably deemed by the Agent to reflect a
conservative average market scrap price for those jurisdictions in which, in the
Agent's reasonable opinion, such Vessel may be scrapped in a commercially
reasonable manner.
9.4 Inspection and Survey Reports. If the Agent shall so request, the Borrower
shall provide the Agent with copies of all internally generated inspection or
survey reports on the Vessels.
10. ASSIGNMENT
This Agreement shall be binding upon, and inure to the benefit of, the
Borrower, the Lenders, the Agent and the Westhampton Trustee and their
respective successors and assigns, except that the Borrower may not assign any
of its rights or obligations hereunder without the prior written consent of the
Majority Lenders. In giving any consent as aforesaid to any assignment by the
Borrower, the Lenders shall be entitled to impose such conditions as they shall
deem advisable. Each Lender shall be entitled to assign the whole or any part of
its rights or obligations under this Agreement or grant
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participation(s) in the Term Loan and the Revolving Credit Facility to any
subsidiary, holding company or other affiliate of such Lender, to any subsidiary
or other affiliate company of any thereof or to any other bank or financial
institution, and such Lender shall forthwith give notice of any such assignment
or participation to the Borrower provided, that, the relevant Lender assigns or
participates, as the case may be, to its assignee or participant, (a) equal
proportionate shares of such Lender's interest in both the Term Loan and the
Revolving Credit Facility and (b), simultaneously with its assignment or
participation of a share in the Indebtedness provided hereunder, an equal
proportionate share in the Related Indebtedness in accordance with the
provisions of the Related Credit Agreement and, provided, further, that in the
event of any assignment by any Lender, such assignment (but not any
participation) is to be made pursuant to an Assignment and Assumption Agreement.
The Borrower will take all reasonable actions requested by the Agent, on behalf
of such Lender.
11. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.
11.1 Illegality. In the event that by reason of any change in any applicable
law, regulation or regulatory requirement or in the interpretation thereof (any
such change or interpretation), a Lender has a good faith reasonable basis to
conclude that it has become unlawful for it to maintain or give effect to its
obligations as contemplated by this Agreement, such Lender shall inform the
Borrower to that effect, whereafter the liability of such Lender to make its
portion of the Term Loan and/or the Revolving Credit Facility available shall
forthwith cease and the Borrower shall be required either to repay to such
Lender that portion of the outstanding balance of the Term Loan and/or the
Revolving Credit Facility funded by such Lender immediately or, with respect to
the Term Loan, if the relevant Lender so agrees, to repay such portion of the
Term Loan to such Lender on the last day of any then current Interest Period in
accordance with and subject to the provisions of Section 11.5. In any such
event, but without prejudice to the aforesaid obligations of the Borrower to
repay the Term Loan and/or the Revolving Credit Facility, the Borrower and the
relevant Lender shall negotiate in good faith with a view to agreeing on terms
for making such portion of the Term Loan and/or the Revolving Credit Facility
available from another jurisdiction or otherwise restructuring such portion of
the Term Loan and/or the Revolving Credit Facility on a basis which is not
unlawful.
11.2 Increased Costs. If any change in applicable law, regulation or regulatory
requirement, or in the interpretation or application thereof by any governmental
or other authority, shall:
(i) subject the Agent or any Lender to any Taxes with
respect to its income from the Term Loan and/or the
Revolving Credit Facility, or any part of either
thereof, or
(ii) change the basis of taxation to the Agent or any Lender
of payments of principal or interest or any other
payment due or to become due pursuant to this Agreement
(other than a change in the basis effected by the
jurisdiction of
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organization of the Agent or such Lender, the
jurisdiction of the principal place of business of the
Agent or such Lender, the United States of America, the
State or City of New York or any governmental
subdivision or other taxing authority having
jurisdiction over the Agent or Lender (unless such
jurisdiction is asserted by reason of the activities of
any of the Security Parties) or such other jurisdiction
where the Term Loan and/or the Revolving Credit Facility
may be payable), or
(iii) impose, modify or deem applicable any reserve
requirements or require the making of any special
deposits against or in respect of any assets or
liabilities of, deposits with or for the account of, or
loans by, the Lender, or
(iv) impose on the Agent or any Lender any other condition
affecting the Term Loan and/or the Revolving Credit
Facility or any part of either thereof,
and the result of the foregoing is either to increase the cost to such Lender of
making available or maintaining its Commitment or any part of either thereof or
to reduce the amount of any payment received by the Agent or such Lender, then
and in any such case if such increase or reduction in the opinion of the Agent
or such Lender materially affects the interests of the Agent or such Lender
under or in connection with this Agreement:
(a) the Agent or such Lender, as the case may be, shall notify the
Borrower of the occurrence of such event, and
(b) the Borrower agrees forthwith upon demand to pay to the Agent
or such Lender such amount as the Agent or such Lender
certifies to be necessary to compensate the Agent or such
Lender for such additional cost or such reduction.
