SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 2, 1997
TRICO MARINE SERVICES, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-28316 72-1252405
(State or other jurisdiction (Commission File Number) (IRS Employer
f incorporation) Identification No.)
250 North American Court, Houma, Louisiana 70363
(Address of principal executive offices) (Zip Code)
(504) 851-3833
(Registrant's telephone number, including area code)
N/A
(Former name or former address, if changed since last report.)
Item 2.Acquisition or Disposition of Assets.
On December 2, 1997, Trico Marine Services, Inc. (the
"Company"), through its wholly-owned subsidiary, Trico Marine
International Holdings B.V. ("International"), acquired
approximately 99% of the outstanding shares of Saevik Supply ASA,
a publicly-traded Norwegian company ("Saevik Supply"), for
approximately $287.5 million in cash. The shares were acquired
pursuant to a public bid made by the Company in compliance with
the rules of the Oslo Stock Exchange. The price per share
offered by the Company in the public bid was the result of
negotiations between the Company and the board of directors of
Saevik Supply. Under Norwegian law, the Company is required to
make a mandatory bid to acquire for cash the remaining shares of
Saevik Supply. The Company intends to initiate the mandatory bid
in December 1997 at a price of 165 NOK per share. If the Company
acquires all the remaining shares of Saevik Supply pursuant to the
mandatory bid, it expects to pay approximately $1.5 million for
such shares. If any shares remain outstanding upon completion of
the mandatory bid, under Norwegian law, the Company will have the
compulsory right to purchase such shares and the holders of such
remaining shares will have the right to require that their shares
be redeemed. In the absence of an agreement by the parties as to
the value of such shares, Norwegian law would require that the
amount be determined in court.
Saevik Supply is a leading provider of marine support and
transportation services to companies engaged in offshore
exploration and production of oil and gas in the North Sea and
operates the third largest fleet of platform supply vessels
("PSVs") in the North Sea. Saevik Supply's current fleet consists
of six large anchor handling, towing and supply vessels ("AHTSs")
and ten owned and one managed PSVs. During the nine months ended
September 30, 1997, Saevik Supply reported total revenues of NOK
431.9 ($60.6) million and net income of NOK 193.0 ($27.1)
million.
In connection with the acquisition the Company amended its
existing revolving credit facility to provide for a $150.0
million revolving line of credit (the "Revolving Credit
Facility") and $200.0 million in term facilities (the "Term
Loans"). In order to fund the Acquisition and certain related
expenses, the Company borrowed $68.5 million under the Revolving
Credit Facility and $125.0 million under the Term Loans and
issued $100 million of 8 1/2% Senior Notes due 2005, Series C (the
"Senior Note Offering"). The net proceeds of the Senior Note
Offering were approximately $98.7 million. On December 9,
1997, the Company also completed a public offering of 4,000,000
shares of its common stock at $28.00 per share. The net proceeds
from the common stock offering (approximately $106.9 million)
will be used to repay a portion of the outstanding Term Loans.
There are no material relationships between the shareholders
of and the Company, its affiliates, officer or directors, or
associates of the Company's officers and directors.
Item 7.Financial Statements and Exhibits.
(a) The financial statements required by this item were
filed as part of the Company's Registration Statement, as amended
(the "Registration Statement"), on Form S-3 (Registration No.
333-39597), originally filed with the Commission on November 5,
1997 (pages F-29 through F-57), and are incorporated herein by
reference.
(b) The pro forma financial information required by this
item was filed as part of the Registration Statement (pages F-1
through F-7), and is incorporated by reference herein.
(c) Exhibits
10.1 Amended and Restated Revolving Credit and Term
Loan Agreement, dated as of December 1, 1997, by and among the
Company, Trico Marine Operators, Inc., Trico Marine Assets, Inc.,
Saevik Shipping AS, International and BankBoston, N.A., as agent
for itself and the other financial institutions named therein.
23.1 Consent of KPMG as Gerd Leira
23.2 Consent of Deloitte & Touche as Roar Skuland
99.1 Financial Statements of Saevik Supply ASA and the
Viking Vessels (as defined therein). Incorporated
by reference from pages F-29 through F-57 of the
Registration Statement.
99.2 Pro Forma Financial Information with respect to
the acquisition of Saevik Supply. Incorporated by
reference herein from pages F-1 through F-7 of the
Registration Statement.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
TRICO MARINE SERVICES, INC.
By: /s/ Victor M. Perez
Victor M. Perez
Vice President, Chief Financial Officer
and Treasurer
Dated: December 9, 1997
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN
AGREEMENT, amended and restated as of December 1, 1997 is by and among
(a) TRICO MARINE OPERATORS, INC. ("Marine Operators"), a Louisiana
corporation having its principal place of business and chief executive
office at 250 North American Court, Houma, Louisiana 70363, TRICO
MARINE ASSETS, INC. ("Marine Assets"), a Delaware corporation having
its principal place of business and chief executive office at 250
North American Court, Houma, Louisiana 70363 (each of Marine Operators
and Marine Assets, a "US Borrower", and, collectively, the "US
Borrowers"), (b) TRICO MARINE SERVICES, INC. (the "Parent"), a
Delaware corporation having its principal place of business and chief
executive office at 250 North American Court, Houma, Louisiana 70363,
(c) SAEVIK SHIPPING AS (the "Norwegian Borrower"), a Norwegian limited
liability company having its registered office at Fosnavag, Norway,
(d) TRICO MARINE INTERNATIONAL HOLDINGS B.V. (the "Dutch Borrower") a
private company with limited liability under the laws of the
Netherlands having its registered office at Rotterdam, the
Netherlands, (e) the financial institutions listed on Schedule 1.1
here to and such other financial institutions as may become parties to
this Agreement from time to time in accordance with the terms hereof,
and (f) BANKBOSTON, N.A. as agent for itself and such financial
institutions (the "Agent").
WHEREAS, pursuant to a Revolving Credit Agreement, dated as of
July 26, 1996 (as amended, the "Existing Credit Agreement") among
Marine Operators, Marine Assets, the Parent, the banks party thereto
(the "Existing Banks") and the Agent, the Existing Banks and the Agent
have made loans to, and otherwise extended credit to Marine Operators
and Marine Assets;
WHEREAS, Marine Operators, Marine Assets and the Parent have
requested that the Existing Banks and the Agent amend and restate the
Existing Credit Agreement as set forth herein; and
WHEREAS, the Existing Banks and the Agent have agreed, subject
to the terms and conditions set forth herein, to amend and restate the
Existing Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree
that, on and as of the Closing Date, the Existing Credit Agreement
shall be amended and restated in its entirety as set forth herein and
shall remain in full force and effect only as provided herein:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
Section 1.1. Definitions. The following terms shall have the
meanings set forth in this Section 1 or elsewhere in the provisions of
this Agreement referred to below:
Additional Senior Notes. The 8-1/2% Senior Notes due 2005 of
the Parent, in an aggregate principal amount not to exceed
$100,000,000, guaranteed by the US Borrowers and issued on or before
the Closing Date pursuant to such documentation as shall have been
previously delivered to, and approved by, the Agent.
Adjustment Date. The first day of the month immediately
following the month in which a Compliance Certificate is delivered by
the Borrowers pursuant to Section 8.4(c) hereof.
Affiliate. Any Person that directly or indirectly controls,
is controlled by or under common control with another Person. A
Person shall be deemed to control another Person if the controlling
Person possesses, directly or indirectly, the power to direct or cause
the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
Agent. As defined in the introductory paragraph hereof.
Agreement. This Amended and Restated Revolving Credit and
Term Loan Agreement, including the Schedules and Exhibits hereto.
Applicable Margin. (a) With respect to any Dollar Base Rate
Loan, Eurocurrency Rate Loan, and any Kroner Base Rate Loan, and for
each period commencing on an Adjustment Date through the date
immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable
margin per annum set forth below corresponding to the Leverage Ratio
calculated as at the applicable Adjustment Date:
Eurocurrency
Rate Loans
Dollar and Kroner
Level Leverage Ratio Base Rate Base Rate
Loans Loans
I greater than or equal to 3.5:1.0 0.75% 2.25%
II greater than or equal to 3.0:1.0
and less than 3.5:1.0 0.50% 2.00%
III greater than or equal to 2.5:1.0
and less than 3.0:1.0 0% 1.50%
IV greater than or equal to 2.0:1.0
and less than 2.5:1.0 0% 1.25%
V less than 2.0:1.0 0% 1.00%
In the event that the Parent's long term senior
secured debt or corporate credit rating (i) as assigned by
Standard & Poor's Ratings Group is "B+" or lower or (ii)
as assigned by Moody's Corporation is "B1" or lower, or in
the event that no such senior secured debt or corporate
credit rating has been assigned, then the Applicable
Margin for all Dollar Base Rate Loans, Eurocurrency Rate
Loans and Kroner Base Rate Loans for all Levels set forth
in the table above shall increase by 0.25% with effect
from the date such rating is assigned and at all times
thereafter until the Parent's long term senior unsecured
debt rating (i) as assigned by Standard & Poor's Ratings
Group is "BB" or higher and (ii) as assigned by Moody's
Corporation is "Ba2" or higher.
(b) Notwithstanding the foregoing, the Applicable
Margin for each Loan shall not be lower than the
Applicable Margin for Level II set forth in the table
above until the Adjustment Date next following the
delivery to the Banks of the financial statements of the
Parent and its Subsidiaries (and the corresponding
Compliance Certificate relating thereto) for the fiscal
year of the Parent ending on December 31, 1997.
(c) If the Borrowers shall fail to deliver any
Compliance Certificate pursuant to Section 8.4(c) hereof,
then, for the period commencing on the date such
Compliance Certificate was due pursuant to Section 8.4(c)
through the Adjustment Date immediately following the date
on which such Compliance Certificate is delivered, the
Applicable Margin for each Base Rate Loan, Eurocurrency
Rate Loan or Kroner Base Rate Loan shall be that
corresponding to Level I in the table above.
Assignment and Acceptance. See Section 19.1 hereof.
Balance Sheet Date. December 31, 1996.
BankBoston. BankBoston, N.A. in its individual capacity.
Banks. Collectively, the Revolver Banks, the Fronting Bank,
the Norwegian Term A Banks and the Dutch Banks.
Base Rate Loans. Loans or any portion thereof bearing
interest calculated by reference to the Dollar Base Rate or the Kroner
Base Rate.
Borrowers. Collectively, the US Borrowers, the Norwegian
Borrower and the Dutch Borrower, and the term Borrower shall refer to
any of them.
Business Day. Any day on which banking institutions in
Boston, Massachusetts, London, England and Oslo, Norway are open for
the transaction of banking business and, with respect to a
Eurocurrency Rate Loan, also a day which is a Eurocurrency Business
Day.
Capital Assets. Fixed assets, both tangible (such as
vessels, land, buildings, fixtures, machinery and equipment) and
intangible (such as patents, copyrights, trademarks, franchises and
good will); provided that Capital Assets shall not include any item
customarily charged directly to expense or depreciated over a useful
life of twelve (12) months or less in accordance with generally
accepted accounting principles.
Capital Expenditures. Amounts paid or indebtedness incurred
by a Person in connection with the purchase or lease by such Person of
Capital Assets that would be required to be capitalized and shown on
the balance sheet of such Person in accordance with generally accepted
accounting principles.
Capitalized Leases. Leases under which a Person is the
lessee or obligor, the discounted future rental payment obligations
under which are required to be capitalized on the balance sheet of the
lessee or obligor in accordance with generally accepted accounting
principles.
CERCLA. See Section 7.18 hereof.
Closing Date. The first date on which the conditions set
forth in Section 11 have been satisfied, which in no event shall be
later than December 1, 1997.
Code. The Internal Revenue Code of 1986.
Collateral. Those Vessels and other property, rights and
interests of the Parent, the Borrowers and the other Subsidiaries of
the Parent that are or are intended to be subject to the security
interests and mortgages created by the Security Documents.
Commitment. Any of the Revolver Commitments, the Norwegian
Term A Commitments, the Dutch Term A Commitments and the Dutch Term B
Commitments.
Commitment Fee. See Section 2.2.1.
Commitment Fee Rate. (a) For each period commencing on an
Adjustment Date through the date immediately preceding the next
Adjustment Date (each a "Rate Adjustment Period"), the Commitment Fee
Rate shall be the rate per annum set forth below corresponding to the
Leverage Ratio calculated as at the applicable Adjustment Date:
Commitment Fee
Level Leverage Ratio Rate
I greater than or equal to 3.5:1.0 0.500%
II greater than or equal to 3.0:1.0 and less 0.500%
than 3.5:1.0
III greater than or equal to 2.5:1.0 and less 0.375%
than 3.0:1.0
IV greater than or equal to 2.0:1.0 and less 0.375%
than 2.5:1.0
V less than 2.0:1.0 0.250%
(b) Notwithstanding the foregoing, the Commitment
Fee Rate shall not be lower than the Commitment Fee Rate
for Level II set forth in the table above until the
Adjustment Date next following the delivery to the Banks
of the financial statements of the Parent and its
Subsidiaries (and the corresponding Compliance Certificate
relating thereto) for the fiscal year of the Parent ending
on December 31, 1997.
(c) If the Borrowers shall fail to deliver any
Compliance Certificate pursuant to Section 8.4(c) hereof,
then, for the period commencing on the date such
Compliance Certificate was due pursuant to Section 8.4(c)
through the Adjustment Date immediately following the date
on which such Compliance Certificate is delivered, the
Commitment Fee Rate shall be that corresponding to Level I
in the table above.
Consolidated or consolidated. With reference to any term
defined herein, shall mean that term as applied to the accounts of the
Parent and its Subsidiaries, consolidated in accordance with generally
accepted accounting principles.
Consolidated EBITDA. For any period, the consolidated Net
Income of the Parent and its Subsidiaries for such period, after all
expenses and other proper charges, but before payment or provision for
any income taxes, interest expense, depreciation or amortization for
such period, determined on a consolidated basis for such Persons in
accordance with generally accepted accounting principles.
Consolidated Net Tangible Assets. With respect to the Parent
and its Restricted Subsidiaries and as at any date, the sum of the
amounts that would appear on a consolidated balance sheet of the
Parent and its Restricted Subsidiaries as the total assets of the
Parent and its Restricted Subsidiaries, determined on a consolidated
basis for such Persons in accordance with generally accepted
accounting principles and after deducting therefrom, (a) to the extent
otherwise included, unamortized debt discount and expenses and other
unamortized deferred charges, goodwill, patents, trademarks, service
marks, trade names, copyrights, licenses, organization or development
expenses and other intangible items and (b) the aggregate amount of
liabilities of the Parent and its Restricted Subsidiaries which may
properly be classified as current liabilities (including tax accrued
as estimated), determined on a consolidated basis for such Persons in
accordance with generally accepted accounting principles.
Consolidated Total Interest Expense. For any period, the
aggregate amount of interest required to be paid or accrued by the
Parent and its Subsidiaries during such period on all Indebtedness of
the Parent and its Subsidiaries outstanding during all or any part of
such period, whether such interest was or is required to be reflected
as an item of expense or capitalized, including payments consisting of
interest in respect of any Capitalized Lease, and including commitment
fees, agency fees, facility fees, balance deficiency fees and similar
fees or expenses in connection with the borrowing of money.
Conversion Request. A notice given by the US Borrowers, the
Norwegian Borrower or the Dutch Borrower (as the case may be) to the
Agent of such Borrower's election to convert a Loan to a Loan of
another Type or to continue a Loan as a Loan of a certain Type, in
each case in accordance with Section 2.8(b).
Debt Service Coverage Ratio. As at the end of any fiscal
quarter, the ratio, determined for each fiscal quarter through
September 30, 1998, on a pro forma basis giving effect to the Takeover
as if the Takeover had occurred on the first day of the four quarter
period ending on such date, of (a) the consolidated Operating Cash
Flow of the Parent and its Subsidiaries for the period of the four (4)
consecutive fiscal quarters of the Parent ending on such date to (b)
consolidated Total Debt Service of the Parent and its Subsidiaries for
the period of four (4) consecutive fiscal quarters of the Parent
ending on such date; provided, that for purposes of calculating the
Debt Service Coverage Ratio for the fiscal quarter of the Borrower
ending on (i) March 31, 1998, consolidated Operating Cash Flow and
Total Debt Service shall be the consolidated Operating Cash Flow and
Total Debt Service for the fiscal quarter then ending, (ii) June 30,
1998, consolidated Operating Cash Flow and Total Debt Service shall be
the consolidated Operating Cash Flow and Total Debt Service for the
period of the two fiscal quarters then ending, and (iii) September 30,
1998, consolidated Operating Cash Flow and Total Debt Service shall be
the consolidated Operating Cash Flow and Total Debt Service for the
period of the three fiscal quarters then ending.
Default. See Section 13 hereof.
Delinquent Bank. See Section 15.5.3 hereof.
Distribution. The declaration or payment of any dividend on
or in respect of any shares of any class of capital stock of any
Person, other than dividends payable solely in shares of common stock
of such Person; the purchase, redemption, or other retirement of any
shares of any class of capital stock of any Person, directly or
indirectly through a Subsidiary of such Person or otherwise; the
return of capital by any Person to its shareholders as such; or any
other distribution on or in respect of any shares of any class of
capital stock of such Person.
Dollars or $. Dollars in lawful currency of the United
States of America.
Dollar Base Rate. The higher of (a) the annual rate of
interest announced from time to time by BankBoston at its head office
in Boston, Massachusetts, as its "base rate" for borrowings in Dollars
and (b) one-half of one percent (1/2%) above the Federal Funds
Effective Rate. For the purposes of this definition, "Federal Funds
Effective Rate" shall mean, for any day, the rate per annum equal to
the weighted average of the rates on overnight federal funds
transactions in Dollars with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or if
such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent
from three funds brokers of recognized standing selected by the Agent.
Dollar Base Rate Loan. Any Loan or portion thereof bearing
interest calculated by reference to the Dollar Base Rate.
Dollar Equivalent. On any date of determination, with
respect to an amount denominated in Kroner, the amount of Dollars
which could be purchased with that amount of Kroner at the spot rate
of exchange quoted by the Agent in the London foreign exchange market
at or about 11:00 am (London time) on the date of determination for
the purchase of Dollars with Kroner.
Dollar Eurocurrency Rate. For any Interest Period with
respect to a Eurocurrency Rate Loan denominated in Dollars, the rate
of interest equal to (a) the rate per annum (rounded upwards to the
nearest 1/16 of one percent) at which the Agent's Eurocurrency Lending
Office is offered Dollar deposits two (2) Eurocurrency Business Days
prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and
exchange operations of such Eurocurrency Lending Office are
customarily conducted at or about 10:00 a.m., Boston time, for
delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of
the Eurocurrency Rate Loan to which such Interest Period applies,
divided by (b) a number equal to 1.00 minus the Eurocurrency Reserve
Rate, if applicable.
Dollar Eurocurrency Rate Loan. Any Loan or portion thereof
bearing interest calculated by reference to the Dollar Eurocurrency
Rate.
Drawdown Date. (a) With respect to the US Revolver Loans or
the Norwegian Revolver Loans, the date on which any such Loan is made
or is to be made, and the date on which any US Revolver Loan or
Norwegian Revolver Loan is converted or continued in accordance with
Section 2.8, (b) with respect to the Dutch Term A Loan or the Dutch
Term B Loan, the Closing Date and the date on which all or any portion
of such Loan is converted or continued in accordance with Section
4.5(d) or Section 4A.5(c), as the case may be, and (c) with respect to
the Norwegian Term A Loan, the Norwegian Closing Date and the date on
which all or any portion of such Loan is converted or continued in
accordance with Section 4.5(d).
Dutch Banks. The Dutch Term A Banks and the Dutch Term B
Banks.
Dutch Borrower. As defined in the preamble hereto.
Dutch Collateral. See Section 6.2.
Dutch Guaranty. The Guaranty Agreement, dated as of the
Closing Date, from the Dutch Borrower to the Agent and each of the
Banks.
Dutch Obligations. All Obligations of any of the Parent, the
Borrowers or the Guarantors to the Dutch Banks or the Agent under or
in respect of or in connection with any of the Dutch Term A Loan or
Dutch Term B Loan and including any interest thereon or other fees in
respect thereof and including all other obligations under any other
instruments at any time evidencing any thereof.
Dutch Pledge Agreement. The Pledge of Shares, dated as of
the Closing Date, from the Dutch Borrower to the Agent, relating to
the capital stock of the Target.
Dutch Term A Banks. The Banks that have agreed to make the
Dutch Term A Loan to the Dutch Borrower, as evidence by such Bank
having a positive figure beside its name in the column entitled "Dutch
Term A Commitment" on Schedule 1.1 hereto.
Dutch Term A Commitment. With respect to each Dutch Term A
Bank, the amount set forth on Schedule 1.1 attached hereto as the
amount of such Dutch Term A Bank's commitment to make a portion of the
Dutch Term A Loan to the Dutch Borrower on the Closing Date.
Dutch Term A Loan. See Section 4.1(b).
Dutch Term A Note. See Section 4.2(b).
Dutch Term A Percentage. With respect to each Dutch Term A
Bank, the amount set forth on Schedule 1.1 attached hereto as such
Dutch Term A Bank's percentage of the Dutch Term A Loan.
Dutch Term B Banks. The Banks that have agreed to make the
Dutch Term B Loan to the Dutch Borrower, as evidenced by such Bank
having a positive figure beside its name in the column entitled "Dutch
Term B Commitment" on Schedule 1.1 hereto.
Dutch Term B Commitment. With respect to each Dutch Term B
Bank, the amount set forth on Schedule 1.1 attached hereto as the
amount of such Dutch Term B Bank's commitment to make a portion of the
Dutch Term B Loan to the Dutch Borrower on the Closing Date.
Dutch Term B Loan. See Section 4A.1.
Dutch Term B Note. See Section 4A.2.
Dutch Term B Percentage. With respect to each Dutch Term B
Bank, the amount set forth on Schedule 1.1 attached hereto as such
Dutch Term B Bank's percentage of the Dutch Term B Loan.
Eligible Assignee. Any of (a) a commercial bank or finance
company organized under the laws of the United States, or any State
thereof or the District of Columbia, and having total assets in excess
of $1,000,000,000; (b) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof or
the District of Columbia, and having a net worth of at least
$100,000,000, calculated in accordance with generally accepted
accounting principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a branch or
agency located in the country in which it is organized or another
country which is also a member of the OECD; (d) the central bank of
any country which is a member of the OECD; and (e) if, but only if, an
Event of Default has occurred and is continuing, any other bank,
insurance company, commercial finance company or other financial
institution approved by the Agent, such approval not to be
unreasonably withheld, provided, in each case, that such entity is a
citizen of the United States within the meaning of Section 2 of the
Shipping Act of 1916, as amended.