11.3 Nonavailability of Funds. If the Agent shall determine that, by reason of
circumstances affecting the London Interbank Market generally, adequate and
reasonable means do not or will not exist for ascertaining the LIBOR for any
Interest Period, the Agent shall give notice of such determination to the
Borrower. The Borrower and the Agent shall then negotiate in good faith in order
to agree upon a mutually satisfactory interest rate and/or Interest Period to be
substituted for LIBOR which would otherwise have applied under this Agreement.
If the Borrower and Agent are unable to agree upon such a substituted interest
rate and/or Interest Period within thirty (30) days of the giving of such
determination notice, the Agent shall set an interest rate and Interest Period
to take effect from the expiration of the Interest Period in effect at the date
of determination, which rate shall be equal to the aggregate of (a) the cost to
each Lender (as certified by such Lender) of funding the relevant Advance, (b)
the then prevailing Margin and (c) in the case of Revolving Credit Facility
Advances, one quarter of one percent (0.25%). In
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the event the state of affairs to which this Section 11.3 refers shall extend
beyond the end of the Interest Period, the foregoing procedure shall continue to
apply until circumstances are such that LIBOR may be determined pursuant to
Section 6.
11.4 Agent's Certificate Conclusive. A certificate or determination notice of
the Agent or any Lender as to any of the matters referred to in this Section 11
shall, absent manifest error, be conclusive and binding on the Borrower.
11.5 Compensation for Losses. Where the Term Loan and/or the Revolving Credit
Facility or a portion of either thereof is to be repaid by the Borrower pursuant
to this Section 11, the Borrower agrees simultaneously with such repayment to
pay to the relevant Lender all accrued interest to the date of actual payment on
the amount repaid and all other sums then payable by the Borrower to the
relevant Lender pursuant to this Agreement together with such amounts as may be
certified by the relevant Lender to be necessary to compensate the Lender for
any actual loss, premium or penalties incurred or to be incurred thereby on
account of funds borrowed to make, fund or maintain its Commitment or such
portion of either thereof for the remainder (if any) of the then current
Interest Period or Periods, if any, but otherwise without penalty or premium.
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12. CURRENCY INDEMNITY
12.1 Currency Conversion. If for the purpose of obtaining or enforcing a
judgment in any court in any country it becomes necessary to convert into any
other currency (the "Judgment Currency") an amount due in Dollars under any
Financing Document then the conversion shall be made, in the discretion of the
Agent at the rate of exchange prevailing either on the date of default or on the
day before the day on which the judgment is given or the order for enforcement
is made, as the case may be (the "Conversion Date"), provided that the Agent
shall not be entitled to recover under this clause any amount in the Judgment
Currency which exceeds at the Conversion Date the amount in Dollars due under
any Financing Document.
12.2 Change in Exchange Rate. If there is a change in the rate of exchange
prevailing between the Conversion Date and the date of actual payment of the
amount due, the Borrower shall pay such additional amounts (if any, but in any
event not a lesser amount) as may be necessary to ensure that the amount paid in
the Judgment Currency when converted at the rate of exchange prevailing on the
date of payment will produce the amount then due under any Financing Document in
Dollars; any excess over the amount due received or collected by the Lenders
shall be remitted to the Borrower.
12.3 Additional Debt Due. Any amount due from the Borrower under this Section 12
shall be due as a separate debt and shall not be affected by judgment being
obtained for any other sums due under or in respect of the Financing Documents.
12.4. Rate of Exchange. The term "rate of exchange" in this Section 12 means the
rate at which the Agent in accordance with its normal practices is able on the
relevant date to purchase Dollars with the Judgment Currency and includes any
premium and costs of exchange payable in connection with such purchase.
13 FEES AND EXPENSES
13.1 Commitment Fee. The Borrower will pay to the Lenders a Commitment Fee at a
rate, per annum, equal to forty percent (40%) of the aggregate of (a) the then
applicable Margin and (b) one quarter of one percent (0.25%), accruing from the
date hereof, payable quarterly in arrears from the date hereof and on the Final
Payment Date, on the available but undrawn amount of the Revolving Credit
Facility. The Commitment Fee shall accrue from day to day and be calculated on
the actual number of days elapsed and a three hundred sixty (360) day year.
13.2 Facilities Fee. A Facilities Fee payable to the Lenders on the earlier of
(a) the date on which the Term Loans are repaid or prepaid in full or refinanced
and (b) the second anniversary of the date hereof. The Facilities Fee shall be
equal to the product of (x) Twenty-Four Million Dollars ($24,000,000) and (y),
if such fee is payable on or before the day falling (i) six (6) months after the
date hereof, one quarter of one percent (0.25%), (ii) twelve (12) months after
the date hereof, one half of one percent (0.50%) or
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(iii) twelve (12) months and one (1) day after the date hereof, three-quarters
of one percent (0.75%).
13.3 Other Fees. The Borrower shall pay the fees set forth in the fee letter
between the Borrower and the Agent dated the date hereof.
13.4 Expenses. The Borrower agrees, whether or not the transactions hereby
contemplated are consummated, on demand to pay, or reimburse the Lenders, the
Agent and the Westhampton Trustee for their payment of, the reasonable expenses
of the Lenders, the Agent and the Westhampton Trustee incident to said
transactions (and in connection with any supplements, amendments, waivers or
consents relating thereto or incurred in connection with the enforcement or
defense of any of the rights and remedies of any Lender, the Agent or the
Westhampton Trustee with respect thereto or in the preservation of the
priorities of the Lenders, the Agent or the Westhampton Trustee under the
documentation executed and delivered in connection therewith) including, without
limitation, all reasonable costs and expenses of preparation, negotiation,
execution and administration of this Agreement and the documents referred to
herein, the reasonable fees and disbursements of the counsel of the Lenders, the
Agent and the Westhampton Trustee in connection therewith, as well as the
reasonable fees and expenses of any independent appraisers, surveyors, engineers
and other consultants retained by the Lenders, the Agent or the Westhampton
Trustee for this transaction, all reasonable costs and expenses, if any, for the
enforcement of the Financing Documents and stamp and other similar taxes, if
any, incident to the execution and delivery of the documents (including, without
limitation, the Notes) herein contemplated and to hold the Lenders, the Agent
and the Westhampton Trustee free and harmless in connection with any liability
arising from the nonpayment of any such stamp or other similar taxes. Such taxes
and, if any, interest and penalties related thereto as may become payable after
the date hereof shall be paid immediately by the Borrower to the relevant
Lender, the Agent or the Westhampton Trustee, as the case may be, when liability
therefor is no longer contested by the Lenders, the Agent or the Westhampton
Trustee, as the case may be, or reimbursed immediately by the Borrower to such
Lender, the Agent or the Westhampton Trustee, as the case may be.
14. APPLICABLE LAW, JURISDICTION AND WAIVER
14.1 Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without any reference to the
conflicts of laws principles of such State.
14.2 Jurisdiction. The Borrower hereby irrevocably submits to the jurisdiction
of the courts of the State of New York and of the United States District Court
for the Southern District of New York in any action or proceeding brought
against it by the Agent, any Lender or the Westhampton Trustee under this
Agreement or under any document delivered hereunder and hereby irrevocably
agrees that valid service of summons or other legal process on it may be
effected by serving a copy of the summons and other legal process in any such
action or proceeding on the Borrower by mailing or delivering the
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same by hand to the Borrower at the address indicated for notices in Section
16.2. The service, as herein provided, of such summons or other legal process in
any such action or proceeding shall be deemed personal service and accepted by
the Borrower as such, and shall be legal and binding upon the Borrower for all
the purposes of any such action or proceeding. Final judgment (a certified or
exemplified copy of which shall be conclusive evidence of the fact and of the
amount of any indebtedness of the Borrower to the Agent, the Lenders or the
Westhampton Trustee) against the Borrower in any such legal action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment. The Borrower will advise the Agent promptly of any change of address
for the purpose of service of process. Notwithstanding anything herein to the
contrary, the Lenders, the Agent or the Westhampton Trustee may bring any legal
action or proceeding in any other appropriate jurisdiction.