Employee Benefit Plan. Any employee benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by a US
Borrower or the Parent or any ERISA Affiliate, other than a
Multiemployer Plan.
Environmental Laws. See Section 7.18(a) hereof.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single
employer with a Borrower or the Parent under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of Section 4043 of ERISA
and the regulations promulgated thereunder as to which the requirement
of notice has not been waived.
Eurocurrency Business Day. Any day on which commercial banks
are open for international business (including dealings in Dollar and
Kroner deposits) in London or such other eurodollar interbank market
as may be selected by the Agent in its sole discretion acting in good
faith.
Eurocurrency Lending Office. Initially, the Agent's head
office; thereafter, such other office of the Agent, if any, that shall
be making or maintaining Eurocurrency Rate Loans.
Eurocurrency Rate Loans. Loans or any portion thereof
bearing interest calculated by reference to the Dollar Eurocurrency
Rate or the Kroner Eurocurrency Rate.
Eurocurrency Reserve Rate. For any day with respect to any
Eurocurrency Rate Loan, the maximum rate (expressed as a decimal) at
which any lender subject thereto would be required to maintain
reserves under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor or similar regulations relating to
such reserve requirements) against "Eurocurrency Liabilities" (as that
term is used in Regulation D), if such liabilities were outstanding.
The Eurocurrency Reserve Rate shall be adjusted automatically on and
as of the effective date of any change in the Eurocurrency Reserve
Rate.
Event of Default. See Section 13 hereof.
Excess Cash Flow. For any period, the amount by which
Consolidated EBITDA for such period exceeds the sum of (i)
Consolidated Total Interest Expense for such period, plus (ii) all
scheduled principal payments on Indebtedness for such period, plus
(iii) cash tax payments for such period, plus (iv) Capital
Expenditures made during such period (other than financed Capital
Expenditures).
Existing Banks. As defined in the preamble hereto.
Existing Credit Agreement. As defined in the preamble
hereto.
Fee Letter. That certain letter agreement, dated as of
December 1, 1997, between the Parent and the Agent, as the same may be
amended, supplemented, modified or restated and in effect from time to
time.
Fronting Bank. BankBoston, N.A., acting through its London
branch, and any successor thereto appointed pursuant to Section
2.11.4.
Funded Debt. Without duplication and with respect to any
Person and as at any date of determination, the aggregate principal
amount of Indebtedness of such Person for borrowed money (other than
short-term trade credit incurred in the ordinary course of business),
the deferred purchase price of assets (other than short-term trade
credit incurred in the ordinary course of business), Reimbursement
Obligations (contingent or otherwise) in respect of Letters of Credit,
the Tender Guaranty, and Capitalized Leases.
generally accepted accounting principles. (a) When used in
Section 10, whether directly or indirectly through reference to a
capitalized term used therein, means principles that are consistent
with the principles promulgated or adopted by the Financial Accounting
Standards Board and its predecessors in effect on the Balance Sheet
Date and (b) when used in general, other than as provided above, means
such principles as in effect from time to time in the relevant
jurisdiction.
Guaranteed Pension Plan. Any employee pension benefit plan
within the meaning of Section 3(2) of ERISA maintained or contributed
to by a US Borrower or the Parent or any ERISA Affiliate the benefits
of which are guaranteed on termination in full or in part by the PBGC
pursuant to Title IV of ERISA, other than a Multiemployer Plan.
Guaranties. Collectively, the Parent Guaranty, the Marine
Assets Guaranty, the Marine Operators Guaranty, the Dutch Guaranty,
the Target Guaranty, the Saevik Supply U.K. Guaranty and any other
guaranty of any of the Obligations hereunder from the Parent or any of
its Subsidiaries to the Agent for the benefit of any of the Banks.
Guarantors. Collectively, the Parent, the US Borrowers, the
Dutch Borrower, the Target, Saevik Supply U.K., and each other
Subsidiary (direct and indirect) of the Parent which shall deliver a
guaranty of the Obligations pursuant to Section 8.14 hereof.
Indebtedness. As to any Person, without duplication, all
obligations, contingent and otherwise, that in accordance with
generally accepted accounting principles should be classified upon the
obligor's balance sheet as liabilities, or to which reference should
be made by footnotes thereto, including in any event and whether or
not so classified: (a) all debt and similar monetary obligations,
whether direct or indirect; (b) all liabilities secured by any
mortgage, pledge, security interest, lien, charge, or other
encumbrance existing on property owned or acquired subject thereto,
whether or not the liability secured thereby shall have been assumed;
and (c) all guarantees, endorsements and other contingent obligations
whether direct or indirect in respect of indebtedness of others,
including any obligation to supply funds to or in any manner to invest
in, directly or indirectly, the debtor, to purchase indebtedness, or
to assure the owner of indebtedness against loss, through an agreement
to purchase goods, supplies, or services for the purpose of enabling
the debtor to make payment of the indebtedness held by such owner or
otherwise, and the obligations, contingent and otherwise, to reimburse
the issuer in respect of any letters of credit.
Ineligible Securities. Securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System
under Section 16 of the Banking Act of 1993 (12 U.S.C. Section 24,
Seventh), as amended.
Interest Payment Date. (a) As to any Base Rate Loan, the
last day of the calendar quarter commencing with the calendar quarter
that includes the Drawdown Date thereof; and (b) as to any
Eurocurrency Rate Loan in respect of which the Interest Period is (i)
three (3) months or less, the last day of such Interest Period and
(ii) more than three (3) months, the date that is three (3) months
from the first day of such Interest Period and, in addition, the last
day of such Interest Period.
Interest Period. With respect to each Loan, (a) initially,
the period commencing on the Drawdown Date of such Loan and ending on
the last day of one of the periods set forth below, as selected by the
applicable Borrower in a Loan Request (i) for any Base Rate Loan, the
last day of the calendar quarter; and (ii) for any Eurocurrency Rate
Loan, 1, 2, 3, or 6 months; and (b) thereafter, each period commencing
on the last day of the next preceding Interest Period applicable to
such Loan and ending on the last day of one of the periods set forth
above, as selected by the applicable Borrower in a Conversion Request;
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(a) if any Interest Period with respect to a
Eurocurrency Rate Loan would otherwise end on a day that is not
a Eurocurrency Business Day, that Interest Period shall be
extended to the next succeeding Eurocurrency Business Day unless
the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurocurrency
Business Day;
(b) if any Interest Period with respect to a Base Rate
Loan would end on a day that is not a Business Day, that
Interest Period shall end on the next succeeding Business Day;
(c) if an applicable Borrower shall fail to give
notice as provided in Section 2.8, such Borrower shall be deemed
to have requested a conversion of the affected Eurocurrency Rate
Loan to a Base Rate Loan, and the continuance of all Base Rate
Loans as Base Rate Loans, as the case may be, on the last day of
the then current Interest Period with respect thereto;
(d) any Interest Period that begins on the last
Eurocurrency Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Eurocurrency Business Day of a calendar month; and
(e) any Interest Period relating to any Eurocurrency
Rate Loan that would otherwise extend beyond the Maturity Date
(or, in the case of the Dutch Term B Loan, the Term B Maturity
Date) shall end on the Maturity Date (or in the case of the
Dutch Term B Loan, the Term B Maturity Date).
Investments. All expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of stock or
Indebtedness of, or for loans, advances, capital contributions or
transfers of property to, or in respect of any guaranties (or other
commitments as described under Indebtedness), or obligations of, any
Person. In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any Investment
represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding;
(b) there shall be included as an Investment all interest accrued with
respect to Indebtedness constituting an Investment unless and until
such interest is paid; (c) there shall be deducted in respect of each
such Investment any amount received as a return of capital (but only
by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); and (d) there shall not be deducted from
the aggregate amount of Investments any decrease in the value thereof.
Kroner or NOK. Kroner in the lawful currency of Norway.
Kroner Base Rate. With respect to any Norwegian Revolver
Loan or all or any part of the Norwegian Term A Loan denominated in
Kroner and for any Interest Period relating thereto, the rate per
annum determined by the Agent to be equal to the cost to the Fronting
Bank of funding such Loan for such Interest Period.
Kroner Base Rate Loan. Any Loan or portion thereof bearing
interest calculated by reference to the Kroner Base Rate.
Kroner Equivalent. On any date of determination, with
respect to an amount denominated in Dollars, the amount of Kroner
which could be purchased with that amount of Dollars at the spot rate
of exchange quoted by the Agent in the London foreign exchange market
at or about 11:00 am (London time) on the date of determination for
the purchase of Kroner with Dollars.
Kroner Eurocurrency Rate. For any Interest Period with
respect to a Eurocurrency Rate Loan denominated in Kroner, the rate of
interest equal to (a) the rate per annum (rounded upwards to the
nearest 1/16 of one percent) at which the Agent's Eurocurrency Lending
Office is offered Kroner deposits two (2) Eurocurrency Business Days
prior to the beginning of such Interest Period in the interbank
eurocurrency market where the eurodollar and foreign currency and
exchange operations of such Eurocurrency Lending Office are
customarily conducted at or about 11:00 a.m., London time, for
delivery on the first day of such Interest Period for the number of
days comprised therein and in an amount comparable to the amount of
the Eurocurrency Rate Loan to which such Interest Period applies,
divided by (b) a number equal to 1.00 minus the Eurocurrency Reserve
Rate, if applicable.
Kroner Eurocurrency Rate Loan. Any Loan or portion thereof
bearing interest calculated by reference to the Kroner Eurocurrency
Rate.
Kroner Funding Bank. A Revolver Bank that shall have agreed
to make Norwegian Revolver Loans denominated in Kroner or a Norwegian
Term A Loan Bank that shall have agreed to make all or a portion of
the Norwegian Term A Loan to the Norwegian Borrower in Kroner, as
evidenced by such Bank having the words "Kroner Funding Bank" set
forth below its name on Schedule 1.1 hereto.
Letter of Credit. See Section 3.1.1.
Letter of Credit Application. See Section 3.1.1.
Letter of Credit Fee(s). See Section 3.6.
Letter of Credit Participation. See Section 3.1.4.
Letter of Credit Rate. At any time of determination, the
Applicable Margin on Eurocurrency Rate Loans in effect at such time.
Leverage Ratio. As at the end of any fiscal quarter, the
ratio, determined for each fiscal quarter ending through September 30,
1998, on a pro forma basis after giving effect to the Takeover as if
it had occurred on the first day of the four quarter period ending on
such date, of (a) the consolidated Funded Debt of the Parent and its
Subsidiaries at the end of the fiscal quarter of the Parent ending on
such date to (b) Consolidated EBITDA of the Parent and its
Subsidiaries for the period of four (4) consecutive fiscal quarters of
the Parent ending on such date; provided, that for purposes of
calculating the Leverage Ratio on the Closing Date, Consolidated
EBITDA shall be the sum of ((A) (Consolidated EBITDA of the Parent and
its then existing subsidiaries for the fiscal month ending on or about
September 30, 1997, multiplied by 3), plus (B) Consolidated EBITDA of
the Target and its then existing Subsidiaries for the period of the
one fiscal quarter ending on September 30, 1997), multiplied by 4; for
the purposes of calculating the Leverage Ratio for the fiscal quarter
of the Borrower ending on or about (i) December 31, 1997, Consolidated
EBITDA shall be Consolidated EBITDA of the Parent and subsidiaries, on
a pro forma basis, for the fiscal quarter ending December 31, 1997,
multiplied by 4; (ii) March 31, 1998, Consolidated EBITDA shall be
Consolidated EBITDA of the Parent and its Subsidiaries on a pro forma
basis for the period of two fiscal quarters ending March 31, 1998,
multiplied by 2, and (iii) June 30, 1998, Consolidated EBITDA shall be
Consolidated EBITDA of the Parent and its Subsidiaries on a pro forma
basis for the period of three fiscal quarters then ending multiplied
by 4/3.