14.3 WAIVER OF JURY TRIAL. IT IS MUTUALLY AGREED BY AND AMONG THE BORROWER, THE
OTHER SECURITY PARTIES, THE AGENT, THE WESTHAMPTON TRUSTEE AND THE LENDERS THAT
EACH OF THEM HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY ANY PARTY TO ANY FINANCING DOCUMENT AGAINST ANY OTHER
PARTY TO ANY FINANCING DOCUMENT ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN
ANY WAY CONNECTED WITH ANY FINANCING DOCUMENT.
15. THE AGENT
15.1 (a) Appointment of Agent. Each of the Lenders hereby irrevocably appoints
and authorizes the Agent (which for purposes of this Section 15 shall be deemed
to include the Agent acting in its capacity as security trustee pursuant to
Section 15.1(b)) to take such action as agent on its behalf and to exercise such
powers under the Financing Documents as are delegated to the Agent by the terms
hereof and thereof. Neither the Agent nor any of its directors, officers,
employees or agents shall be liable for any action taken or omitted to be taken
by it or them under the Financing Documents or in connection therewith, except
for its or their own gross negligence or willful misconduct.
(b) Appointment of Security Trustee. Each of the Lenders irrevocably
appoints the Agent as security trustee on their respective behalf with regard to
the (i) security, powers, rights, titles, benefits and interests (both present
and future) constituted by and conferred on the Lenders or any of them or for
the benefit thereof under or pursuant to the Financing Documents (including,
without limitation, the benefit of all covenants, undertakings, representations,
warranties and obligations given, made or undertaken to any Lender in any
Financing Document), (ii) all moneys, property and other assets paid or
transferred to or vested in any Lender or any agent of any Lender or received or
recovered by any Lender or any agent of any Lender pursuant to, or in connection
with, the Financing Documents whether from any Security Party or any other
person and (iii) all money, investments, property and other assets at any time
representing or deriving from any of the foregoing, including all interest,
income and other sums at
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any time received or receivable by any Lender or any agent of any Lender in
respect of the same (or any part thereof). The Agent hereby accepts such
appointment.
15.2 Distribution of Payments. Whenever any payment is received by the Agent
from any Security Party for the account of the Lenders, or any of them, whether
of principal or interest on the Notes, commissions, fees under Sections 13.1 or
13.2 and expenses under Section 13.4, or otherwise, it will thereafter cause to
be distributed on the same day if received before 11 a.m. New York time, or on
the next day if received thereafter, like funds relating to such payment ratably
to the Lenders according to their respective Commitments, in each case to be
applied according to the terms of this Agreement.
15.3 Holder of Interest in Note. The Agent may treat each Lender as the holder
of all of the interest of such Lender in the Note, until, in the case of an
assignment, the Agent has received an original Assignment and Assumption
Agreement executed by such Lender and its assignee.
15.4 No Duty to Examine, Etc. The Agent shall not be under a duty to examine or
pass upon the validity, effectiveness or genuineness of any of the Financing
Documents or any instrument, document or communication furnished pursuant to or
in connection with any Financing Document, and the Agent shall, in the absence
of gross negligence, be entitled to assume that the same are valid, effective
and genuine, have been signed or sent by the proper parties and are what they
purport to be.
15.5 Agent as Lender. With respect to that portion of the Term Loan and the
Revolving Credit Facility made available by it, the Agent shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not the Agent, and the term "Lender" or "Lenders" shall include
the Agent in its capacity as a Lender. The Agent and its affiliates may accept
deposits from, lend money to and generally engage in any kind of business with,
the Security Parties as if it were not the Agent.
15.6 (a) Obligations of Agent. The obligations of the Agent under the Financing
Documents are only those expressly set forth herein and therein.
(b) No Duty to Investigate. The Agent shall not at any time be under any
duty to investigate whether an Event of Default, or an event which with the
giving of notice or lapse of time, or both, would constitute an Event of
Default, has occurred or to investigate the performance of any Financing
Document by any Security Party.
15.7 (a) Discretion of Agent. The Agent shall be entitled to use its discretion
with respect to exercising or refraining from exercising any rights which may be
vested in it by, and with respect to taking or refraining from taking any action
or actions which it may be able to take under or in respect of, the Financing
Documents, unless the Agent shall have been instructed by the Majority Lenders
to exercise such rights or to take or refrain from taking such action; provided,
however, that the Agent shall not be required
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to take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law.