Loan Account. With respect to any Norwegian Revolver Loan
and the Norwegian Term A Loan, the records or accounts kept by any
Bank with respect to such Loan.
Loan Documents. Collectively, this Agreement, the Notes, the
Letter of Credit Applications, the Letters of Credit, the Tender
Guaranty, the Security Documents, and the Fee Letter.
Loan Request. Any US Revolver Loan Request or Norwegian
Revolver Loan Request.
Loans. Collectively, the US Revolver Loans, the Norwegian
Revolver Loans, the Norwegian Term A Loan, the Dutch Term A Loan and
the Dutch Term B Loan.
London Branch. BankBoston, N.A., acting through its London
branch.
Majority Banks. As of any date, the Banks whose aggregate
Overall Percentages on such date together constitute at least fifty-
one percent (51%).
Majority Revolver Banks. As of any date, the Revolver Banks
whose aggregate Revolver Exposure constitutes at least fifty-one
percent (51%) of the aggregate Revolver Exposure of all of the
Revolver Banks.
Marine Assets. As defined in the preamble.
Marine Assets Guaranty. The Amended and Restated Guaranty,
dated as of the date hereof, executed by Marine Assets in favor of the
Agent and the Banks.
Marine Operators. As defined in the preamble.
Marine Operators Guaranty. The Amended and Restated
Guaranty, dated as of the date hereof, executed by Marine Operators in
favor of the Agent and the Banks.
Maturity Date. December 1, 2002.
Maximum Drawing Amount. The sum of (i) the maximum aggregate
amount from time to time that the beneficiaries may draw under
outstanding Letters of Credit, as such aggregate amount may be reduced
from time to time pursuant to the terms of the Letters of Credit and
(ii) the Dollar Equivalent of the face amount of the Tender Guaranty.
Multiemployer Plan. Any multiemployer plan within the
meaning of Section 3(37) of ERISA maintained or contributed to by a
Borrower, the Parent or any ERISA Affiliate.
Net Income. The consolidated net income (or deficit) of the
Parent and its Subsidiaries, after deduction of all expenses, taxes
and other proper charges, determined in accordance with generally
accepted accounting principles, after eliminating therefrom all
extraordinary nonrecurring items of income or loss.
Net Worth. With respect to any Person, the excess of Total
Assets over Total Liabilities, and less the sum of:
(a)the total book value of all assets of such Person
created or acquired after the Closing Date and properly
classified as intangible assets under generally accepted
accounting principles, including such items as good will, the
purchase price of acquired assets in excess of the fair market
value thereof, trademarks, trade names, service marks, brand
names, copyrights, patents and licenses, and rights with respect
to the foregoing; plus
(b)with respect to the Borrowers, all amounts representing
any write-up in the book value of any assets of a Borrower
resulting from a revaluation thereof subsequent to the Closing
Date; plus
(c)to the extent otherwise includable in the computation
of Net Worth, any subscriptions receivable.
Non Kroner Funding Bank. A Revolver Bank or Norwegian Term A
Bank that is not able to fund Norwegian Revolver Loans or the
Norwegian Term A Loan in Kroner. Each Non Kroner Funding Bank is
identified by having the words "Non Kroner Funding Bank" set forth
below its name on Schedule 1.1 hereto.
Norwegian Borrower. As defined in the preamble hereto.
Norwegian Closing Date. See Section 11A.
Norwegian Collateral. See Section 6.3.
Norwegian Flag Vessels. See Section 7.24(b).
Norwegian Limit. $75,000,000.
Norwegian Obligations. All Obligations of any of the Parent,
the Borrowers or the Guarantors to the Revolver Banks, the Fronting
Bank and the Norwegian Term A Banks or the Agent under or in respect
of or in connection with any of the Norwegian Revolver Loans or the
Norwegian Term A Loan and including any interest thereon, Commitment
Fees or other fees in respect thereof and including all other
obligations under any other instruments at any time evidencing any
thereof.
Norwegian Revolver Loan Request. See Section 2.6(b).
Norwegian Revolver Loans. The revolving credit loans to be
made to the Norwegian Borrower pursuant to Section 2.1.2 hereof.
Norwegian Revolver Note. See Section 2.4(b).
Norwegian Security Documents. Collectively, the Assignment
of Earnings, dated as of the Norwegian Closing Date, executed by the
Norwegian Borrower in favor of the Agent, the Assignment of
Insurances, dated as of the Norwegian Closing Date, executed by the
Norwegian Borrower in favor of the Agent, the Declaration of Pledge,
dated as of the Norwegian Closing Date, executed by the Norwegian
Borrower in favor of the Agent, the Factoring Agreement, dated as of
the Norwegian Closing Date, executed by the Norwegian Borrower in
favor of the Agent, and the Deeds of Covenants, dated as of the
Norwegian Closing Date, executed by the Norwegian Borrower in favor of
the Agent.
Norwegian Term A Banks. The Banks that have agreed to make
the Norwegian Term A Loan to the Norwegian Borrower, as evidenced by
such Bank having a positive figure beside its name in the column
entitled "Norwegian Term A Commitment" on Schedule 1.1 hereto.
Norwegian Term A Commitment. With respect to each Norwegian
Term A Bank, the amount set forth on Schedule 1.1 attached hereto as
the amount of such Norwegian Term A Bank's commitment to make a
portion of the Norwegian Term A Loan to the Norwegian Borrower on the
Norwegian Closing Date.
Norwegian Term A Loan. See Section 4.1(a).
Norwegian Term A Percentage. With respect to each Norwegian
Term A Bank, the amount set forth on Schedule 1.1 attached hereto as
such Norwegian Term A Bank's percentage of the Norwegian Term A Loan.
Norwegian Vessel Mortgage. The first preferred fleet
mortgage with respect to the Norwegian Flag Vessels, in form and
substance satisfactory to the Agent and the Banks, dated as of the
Norwegian Closing Date, as the same may be amended, supplemented,
modified or restated and in effect from time to time.
Notes. Collectively, the US Revolver Notes, the Norwegian
Revolver Note, the Norwegian Term A Notes, the Dutch Term A Notes and
the Dutch Term B Notes.
Obligations. All indebtedness, obligations and liabilities
of any of the Parent, the Borrowers or the Guarantors to any of the
Banks and the Agent, individually or collectively, existing on the
date of this Agreement or arising thereafter, direct or indirect,
joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise, arising or incurred under this
Agreement or the other Loan Documents or in respect of any of the
Loans made or Reimbursement Obligations incurred or any other
instruments at any time evidencing any thereof.
OECD. See the definition of "Eligible Assignee".
Operating Cash Flow. With respect to any Person and any
particular fiscal period, an amount equal to (a) such Person's Net
Income for such period, plus (b) all interest expense for such period,
plus (c) all income tax expense for such period, plus (d) all
depreciation and amortization charges for such period, less (e)
without duplication, the aggregate amount of cash taxes paid by such
Person with respect to such period, less (f) that portion of Capital
Expenditures made by such Person during such period for the
maintenance, repair, or dry-docking of, and inspection costs relating
to, Capital Assets.
Overall Percentage. As of any date, with respect to any
Bank, the percentage equal to (a) the sum of the aggregate principal
amount of such Bank's portion of the Norwegian Term A Loan, Dutch Term
A Loan, Dutch Term B Loan, and its Revolver Exposure divided by (b)
the sum of the aggregate principal amount of the Norwegian Term A
Loan, Dutch Term A Loan, the Dutch Term B Loan, and the aggregate
Revolver Exposure of all of the Revolver Banks in each case on such
date.
Outstanding. With respect to any Loan, the aggregate unpaid
principal thereof as of any date of determination.
Parent Guaranty. The guaranty agreement dated as of the
Closing Date, from the Parent to the Agent and each of the Banks, as
amended, supplemented, modified or restated with the consent of the
Banks and in effect from time to time.
Parent Pledge Agreements. Collectively, (i) the Stock Pledge
Agreement, in form and substance satisfactory to the Agent, dated as
of the Closing Date, between the Parent and the Agent, relating to
100% of the capital stock of the US Borrowers and (ii) the Notarial
Deed of Pledge, in form and substance satisfactory to the Agent, dated
on or about the Closing Date, among the Parent, the Agent and the
Dutch Borrower, relating to 66% of the capital stock of the Dutch
Borrower.
PBGC. The Pension Benefit Guaranty Corporation created by
Section 4002 of ERISA and any successor entity or entities having
similar responsibilities.
Perfection Certificates. The Perfection Certificates as
defined in the US Security Agreement.
Permitted Liens. Liens, security interests and other
encumbrances permitted by Section 9.2 hereof.
Person. Any individual, corporation, partnership, limited
partnership, limited liability company, limited liability partnership,
trust, unincorporated association, business, or other legal entity,
and any government or any governmental agency or political subdivision
thereof.
Pledge Agreements. Collectively, the Parent Pledge
Agreements, the Dutch Pledge Agreement, and any other share pledge
agreements or charges over shares from the Parent or any Subsidiary of
the Parent to the Agent for the benefit of any of the Banks.
Pro Forma Balance Sheet. See Section 7.4.2.
Record. The grid attached to a Note, or the continuation of
such grid, or any other similar record, including computer records,
maintained by any Bank with respect to any Loan referred to in such
Note.
Reimbursement Obligation. The Borrowers' obligation to
reimburse (i) the Agent and the Revolver Banks on account of any
drawing under any Letter of Credit as provided in Section 3.2 and (ii)
London Branch on account of any payment made under the Tender
Guaranty.
Requisite Banks. As of any date, the Revolver Banks and
Norwegian Term A Banks whose sum of (i) Revolver Exposure plus (ii)
the principal amount of the Norwegian Term A Loan owing to such Bank
constitutes at least fifty-one percent (51%) of the sum of (i) the
aggregate Revolver Exposure of all of the Revolver Banks plus (ii) the
aggregate principal amount of the Norwegian Term A Loan outstanding on
such date.
Restricted Subsidiary. A Subsidiary of the Parent designated
as a "Restricted Subsidiary" under the Indentures relating to the
Senior Notes and the Additional Senior Notes.
Revolver Banks. The Banks that have agreed (i) to make US
Revolver Loans to, and to participate in the risk associated with
Letters of Credit and the Tender Guaranty issued for the account of,
the US Borrowers, (ii) to make Norwegian Revolver Loans denominated in
Dollars to the Norwegian Borrower, (iii) in the case of Kroner Funding
Banks, to fund Norwegian Revolver Loans denominated in Kroner to the
Norwegian Borrower, and (iv) in the case of Non Kroner Funding Banks,
to participate in the risk associated with Norwegian Revolver Loans
denominated in Kroner made by the Fronting Bank to the Norwegian
Borrower, as evidenced by such Bank having a positive figure beside
its name in the column entitled "Revolver Commitments" on Schedule 1.1
hereto.
Revolver Commitment. With respect to each Revolver Bank, the
amount set forth on Schedule 1.1 attached hereto as the amount of such
Revolver Bank's commitment to make Revolver Loans to, and to
participate in the issuance, extension and renewal of Letters of
Credit and the Tender Guaranty for the account of, the US Borrowers
and the Norwegian Borrower, as the same may be reduced from time to
time; or if such commitment is terminated pursuant to the provisions
hereof, zero.
Revolver Exposure. With respect to any Revolver Bank at any
date of determination (a) prior to the termination of the Revolver
Commitments, such Revolver Bank's Revolver Commitment, and (b) after
the termination of the Revolver Commitments, the sum of (i) the
aggregate principal amount of the US Revolver Loans and Norwegian
Revolver Loans of such Revolver Bank plus (ii) the aggregate amount of
such Revolver Bank's Letter of Credit Participations and Tender
Guaranty Participations.
Revolver Loans. The US Revolver Loans and the Norwegian
Revolver Loans.
Revolver Percentage. With respect to each Revolver Bank, the
amount set forth on Schedule 1.1 attached hereto as such Revolver
Bank's percentage of the Total Revolver Commitment.
Saevik Management. Saevik Management AS, a Norwegian limited
liability company with company registration number 952655140.
Saevik Supply U.K.. Saevik Supply (UK) Limited, a private
company limited by shares incorporated England and Wales.
Saevik Supply U.K. Guaranty. The Guaranty, dated as of the
Norwegian Closing Date, made by Saevik Supply U.K. in favor of the
Agent and the Banks.
Section 20 Subsidiary. A Subsidiary of the bank holding
company controlling any Bank, which Subsidiary has been granted
authority by the Federal Reserve Board to underwrite and deal in
certain Ineligible Securities.
Security Agreements. Collectively, the US Security
Agreement, the Target Security Documents, the Norwegian Security
Documents, and any other security agreement from the Parent or any
Subsidiary of the Parent to the Agent for the benefit of any of the
Banks.
Security Documents. The Security Agreements, the Vessel
Mortgages, the Guaranties, the Pledge Agreements, all security
agreements and guaranties delivered to the Agent and the Banks
pursuant to Section 9.3(e) hereof, and all instruments and documents
required to be delivered pursuant thereto, in each case, as the same
may be amended and in effect from time to time.
Senior Notes. The 8 1/2% Senior Notes due 2005 of the Parent,
in an aggregate principal amount not to exceed $110,000,000,
guaranteed by the US Borrowers and issued pursuant to such
documentation as shall have been previously delivered to, and approved
by, the Agent.
Subsidiary. Any corporation, association, trust, or other
business entity of which the designated parent shall at any time own
directly or indirectly through a Subsidiary or Subsidiaries at least a
majority (by number of votes) of the outstanding voting stock or other
voting equity interests.
SWATH Subsidiary. Trico Marine International, Inc., the
special purpose Subsidiary of the Parent which was formed for the
purpose of the ownership and operation of the SWATH Vessel.
SWATH Vessel. The small waterline area twin hull crew boat
to be built for the SWATH Subsidiary.
Takeover. The purchase by the Dutch Borrower of not less
than ninety percent (90%) of the share capital of the Target pursuant
to the Takeover Documents.
Takeover Documents. Collectively, (a) the Tender Offer to
Acquire all Outstanding Shares in the Target made by the Dutch
Borrower dated October 27, 1997, (b) any amendments to the Tender
Offer as notified to the Oslo Stock Exchange, (c) any mandatory offer
made to the shareholders of the Target pursuant to Section 1-5 of the
Norwegian Securities Trading Act 1985, and (d) all agreements and
instruments required to be entered into or delivered by the Parent or
the Dutch Borrower pursuant to such tender offer in order to complete
the purchase of the shares in the Target, in each case in the form
delivered to the Agent on or prior to the Closing Date.
Target. Saevik Supply ASA, a Norwegian public joint stock
company with company registration number 976853938.
Target Guaranty. The Guaranty Agreement, in form and
substance satisfactory to the Agent, dated as of the Norwegian Closing
Date, made by the Target in favor of the Agent and the Banks.
Target Pledge Agreement. The Pledge of Shares, in form and
substance satisfactory to the Agent, dated as of the Norwegian Closing
Date, between the Target and the Agent, with respect to the shares of
capital stock of the Norwegian Borrower.
Target Security Documents. Collectively, the Assignment of
Earnings, dated as of the Norwegian Closing Date, executed by the
Target in favor of the Agent, the Factoring Agreement, dated as of the
Norwegian Closing Date, executed by the Target in favor of the Agent,
and the Subordination Statement, dated as of the Norwegian Closing
Date, executed by the Target in favor of the Agent.
Tender Guaranty. The bank guaranty issued by London Branch
in favor of the shareholders of the Target, in the maximum face amount
of NOK 10,180,000 to guaranty the obligations of the Dutch Borrower to
purchase the shares of capital stock of the Target which are not
purchased in connection with the Takeover.
Tender Guaranty Fee(s). See Section 3.6.
Tender Guaranty Participation. See Section 3.1.4.
Term B Maturity Date. November 30, 2003.
Total Assets. All assets of a Person determined in
accordance with generally accepted accounting principles.
Total Debt Service. For any fiscal period of any Person, an
amount equal to (a) the Total Financial Obligations of such Person for
such period plus (b) the Total Interest Expense of such Person for
such period, in each case determined in accordance with generally
accepted accounting principles consistently applied.
Total Financial Obligations. With respect to any fiscal
period and any Person, an amount equal to the sum of all principal
payments (including the principal portion of Capitalized Lease
payments) on Funded Debt that become due and payable or that are to
become due and payable during such fiscal period pursuant to any
agreement or instrument to which such Person is a party. Demand
obligations shall be deemed to be due and payable during any fiscal
period during which such obligations are outstanding.
Total Interest Expense. For any period and with respect to
any Person, the aggregate amount of interest required to be paid in
cash by such Person during such period on all Indebtedness of such
Person outstanding during all or any part of such period, whether such
interest was or is required to be reflected as an item of expense or
capitalized, including payments consisting of interest in respect of
Capitalized Leases and including commitment fees, agency fees,
facility fees and similar fees or expenses in connection with the
borrowing of money, but, with respect to the Borrowers, excluding the
Closing Fee.
Total Liabilities. All liabilities of any Person determined
in accordance with generally accepted accounting principles.
Total Revolver Commitment. The sum of the Revolver
Commitments of the Revolver Banks, as in effect from time to time.
Type. As to any Loan, its nature as a Base Rate Loan or a
Eurocurrency Rate Loan.
UK Flag Vessels. See Section 7.24(b).
UK Vessel Mortgage. The first preferred fleet mortgage with
respect to the UK Flag Vessels, in form and substance satisfactory to
the Agent and the Banks, dated as of the Norwegian Closing Date, as
the same may be amended, supplemented, modified or restated and in
effect from time to time.
Uniform Customs. With respect to any Letter of Credit, the
Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, or any
successor version thereof adopted by the Agent in the ordinary course
of its business as a letter of credit issuer and in effect at the time
of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement
Obligation for which the US Borrowers do not reimburse the Agent,
London Branch and the Revolver Banks on the date specified in, and in
accordance with, Section 3.2.
US Borrowers. As defined in the preamble hereto.
US Collateral. See Section 6.1.
US Flag Vessels. See Section 7.24(a).
US Revolver Loan Request. See Section 2.6(a).
US Revolver Loans. The revolving credit loans to be made by
the Revolver Banks to the US Borrowers pursuant to Section 2.1.1
hereof.
US Revolver Note. See Section 2.4(a).
US Security Agreement. The US Security Agreement dated as of
the Closing Date among the US Borrowers and the Agent, as the same may
be amended, supplemented, modified or restated and in effect from time
to time.
US Vessel Mortgage. The first preferred vessel mortgage with
respect to the US Flag Vessels, in form and substance satisfactory to
the Agent and the Banks, dated as of the Closing Date, as the same may
be amended, supplemented, modified or restated and in effect from time
to time.
Vanuatu Vessel Mortgage. The first preferred vessel mortgage
with respect to the Vanuatu Flag Vessels, in form and substance
satisfactory to the Agent and the Banks, dated as of the Closing Date,
as the same may be amended, supplemented, modified or restated and in
effect from time to time.
Vessel Mortgages. Collectively, the US Vessel Mortgage, the
Vanuatu Vessel Mortgage, the Norwegian Vessel Mortgage, the UK Vessel
Mortgage and any other vessel mortgage from any of the Borrowers or
any other Subsidiary of the Parent to the Agent for the benefit of any
of the Banks.
Vessel(s). Collectively, all vessels owned by any of the
Borrowers, from time to time, including, without limitation those
vessels listed on Schedules 7.24(a) and 7.24(b), and individually, any
of such vessels.
Section 1.2. Rules of Interpretation.
(a)A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented
from time to time in accordance with its terms and the terms of
this Agreement, (b) the singular includes the plural and the
plural includes the singular, (c) a reference to any law
includes any amendment or modification to such law, (d) a
reference to any Person includes its permitted successors and
permitted assigns, (e) accounting terms not otherwise defined
herein have the meanings assigned to them by generally accepted
accounting principles applied on a consistent basis by the
accounting entity to which they refer, (f) the words "include",
"includes" and "including" are not limiting, (g) all terms not
specifically defined herein or by generally accepted accounting
principles, which terms are defined in the Uniform Commercial
Code as in effect in Massachusetts, have the meanings assigned
to them therein, (h) reference to a particular "Section " refers
to that section of this Agreement unless otherwise indicated,
(i) the words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any
particular section or subdivision of this Agreement, and (j) the
phrase "jointly and severally" as used herein shall mean, for
purposes of Louisiana law, "jointly and severally and
solidarily".
Section 2. THE REVOLVING CREDIT FACILITIES.
Section 2.1. Commitment to Lend.
Section 2.1.1 US Revolver Loans. Subject to the terms
and conditions set forth in this Agreement, each of the Revolver
Banks severally agrees to lend to the US Borrowers and the US
Borrowers may borrow, repay, and reborrow from time to time
between the Closing Date and the Maturity Date upon notice by
the US Borrowers to the Agent given in accordance with Section
2.6(a), such sums in Dollars as are requested by the US
Borrowers up to a maximum aggregate principal amount outstanding
(after giving effect to all amounts requested) at any one time
equal to such Bank's Revolver Commitment, minus such Bank's
Revolver Percentage of the sum of the Maximum Drawing Amount and
all Unpaid Reimbursement Obligations, provided that the sum of
the outstanding amount of the US Revolver Loans (after giving
effect to all amounts requested) plus the Dollar Equivalent of
the outstanding amount of the Norwegian Revolver Loans plus the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations
shall not at any time exceed the Total Revolver Commitment. The
US Revolver Loans shall be made pro rata in accordance with each
Revolver Bank's Revolver Percentage. Each request for a US
Revolver Loan hereunder shall constitute a representation and
warranty by the US Borrowers that the conditions set forth in
Section 11 and Section 12 hereof, in the case of the initial US
Revolver Loans to be made on the Closing Date, and Section 12
hereof, in the case of all other US Revolver Loans, have been
satisfied on the date of such request. The parties hereto
hereby agree that, on and as of the Closing Date, the loans
outstanding under the Existing Credit Agreement shall become US
Revolver Loans hereunder.