(b) Instructions of Majority Lenders. The Agent shall in all cases be
fully protected in acting or refraining from acting under any Financing Document
in accordance with the instructions of the Majority Lenders, and any action
taken or failure to act pursuant to such instructions shall be binding on all of
the Lenders.
15.8 Assumption re Event of Default. Unless the Agent has been notified by any
Security Party that an Event of Default, or event which with the giving of
notice or lapse of time, or both, would constitute an Event of Default, has
occurred and is continuing, or has been notified by a Lender that such Lender
considers that an Event of Default or such an event (specifying in detail the
nature thereof) has occurred and is continuing, except as otherwise provided in
Section 15.14 hereof, the Agent shall be entitled to assume that no Event of
Default, or event which with the giving of notice or lapse of time, or both,
would constitute an Event of Default, has occurred and is continuing. In the
event that the Agent shall have been notified by any Security Party or any
Lender in the manner set forth in the preceding sentence of any Event of Default
or of an event which with the giving of notice or lapse of time, or both, would
constitute an Event of Default, the Agent shall notify the Lenders and shall
take action and assert such rights under the Financing Documents as the Majority
Lenders shall request in writing.
15.9 No Liability of Agent or Lenders. Neither the Agent nor any of the Lenders
shall be under any liability or responsibility whatsoever:
(a) to any Security Party or any other person or entity as a consequence
of any failure or delay in performance by, or any breach by, any other Lenders
or any other person of any of its or their obligations under any Financing
Document;
(b) to any Lender or Lenders, as a consequence of any failure or delay in
performance by, or any breach by, any Security Party of any of its respective
obligations under the Financing Documents; or
(c) to any Lender or Lenders, for any statements, representations or
warranties contained in any Financing Document or any document or instrument
delivered in connection with the transaction hereby contemplated; or for the
validity, effectiveness, enforceability or sufficiency of any Financing Document
or any document or instrument delivered in connection with the transactions
hereby contemplated.
15.10 Indemnification of Agent. The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Security Parties or any thereof), pro rata
according to the respective amounts of their Commitments, from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including legal fees and expenses incurred in investigating claims
and defending itself against such liabilities) which may be imposed on, incurred
by or asserted against, the Agent in any way relating to or arising
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out of any Financing Document, any action taken or omitted by the Agent
thereunder or the preparation, administration, amendment or enforcement of, or
waiver of any provision of, any Financing Document, except that no Lender shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Agent's gross negligence or willful misconduct.
15.11 Consultation with Counsel. The Agent may consult with legal counsel
selected by the Agent and shall not be liable for any action taken, permitted or
omitted by it in good faith in accordance with the advice or opinion of such
counsel.
15.12 Resignation. The Agent may resign at any time by giving sixty (60) days'
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Lenders shall have the right to appoint a successor Agent. If
no successor Agent shall have been so appointed by the Lenders and shall have
accepted such appointment within sixty (60) days after the retiring Agent's
giving notice of resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a bank or trust company of
recognized standing. The appointment of any successor Agent shall be subject to
the prior written consent of the Borrower, such consent not be unreasonably
withheld. After any retiring Agent's resignation as Agent hereunder, the
provisions of this Section 15 shall continue in effect for its benefit with
respect to any actions taken or omitted by it while acting as Agent.
15.13 Representations of Lenders. Each Lender represents and warrants to each
other Lender and the Agent that:
(i) In making its decision to enter into this Agreement and to make its
Commitment available hereunder, it has independently taken whatever steps it
considers necessary to evaluate the financial condition and affairs of the
Security Parties, that it has made an independent credit judgment and that it
has not relied upon any statement, representation or warranty by any other
Lender or the Agent; and
(ii) So long as any portion of its Commitment remain outstanding, it will
continue to make its own independent evaluation of the financial condition and
affairs of the Security Parties.
15.14 Notification of Event of Default. The Agent hereby undertakes to notify
promptly the Lenders, and the Lenders hereby undertake to notify promptly the
Agent and the other Lenders, of the existence of any Event of Default which
shall have occurred and be continuing of which the Agent or any Lender has
actual knowledge.