Section 2.1.2 Norwegian Revolver Loans. Subject to the
terms and conditions set forth in this Agreement, the Revolver
Banks agree to lend to the Norwegian Borrower and the Norwegian
Borrower may borrow, repay, and reborrow from time to time
between the Norwegian Closing Date and the Maturity Date upon
notice by the Norwegian Borrower to the Agent given in
accordance with Section 2.6(b), such sums in Dollars or Kroner
as are requested by the Norwegian Borrower up to a maximum
aggregate principal amount outstanding (after giving effect to
all amounts requested) at any one time equal to the Norwegian
Limit or the Kroner Equivalent thereof; provided that (after
giving effect to all amounts requested) the sum of the
outstanding amount of (a) the Norwegian Revolver Loans
denominated in Dollars, plus (b) the Dollar Equivalent of the
Norwegian Revolver Loans denominated in Kroner, plus (c) the
outstanding amount of the US Revolver Loans plus (d) the Maximum
Drawing Amount plus (e) all Unpaid Reimbursement Obligations
shall not at any time exceed the Total Revolver Commitment; and
provided further, that with respect to Norwegian Revolver Loans
denominated in Kroner, the Revolver Commitment Percentage of
each Non Kroner Funding Bank shall be fronted by the Fronting
Bank (it being understood that a Non Kroner Funding Bank shall
not be obligated to fund Norwegian Revolver Loans in Kroner, and
that each Non Kroner Funding Bank hereby agrees to participate
in the risk associated with such Norwegian Revolver Loan in
accordance with Section 2.11). Each request for a Norwegian
Revolver Loan hereunder shall constitute a representation and
warranty by the Norwegian Borrower that the conditions set forth
in Section 11, Section 11A and Section 12 hereof, in the case of
the initial Norwegian Revolver Loans to be made on the Norwegian
Closing Date, and Section 12 hereof, in the case of all other
Norwegian Revolver Loans, have been satisfied on the date of
such request.
Section 2.2. Commitment Fee. The Borrowers hereby jointly
and severally agree to pay to the Agent for the accounts of the
Revolver Banks in accordance with their respective Revolver
Percentages a commitment fee (the "Commitment Fee") at the applicable
Commitment Fee Rate per annum on the average daily amount during each
calendar quarter or portion thereof from Closing Date to the Maturity
Date by which the Total Revolver Commitment exceeds the sum of the
outstanding principal amount of US Revolver Loans, plus the Dollar
Equivalent of the outstanding principal amount of Norwegian Revolver
Loans denominated in Kroner, plus the outstanding principal amount of
Norwegian Revolver Loans denominated in Dollars, plus the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations. The
Commitment Fee shall be payable quarterly in arrears on the last day
of each calendar quarter for the immediately preceding calendar
quarter commencing on the first such date following the Closing Date,
with a final payment on the Maturity Date or any earlier date on which
the Revolver Commitments shall terminate.
Section 2.3. Reduction of Commitments.
(a) The Borrowers shall have the right at any time and from
time to time on or before the Maturity Date upon five (5) Business
Days' prior written notice to the Agent to reduce by $10,000,000 or a
larger integral multiple of $5,000,000 or terminate entirely the
unborrowed portion of the Total Revolver Commitment, whereupon the
Revolver Commitments of the Revolver Banks shall be reduced pro rata
in accordance with their respective Revolver Percentages of the amount
specified in such notice or, as the case may be, terminated. Promptly
after receiving any notice of the Borrowers delivered pursuant to this
Section 2.3(a), the Agent will notify the Revolver Banks of the
substance thereof. Upon the effective date of any such reduction or
termination, the Borrowers shall pay to the Agent for the respective
accounts of the Revolver Banks the full amount of any Commitment Fee
then accrued on the amount of the reduction, provided that so long as
the Total Revolver Commitment is not terminated entirely, the
Borrowers may pay any such accrued Commitment Fee on the last Business
Day of the then-current fiscal quarter.
(b) No reduction or termination of the Total Revolver
Commitment once made may be revoked; the portion of the Total Revolver
Commitment reduced or terminated may not be reinstated; and amounts in
respect of such reduced or terminated portion may not be reborrowed.
(c) Promptly after the effectiveness of any partial
reduction in the Total Revolver Commitment pursuant to this Section
2.3, the Agent shall distribute to each Bank an updated Schedule 1.1
reflecting such reduction.
Section 2.4. The Revolver Notes; Loan Accounts.
(a) The US Revolver Loans shall be evidenced by separate
amended and restated promissory notes of the US Borrowers in
substantially the form of Exhibit A-1 hereto (each a "US Revolver
Note"), dated as of the Closing Date and completed with appropriate
insertions. One US Revolver Note shall be payable to the order of
each Revolver Bank in a principal amount equal to such Bank's Revolver
Commitment or, if less, the outstanding amount of all US Revolver
Loans made by such Revolver Bank, plus interest accrued thereon, as
set forth below. The US Borrowers irrevocably authorize each Revolver
Bank to make or cause to be made, at or about the time of the Drawdown
Date of any US Revolver Loan or at the time of receipt of any payment
of principal on such Bank's US Revolver Note, an appropriate notation
on such Bank's Record with respect to such Note reflecting the making
of such US Revolver Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the US Revolver Loans set forth on
such Bank's Record with respect to such Note shall be prima facie
evidence of the principal amount thereof owing and unpaid to such
Bank, but the failure to record, or any error in so recording, any
such amount on such Bank's Record shall not limit or otherwise affect
the joint and several obligations of the US Borrowers hereunder or
under any US Revolver Note to make payments of principal of or
interest on any US Revolver Note when due.
(b) The Norwegian Revolver Loans and the Obligations of the
Norwegian Borrower in respect thereof shall be evidenced by this
Agreement and the Loan Account maintained by each Revolver Bank with
respect to the Norwegian Revolver Loans made by such Bank. The
Norwegian Borrower irrevocably authorizes each Revolver Bank and the
Fronting Bank to make or cause to be made, at or about the time of the
Drawdown Date of any Norwegian Revolver Loan or at the time of receipt
of any payment of principal on such Norwegian Revolver Loan, an
appropriate notation in such Loan Account reflecting the making of
such Norwegian Revolver Loan or (as the case may be) the receipt of
such payment. The outstanding amount of the Norwegian Revolver Loans
set forth in such Loan Account shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Bank, but the
failure to record, or any error in so recording, any such amount in
such Loan Account shall not limit or otherwise affect the obligation
of the Norwegian Borrower hereunder to make payments of principal of,
or interest on, the Norwegian Revolver Loans when due. The Norwegian
Borrower hereby irrevocably and unconditionally promises to pay the
Norwegian Revolver Loans in accordance with the terms hereof.
Section 2.5. Interest on Loans. Except as otherwise
provided in Section 5.8 hereof,
(a) Each US Revolver Loan shall bear interest at the rate
per annum equal to (i) the Dollar Base Rate plus the Applicable Margin
then applicable to Base Rate Loans, in the case of US Revolver Loans
that are Base Rate Loans, and (ii) the Dollar Eurocurrency Rate plus
the Applicable Margin then applicable to Eurocurrency Rate Loans, in
the case of US Revolver Loans that are Eurocurrency Rate Loans.
(b) Each Norwegian Revolver Loan shall bear interest at the
rate per annum equal to (i) the Dollar Base Rate plus the Applicable
Margin then applicable to Dollar Base Rate Loans, in the case of
Norwegian Revolver Loans that are Base Rate Loans denominated in
Dollars, (ii) subject to the immediately succeeding sentence, the
Kroner Base Rate plus the Applicable Margin then applicable to Kroner
Base Rate Loans, in the case of Norwegian Revolver Loans that are Base
Rate Loans denominated in Kroner, (iii) the Dollar Eurocurrency Rate
plus the Applicable Margin then applicable to Eurocurrency Rate Loans,
in the case of Norwegian Revolver Loans that are Eurocurrency Loans
denominated in Dollars, and (iv) the Kroner Eurocurrency Rate plus the
Applicable Margin then applicable to Eurocurrency Rate Loans, in the
case of Norwegian Revolver Loans that are Eurocurrency Loans
denominated in Kroner. The parties hereto hereby agree that, except
as provided in Section 5.10, Norwegian Revolver Loans denominated in
Kroner shall be Kroner Eurocurrency Rate Loans.
(c) The US Borrowers jointly and severally promise to pay
interest on the outstanding amount of the US Revolver Loans on each
Interest Payment Date with respect thereto. The Norwegian Borrower
promises to pay interest on the outstanding amount of the Norwegian
Revolver Loans on each Interest Payment Date with respect thereto.
(d) Any change in the interest rate resulting from a change
in the Dollar Base Rate or the Kroner Base Rate is to be effective at
the beginning of the day of such change in the Dollar Base Rate or
Kroner Base Rate, as the case may be. The Agent will give the Banks
and the Borrowers prompt notice in writing of any change in the Dollar
Base Rate or the Kroner Base Rate, as the case may be.
Section 2.6. Requests for Revolver Loans.
(a) The US Borrowers shall give to the Agent written notice
in the form of Exhibit B-1 hereto (or telephonic notice confirmed in a
writing in the form of Exhibit B-1 hereto) of each US Revolver Loan
requested hereunder (a "US Revolver Loan Request") no less than (a)
one (1) Business Day prior to any Drawdown Date of any US Revolver
Loan that is a Base Rate Loan or (b) three (3) Eurocurrency Business
Days prior to any Drawdown Date of any US Revolver Loan that is a
Eurocurrency Rate Loan. Each such notice shall specify (i) the
principal amount in Dollars of the US Revolver Loan requested, (ii)
the proposed Drawdown Date of such US Revolver Loan, (iii) the
Interest Period for such US Revolver Loan, and (iv) the Type of such
US Revolver Loan. Promptly upon receipt of any such notice, the Agent
shall notify each of the Revolver Banks thereof. Each such notice
shall be irrevocable and binding on the US Borrowers and shall
obligate the US Borrowers to accept the US Revolver Loan requested
from the Revolver Banks on the proposed Drawdown Date thereof. Each
US Revolver Loan Request shall be in a minimum aggregate amount of
$2,000,000 or a larger integral multiple of $250,000.
(b) The Norwegian Borrower shall give to the Agent written
notice in the form of Exhibit B-2 hereto (or telephonic notice
confirmed in a writing in the form of Exhibit B-2 hereto) of each
Norwegian Revolver Loan requested hereunder (a "Norwegian Revolver
Loan Request") no less than (a) one (1) Business Day prior to any
Drawdown Date of any Norwegian Revolver Loan that is a Base Rate Loan
or (b) three (3) Eurocurrency Business Days prior to any Drawdown Date
of any Norwegian Revolver Loan that is a Eurocurrency Rate Loan. Each
such notice shall specify (i) the principal amount of the Norwegian
Revolver Loan requested, (ii) the proposed Drawdown Date of such
Norwegian Revolver Loan, (iii) the Interest Period for such Norwegian
Revolver Loan, (iv) the Type of such Norwegian Revolver Loan, and (v)
whether such Norwegian Revolver Loan is to be denominated in Dollars
or Kroner. Promptly upon receipt of any such notice, the Agent shall
notify each of the Revolver Banks thereof. Each such notice shall be
irrevocable and binding on the Norwegian Borrower and shall obligate
the Norwegian Borrower to accept the Norwegian Revolver Loan requested
from the Revolver Banks on the proposed Drawdown Date thereof. Each
Norwegian Revolver Loan Request with respect to an amount denominated
in Dollars shall be in a minimum aggregate amount of $2,000,000 or a
larger integral multiple of $250,000, and each Norwegian Revolver Loan
Request with respect to an amount denominated in Kroner shall be in a
minimum aggregate amount of NOK 15,000,000 or a larger integral
multiple of NOK 2,000,000.