16. NOTICES AND DEMANDS
16.1 Notices in Writing. Every notice or demand under this Agreement shall be in
writing and may be given or made by facsimile.
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16.2 Addresses for Notice. Every notice or demand shall be sent as follows:
If to the Borrower:
c/o Marine Transport Corporation
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax No.: 000-000-0000
Attn: General Counsel, X.X. Xxxxx
If to the Agent (with copies to the Lenders):
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: 000-000-0000
Attn: Xxxxxxx Xxxxxxxxx
If to the Lenders, to such Lender's address and fax number as set forth in
Schedule 1 (with a copy to the Agent).
Any notice sent by facsimile shall be confirmed by letter dispatched as soon as
practicable thereafter.
16.3 Notices Deemed Received. Every notice or demand shall, except so far as
otherwise expressly provided by this Agreement, be deemed to have been received
(provided that it is received prior to 2 p.m. New York time; otherwise it shall
be deemed to have been received on the next following Banking Day), in the case
of a facsimile at the time of dispatch thereof (provided further that if the
date of dispatch is not a Banking Day in the locality of the party to whom such
notice or demand is sent it shall be deemed to have been received on the next
following Banking Day in such locality) and, in the case of a letter, at the
time of receipt thereof.
17. MISCELLANEOUS
17.1 Time of Essence. Time is of the essence of this Agreement but no failure or
delay on the part of the Lenders, the Agent or the Westhampton Trustee to
exercise any power or right under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise by the Lenders, the Agent or
the Westhampton Trustee of any power or right hereunder preclude any other or
further exercise thereof or the exercise of any other power or right. The
remedies provided herein are cumulative and are not exclusive of any remedies
provided by law.
17.2 Unenforceable, etc., Provisions - Effect. In case any one or more of the
provisions contained in any Financing Document would, if given effect, be
invalid, illegal or unenforceable in any respect under any law applicable in any
relevant jurisdiction, said provision shall not be enforceable against the
relevant Security Party,
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but the validity, legality and enforceability of the remaining provisions herein
or therein contained shall not in any way be affected or impaired thereby.
17.3 Indemnification. The Borrower and, by its execution and delivery of the
Consent and Agreement set forth below, each of the other Security Parties
jointly and severally agree to indemnify the Lenders, the Agent, the Westhampton
Trustee, their respective successors and assigns, and their respective officers,
directors, employees, representatives and agents (each an "Indemnitee") from,
and hold each of them harmless against, any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever (including, without limitation,
the fees and disbursements of counsel for such Indemnitee in connection with any
investigative, administrative or judicial proceeding commenced or threatened,
whether or not such Indemnitee shall be designated a party thereto) that may at
any time (including, without limitation, at any time following the repayment of
the Term Loan and the Revolving Credit Facility Advances) be imposed on,
asserted against or incurred by, any Indemnitee as a result of, or arising out
of or in any way related to or by reason of, (a) any violation by any Security
Party (or any charterer or other operator of any Vessel) of any applicable
Environmental Law, (b) any Environmental Claim arising out of the management,
use, control, ownership or operation of property or assets by any Security Party
(or, after foreclosure, by the Lenders, the Agent, the Westhampton Trustee or
their respective successors or assigns after any such foreclosure) and (3) the
breach of any representation, warranty or covenant set forth in Sections 2.1 (p)
or (q) or 9.1(A)(xi). If and to the extent that the obligations of the Security
Parties under this Section are unenforceable for any reason, the Borrower and,
by its execution and delivery of the Consent and Agreement set forth below, each
of the other Security Parties jointly and severally agree to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law. The obligations of the Security Parties under
this Section 17.3 shall survive the termination of this Agreement and the
repayment to the Lender, the Agent and the Westhampton Trustee of all amounts
owing to each thereof under or in connection herewith.
17.4 References. References herein to Sections and Schedules are to be construed
as references to sections of, and schedules to, this Agreement.
17.5 Further Assurances. The Borrower agrees that if any Financing Document
shall, in the reasonable opinion of the Agent, at any time be deemed by the
Agent for any reason insufficient in whole or in part to carry out the true
intent and spirit hereof or thereof, it will execute or cause to be executed
such other and further assurances and documents as in the opinion of the Agent
may be required in order more effectively to accomplish the purposes of such
Financing Document.