Section 2.7. US Revolver Loans to Cover Reimbursement
Obligations. Notwithstanding the notice and minimum amount
requirements set forth in Section 2.6, the Agent shall, unless
otherwise instructed by the Majority Revolver Banks and subject to the
satisfaction of the conditions set forth herein, make US Revolver
Loans to the US Borrowers on the date that any draft presented under
any Letter of Credit is honored by the Agent, or any date on which the
Agent otherwise makes a payment with respect thereto, or on any date
on which London Branch makes any payment on the Tender Guaranty in an
amount sufficient to pay in full the obligations of the US Borrowers
under Section 3.2 in respect of the honor of such draft or the making
of such payment. The US Borrowers hereby request and authorize the
Agent to make from time to time such US Revolver Loans by means of
appropriate entries in the books and records of the Agent and to
notify the Revolver Banks of the date and amount of any such US
Revolver Loans. The US Borrowers acknowledge and agree that the
making of such US Revolver Loans shall, in each case, be subject in
all respects to the provisions of this Agreement as if they were US
Revolver Loans requested pursuant to a US Revolver Loan Request,
including the limitations set forth in Section 2.1.1 and the
requirement that the applicable provisions of Section 12 be
satisfied. Absent manifest error on the part of the Agent, all
actions taken by the Agent pursuant to the provisions of this Section
2.7 shall be conclusive and binding on the US Borrowers. Loans made
pursuant to this Section 2.7 shall be Base Rate Loans (subject to
conversion pursuant to Section 2.8 hereof) denominated in Dollars and
shall bear interest at the rate provided for US Revolver Loans in
Section 2.5(a) hereof. Each of the Revolver Banks hereby acknowledges
and agrees that a US Revolver Loan made by the Agent pursuant to this
Section 2.7 shall (i) be subject in all respects to the provisions of
this Agreement (including, without limitation, Section 2.9 hereof) and
(ii) obligate each Revolver Bank to advance to the Agent the amount of
such Revolver Bank's Revolver Percentage of such US Revolver Loan.
Section 2.8. Election of Eurocurrency Rate; Notice of
Election; Interest Periods; Minimum Amounts.
(a) At each Borrower's option, so long as no Event of
Default has occurred and is then continuing, such Borrower may (i)
elect to convert any Base Rate Loan or a portion thereof to a
Eurocurrency Rate Loan, (ii) at the time of any Loan Request specify
that such requested Loan shall be a Eurocurrency Rate Loan, or (iii)
upon expiration of the applicable Interest Period, elect to maintain
an existing Eurocurrency Rate Loan as such, provided in each case that
the applicable Borrower shall give notice thereof to the Agent
pursuant to Section 2.8(b). Upon determining any Dollar Eurocurrency
Rate or Kroner Eurocurrency Rate, the Agent shall forthwith provide
notice thereof to the applicable Borrower(s) and the Banks, and each
such notice to such Borrower(s) shall be considered prima facie
correct and binding, absent manifest error.
(b) Three (3) Eurocurrency Business Days prior to the
making of any Eurocurrency Rate Loan or the conversion of any Base
Rate Loan to a Eurocurrency Rate Loan, or, in the case of an
outstanding Eurocurrency Rate Loan, the expiration date of the
applicable Interest Period, the applicable Borrower shall give written
notice to the Agent, not later that (i) 12:00 noon (Boston time), in
the case of US Revolver Loans and (ii) 12:00 noon (London time), in
the case of all other Loans of its election pursuant to Section
2.8(a). Each such notice delivered to the Agent shall specify the
aggregate principal amount of applicable Loans to be borrowed or
maintained as or converted to Eurocurrency Rate Loans and the
requested duration of the Interest Period that will be applicable to
such Eurocurrency Rate Loan, and shall be irrevocable and binding upon
such Borrower. If any Borrower shall fail to give the Agent notice of
its election hereunder, together with all of the other information
required by this Section 2.8(b), with respect to any Loan, whether at
the end of an Interest Period or otherwise, such Loan shall be deemed
a Base Rate Loan. The Agent shall promptly notify the Banks in
writing (or by telephone confirmed in writing or by facsimile) of any
such election.
(c) Notwithstanding anything herein to the contrary, no
Borrower may specify an Interest Period with respect to all or any
portion of any Loan (other than the Dutch Term B Loan) that would
extend beyond the Maturity Date, and the Dutch Borrower may not
specify an Interest Period with respect to all or any portion of the
Dutch Term B Loan that would extend beyond the Term B Maturity Date.
(d) No conversion of Loans pursuant to this Section 2.8 may
result in a Eurocurrency Rate Loan denominated in Dollars with a
principal amount less than $2,000,000 or a Eurocurrency Rate Loan
denominated in Kroner with a principal amount of less than NOK
15,000,000.
Section 2.9. Funds for US Revolver Loans.
Section 2.9.1. Funding Procedures. Not later than 11
o'clock a.m. (Boston time) on (i) the proposed Drawdown Date of
any US Revolver Loans, (ii) the date that any draft presented
under any Letter of Credit is honored by the Agent, or on any
date on which the Agent otherwise makes payment with respect
thereto, and in connection therewith the Agent makes US Revolver
Loans on behalf of the Revolver Banks to the US Borrowers
pursuant to Section 2.7 hereof, or (iii) the date on which
London Branch makes payment with respect to the Tender Guaranty,
and in connection therewith the Agent makes US Revolver Loans on
behalf of the Revolver Banks to the US Borrowers pursuant to
Section 2.7 hereof, each of the Revolver Banks will make
available to the Agent, at 100 Federal Street, Boston,
Massachusetts 02110, in immediately available funds, the amount
of such Bank's Revolver Percentage of such US Revolver Loans
made or to be made on such date. Upon receipt from each
Revolver Bank of such amount, and upon receipt of the documents
required by Section Section 11 and 12 hereof and the
satisfaction of the other conditions set forth therein, to the
extent applicable, the Agent will make available to the US
Borrowers the aggregate amount of such US Revolver Loans made
available to the Agent by the Revolver Banks. The failure or
refusal of any Revolver Bank to make available to the Agent at
the aforesaid time and place on any Drawdown Date the amount of
its Revolver Percentage of the requested US Revolver Loans shall
not relieve any other Revolver Bank from its several obligation
hereunder to make available to the Agent the amount of such
other Bank's Revolver Percentage of any requested US Revolver
Loans.
Section 2.9.2. Advances by Agent. The Agent may, unless
notified to the contrary by any Revolver Bank prior to a
Drawdown Date of a US Revolver Loan, assume that such Revolver
Bank has made available to the Agent on such Drawdown Date the
amount of such Bank's Revolver Percentage of the US Revolver
Loans to be made on such Drawdown Date, and the Agent may (but
it shall not be required to), in reliance upon such assumption,
make available to the US Borrowers a corresponding amount. If
any Revolver Bank makes available to the Agent such amount on a
date after such Drawdown Date, such Bank shall pay to the Agent
on demand an amount equal to the product of (a) the average
computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Agent for federal
funds acquired by the Agent during each day included in such
period, times (b) the amount of such Revolver Bank's Revolver
Percentage of such US Revolver Loans, times (c) a fraction, the
numerator of which is the number of days that shall have elapsed
from and including such Drawdown Date to the date on which the
amount of such Bank's Revolver Percentage of such US Revolver
Loans shall become immediately available to the Agent, and the
denominator of which is 365. A statement of the Agent submitted
to such Revolver Bank with respect to any amounts owing under
this paragraph shall be prima facie evidence of the amount due
and owing to the Agent by such Revolver Bank. If the amount of
such Revolver Bank's Revolver Percentage of such US Revolver
Loans is not made available to the Agent by such Revolver Bank
within three (3) Business Days following such Drawdown Date, the
Agent shall be entitled to recover such amount from the US
Borrowers on demand, with interest thereon at the rate per annum
applicable to the US Revolver Loans made on such Drawdown Date.
Section 2.10. Funding Procedures for Norwegian Revolver
Loans.
Section 2.10.1. Funding Procedures.
(a)Norwegian Revolver Loans Denominated in
Dollars. Not later than 12:00 noon (London time) on
the proposed Drawdown Date of any Norwegian Revolver
Loans denominated in Dollars, each of the Revolver
Banks will make available to the Agent, at 39
Victoria Street, London SW1H OED, England, in
immediately available funds, the amount of such
Bank's Revolver Percentage of such Norwegian Revolver
Loans made or to be made on such date. Upon receipt
from each such Revolver Bank of such amount, and upon
receipt of the documents required by Section Section
11 and 12 hereof and the satisfaction of the other
conditions set forth therein, to the extent
applicable, the Agent will make available to the
Norwegian Borrower the aggregate amount of such
Norwegian Revolver Loans made available to the Agent
by the Revolver Banks. The failure or refusal of any
Revolver Bank to make available to the Agent at the
aforesaid time and place on any Drawdown Date the
amount of its Revolver Percentage of such requested
Norwegian Revolver Loans shall not relieve any other
Revolver Bank from its several obligation hereunder
to make available to the Agent the amount of such
other Bank's Revolver Percentage of such Norwegian
Revolver Loans.
(b)Norwegian Revolver Loans Denominated in
Kroner. Not later than 12:00 noon (London time) on
the proposed Drawdown Date of any Norwegian Revolver
Loans denominated in Kroner, (i) each of the Revolver
Banks which are Kroner Funding Banks will make
available to the Agent, at 39 Victoria Street, London
SW1H OED, England, in immediately available funds,
the amount of such Bank's Revolver Percentage of such
Norwegian Revolver Loans made or to be made on such
date and (ii) the Fronting Bank shall make available
to the Agent at such address the amount of such
Norwegian Revolver Loans made or to be made on such
date corresponding to the Revolver Percentages of the
Non Kroner Funding Banks. Upon receipt from each
such Revolver Bank and the Fronting Bank of such
amount, and upon receipt of the documents required by
Section Section 11 and 12 hereof and the satisfaction
of the other conditions set forth therein, to the
extent applicable, the Agent will make available to
the Norwegian Borrower the aggregate amount of such
Norwegian Revolver Loans made available to the Agent
by the Kroner Funding Banks and the Fronting Bank.
The failure or refusal of any Kroner Funding Bank or
the Fronting Bank to make available to the Agent at
the aforesaid time and place on any Drawdown Date the
amount of its Revolver Percentage of such requested
Norwegian Revolver Loans shall not relieve any other
Kroner Funding Bank or the Fronting Bank from its
several obligation hereunder to make available to the
Agent the amount of such other Kroner Funding Bank's
Revolver Percentage or, with respect to the Fronting
Bank, the Revolver Percentages of the Non Kroner
Funding Banks, of such Norwegian Revolver Loans.
Section 2.10.2. Advances by Agent.