17.6 Prior Agreements, Merger. Any and all prior understandings and agreements
heretofore entered into between the Security Parties on the one part, and the
Lenders, the Agent or the Westhampton Trustee, on the other part, whether
written or oral, are superseded by and merged into this Agreement and the other
agreements (the forms of which are exhibited hereto) to be executed and
delivered in connection herewith to which
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any Security Party and/or the Lenders, the Agent or the Westhampton Trustee are
parties, which alone fully and completely express the agreements between the
Security Parties, the Lenders, the Agent and the Westhampton Trustee.
17.7 Entire Agreement; Amendments. This Agreement constitutes the entire
agreement of the parties hereto including all parties added hereto pursuant to
an Assignment and Assumption Agreement and cannot be amended other than by
written agreement signed by all such parties.
17.8 Headings. In this Agreement, Section headings are inserted for convenience
of reference only and shall not be taken into account in the interpretation of
this Agreement.
IN WITNESS whereof, each party hereto has caused this Agreement to
be duly executed by its duly authorized representative on the day and year first
above written.
MARINE TRANSPORT LINES, INC.
By:____________________________
Name:
Title:
By Special Authority for
DEN NORSKE BANK ASA
By:____________________________
Xxxxxxxx X. Xxxxxx
Senior Vice President
New York Branch
By:____________________________
Xxxxxxx Xxxxxxxxx
Vice President
New York Branch
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CONSENT AND AGREEMENT
AND ACCOUNT ASSIGNMENT
Each of the undersigned, referred to in the foregoing Amended and
Restated Term Loan and Revolving Credit Facility Agreement as the "Guarantors",
hereby consents and agrees to said Agreement and to the documents contemplated
thereby and to the provisions contained therein relating to conditions to be
fulfilled and obligations to be performed by the undersigned pursuant to or in
connection with said Agreement and particularly agree to be bound by the
representations, warranties and covenants relating to the undersigned contained
in Sections 2 and 9 of said Agreement to the same extent as if the undersigned
were a party to said Agreement.
In particular, but without limitation of the foregoing, each of the
undersigned hereby covenants and agrees to maintain its primary collection and
revenue accounts with the Agent and shall procure that all earnings of any
Vessels shall be paid into such collection accounts. As security for its
obligations under the Financing Documents, each of the undersigned hereby
pledges, assigns and grants the Agent, on behalf of the Lenders, a security
interest in all the undersigned's right, title and interest in and to the
aforesaid collection and disbursement accounts and consents that if an Event of
Default shall occur and so long as the same shall be continuing, all moneys held
in the said accounts and all moneys thereafter received by the Agent may be
applied as provided in Section 8.3 of the Agreement.
Each of the undersigned which are Existing Guarantors, as defined in
the Agreement hereby covenants and agrees that each of the Security Documents
executed thereby pursuant to the Original Credit Agreement shall be amended to
the extent that all references therein to the Credit Agreement, the Notes, the
Guaranty, the Mortgages and the other Security Documents shall be deemed to
refer to the Agreement, the Notes, the Guaranty and the Security Documents as
the same are amended and restated or amended in accordance with the terms of the
foregoing Agreement.
MARINE TRANSPORT OSWEGO CORPORATION
MANAGEMENT, INC.
By:_________________________ By:___________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
OSWEGO CHEMICAL CARRIERS MARINE BARGE COMPANY
CORPORATION
By:_________________________ By:___________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
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MARINE CHEMICAL NAVIGATION MARINE NAVIGATION SULPHUR
CORPORATION CARRIERS, INC.
By:_________________________ By:___________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
MARINE SULPHUR SHIPPING MARINE ALASKA, INC.
CORPORATION
By:_________________________ By:_________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
OMI CHALLENGER TRANSPORT, INC. OMI PETROLINK, CORP.
By:_________________________ By:_________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
COURIER TRANSPORT, INC. INTREPID SHIP MANAGEMENT, INC.
By:_________________________ By:_________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
PATRIOT TRANSPORT, INC. ROVER TRANSPORT, INC.
By:_________________________ By:_________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
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HARLINK CORP. OMIP, INC.
By:_________________________ By:_________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
NUELINK CORP. OMI OFFSHORE MARINE SERVICES
INC.
By:_________________________ By:_________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
MARINE TRANSPORT CORPORATION MARINE CAR CARRIERS INC., a
Delaware corporation
By:_________________________ By:_________________________
Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Secretary Secretary
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