(a)Norwegian Revolver Loans Denominated in
Dollars. The Agent may, unless notified to the
contrary by any Revolver Bank prior to a Drawdown
Date of a Norwegian Revolver Loan denominated in
Dollars, assume that such Revolver Bank has made
available to the Agent on such Drawdown Date the
amount of such Bank's Revolver Percentage of such
Norwegian Revolver Loans to be made on such Drawdown
Date, and the Agent may (but it shall not be required
to), in reliance upon such assumption, make available
to the Norwegian Borrower a corresponding amount. If
any Revolver Bank makes available to the Agent such
amount on a date after such Drawdown Date, such Bank
shall pay to the Agent on demand an amount equal to
the product of (a) the average computed for the
period referred to in clause (c) below, of the
weighted average interest rate paid by the Agent for
funds acquired by the Agent during each day included
in such period, times (b) the amount of such Revolver
Bank's Revolver Percentage of such Norwegian Revolver
Loans, times (c) a fraction, the numerator of which
is the number of days that shall have elapsed from
and including such Drawdown Date to the date on which
the amount of such Bank's Revolver Percentage of such
Norwegian Revolver Loans shall become immediately
available to the Agent, and the denominator of which
is 360. A statement of the Agent submitted to such
Revolver Bank with respect to any amounts owing under
this paragraph shall be prima facie evidence of the
amount due and owing to the Agent by such Revolver
Bank. If the amount of such Revolver Bank's Revolver
Percentage of such Norwegian Revolver Loans is not
made available to the Agent by such Revolver Bank
within three (3) Business Days following such
Drawdown Date, the Agent shall be entitled to recover
such amount from the Norwegian Borrower on demand,
with interest thereon at the rate per annum
applicable to the Norwegian Revolver Loans made on
such Drawdown Date.
(b)Norwegian Revolver Loans Denominated in
Kroner. The Agent may, unless notified to the
contrary by any Kroner Funding Bank or the Fronting
Bank prior to a Drawdown Date of a Norwegian Revolver
Loan denominated in Kroner, assume that (i) such
Kroner Funding Bank has made available to the Agent
on such Drawdown Date the amount of such Bank's
Revolver Percentage of such Norwegian Revolver Loans
to be made on such Drawdown Date and (ii) that the
Fronting Bank has made available to the Agent on such
Drawdown Date the amount of the Revolver Percentages
of the Non Kroner Funding Banks of such Norwegian
Revolver Loans to be made on such Drawdown Date, and
the Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the
Norwegian Borrower a corresponding amount. If any
Revolver Bank or the Fronting Bank makes available to
the Agent such amount on a date after such Drawdown
Date, such Bank shall pay to the Agent on demand an
amount equal to the product of (a) the average
computed for the period referred to in clause (c)
below, of the weighted average interest rate paid by
the Agent for funds acquired by the Agent during each
day included in such period, times (b) the amount of
such Revolver Bank's Revolver Percentage or, with
respect to the Fronting Bank, the Revolver
Percentages of the Non Kroner Funding Banks, of such
Norwegian Revolver Loans, times (c) a fraction, the
numerator of which is the number of days that shall
have elapsed from and including such Drawdown Date to
the date on which the amount of such Bank's Revolver
Percentage or, with respect to the Fronting Bank, the
Revolver Percentages of the Non Kroner Funding Banks,
of such Norwegian Revolver Loans shall become
immediately available to the Agent, and the
denominator of which is 360. A statement of the
Agent submitted to such Kroner Funding Bank or the
Fronting Bank with respect to any amounts owing under
this paragraph shall be prima facie evidence of the
amount due and owing to the Agent by such Bank. If
the amount of such Revolver Bank's Revolver
Percentage or, with respect to the Fronting Bank, the
Revolver Percentages of the Non Kroner Funding Banks,
of such Norwegian Revolver Loans is not made
available to the Agent by such Bank within three (3)
Business Days following such Drawdown Date, the Agent
shall be entitled to recover such amount from the
Norwegian Borrower on demand, with interest thereon
at the rate per annum applicable to the Norwegian
Revolver Loans made on such Drawdown Date.
Section 2.11. Fronting Provisions.
Section 2.11.1. Application of Interest
Payments for Norwegian Revolver Loans.
(a) Norwegian Revolver Loans Denominated in
Dollars. As promptly as is practicable following
each date upon which the Agent receives a payment of
interest under this Agreement on account of any
Norwegian Revolver Loans denominated in Dollars, the
Agent shall distribute such amount to the Revolver
Banks in accordance with their Revolver Percentages.
(b) Norwegian Revolver Loans Denominated in
Kroner. As promptly as is practicable following each
date upon which the Agent receives a payment of
interest under this Agreement on account of any
Norwegian Revolver Loans denominated in Kroner, the
Agent shall distribute to (i) each Kroner Funding
Bank an amount equal to such Bank's Revolver
Percentage of such amount and (ii) the Fronting Bank
an amount equal the sum of the Revolver Percentages
of the Non Kroner Funding Banks of such amount.
Promptly upon receipt of such amount, the Fronting
Bank shall convert into Dollars (based upon the
actual exchange rate then applicable to the Fronting
Bank) the amount equal to the portion of such
interest payment which constitutes the Applicable
Margin thereof (or, with respect to each Non Kroner
Funding Bank which funded the purchase of a
participating interest in such Norwegian Revolver
Loan pursuant to Section 2.11.3, such Bank's Revolver
Percentage of the full amount of such interest
payment applicable to the period commencing upon such
funding). In consideration of the agreement of the
Non Kroner Funding Banks to purchase participating
interests in the Norwegian Revolver Loans denominated
in Kroner, the Fronting Bank hereby agrees to pay to
the Agent, for the ratable accounts of each Non
Kroner Funding Bank that is a Revolver Bank, a risk
participation fee in an amount equal to the proceeds
received by the Fronting Bank from such conversion to
Dollars (other than any such proceeds payable for the
account of any Delinquent Bank, which proceeds shall
be retained by the Fronting Bank for its own
account); provided, however, that with respect to
each Non Kroner Funding Bank which has funded the
purchase of participating interests in the extensions
of credit on account of which such interest was paid
pursuant to Section 2.11.3, the Fronting Bank shall
instead pay to the Agent, for the account of such Non
Kroner Funding Bank which has so funded such
purchase, the amount equal to such Bank's Revolver
Percentage of the proceeds received by the Fronting
Bank from such conversion. Such amount shall be
payable to the Agent in Dollars on the date upon
which the Fronting Bank receives the proceeds of such
conversion.
Section 2.11.2. Payments to Fronting Bank. The
Norwegian Borrower agrees to pay to the Fronting Bank
for its own account a fronting fee (the "Norwegian
Revolver Fronting Fee") at the rate equal to one-
eighth of one percent (0.125%) per annum on the
amount of each Norwegian Revolver Loan denominated in
Kroner which is fronted by the Fronting Bank in
accordance with Section 2.1.2. The Norwegian
Revolver Fronting Fee shall be payable on each
Interest Payment Date relating to Norwegian Revolver
Loans, commencing on the first such date following
the date hereof, and on the Maturity Date, or any
earlier date on which the Revolver Commitments shall
terminate.
Section 2.11.3. Currency Conversions and
Contingent Funding Agreement.
(a) Each of the Non Kroner Funding
Banks hereby unconditionally and irrevocably
agrees to purchase (in Dollars) an undivided
participating interest in its ratable share,
determined by reference to its Revolver
Percentage, of all Norwegian Revolver Loans
denominated in Kroner made by the Fronting Bank
as the Agent may at any time request, provided
that:
(i) the Agent and the Fronting
Bank hereby agree that, unless (A) an Event
of Default has occurred and is continuing
and (B) all amounts owing with respect to
this Agreement, the Notes and the other
Loan Documents and all Reimbursement
Obligations have become immediately due and
payable pursuant to Section 13.1 hereof,
such Persons will not request any such
purchase of participating interests; and
(ii) in the event that any Event
of Default specified in Section Section
13.1(g) or (h) shall have occurred with
respect to the Norwegian Borrower, each Non
Kroner Funding Bank shall be deemed to have
purchased, automatically and without
request, such participating interest in the
Norwegian Revolver Loans denominated in
Kroner made by the Fronting Bank to the
Norwegian Borrower.
Any such request shall be made in writing
to each Non Kroner Funding Bank and shall
specify the amount of Dollars (based upon the
actual exchange rate at which the Agent
anticipates being able to obtain the relevant
amount in Kroner on the relevant date, with any
excess payment being refunded to the Non Kroner
Funding Banks and any deficiency remaining
payable by the Non Kroner Funding Banks)
required from such Bank in order to effect the
purchase by such Bank of a participating
interest in the amount equal to its Revolver
Percentage times the aggregate then outstanding
principal amount in Kroner of the Norwegian
Revolver Loans denominated in Kroner which have
been fronted by the Fronting Bank. Promptly
upon receipt of such request, each Non Kroner
Funding Bank shall deliver to the Agent (in
immediately available funds) the amount so
specified by the Agent. The Agent shall convert
such amounts into Kroner and shall promptly
deliver the proceeds of such conversion to the
Fronting Bank in immediately available funds.
Promptly following receipt thereof, the Fronting
Bank will deliver to each Non Kroner Funding
Bank (through the Agent) a certificate setting
forth the amount of the Norwegian Revolver Loans
purchased by such Bank, dated the date of
receipt of such funds and in such amount. From
and after such purchase, (i) all outstanding
Norwegian Revolver Loans (whether denominated in
Dollars or Kroner and including those Norwegian
Revolver Loans advanced by Kroner Funding Banks)
shall be deemed to have been converted into Base
Rate Loans denominated in Dollars (with such
conversion constituting, for purposes of Section
5.12, a conversion of a Loan of one Type into a
Loan of another Type prior to the expiration of
the relevant Interest Period), (ii) any further
Norwegian Revolver Loans to be made to the
Norwegian Borrower shall be made in Dollars by
each Revolver Bank in accordance with each such
Bank's Revolver Percentage, (iii) all amounts
from time to time accruing, and all amounts from
time to time payable, on account of such
Norwegian Revolver Loans (including any interest
and other amounts which were accrued but unpaid
on the date of such purchase) shall be payable
in Dollars and shall be distributed by the Agent
to the Revolver Banks, on account of such
participating interests. Notwithstanding
anything to the contrary contained in this
Section 2.11, the failure of any Non Kroner
Funding Bank to purchase its participating
interest in any Norwegian Revolver Loans shall
not relieve any other Non Kroner Funding Bank of
its obligations hereunder to purchase its
participating interest in a timely manner, but
no Non Kroner Funding Bank shall be responsible
for the failure of any other Non Kroner Funding
Bank to purchase the participating interest to
be purchased by such other Non Kroner Funding
Banks on any date.
(b) If any amount required to be paid by any
Non Kroner Funding Bank pursuant to Section 2.11.3(a)
is not paid to the Agent within one (1) Business Day
following the date upon which such Non Kroner Funding
Bank receives a request from the Agent that such Non
Kroner Funding Bank fund its participating interest
relating to such Norwegian Revolver Loan, such Non
Kroner Funding Bank shall pay to the Agent on demand
an amount equal to the product of (i) such amount,
times (ii) the daily average federal funds rate, as
quoted by the Agent, during the period from and
including the date such payment is required to be
made to the date on which such payment is immediately
available to the Agent, times (iii) a fraction the
numerator of which is the number of days that elapse
during such period and the denominator of which is
360. If any such amount required to be paid by any
Non Kroner Funding Bank pursuant to Section 2.11.3(a)
is not in fact made available to the Agent within
three (3) Business Days following the date upon which
such Bank receives a request from the Agent that such
Non Kroner Funding Bank fund its participating
interest relating to such Norwegian Revolver Loan,
the Agent shall be entitled to recover from the
Norwegian Borrower, on demand, such amount with
interest thereon calculated from such due date at the
rate per annum applicable to Norwegian Revolver Loans
which are Dollar Base Rate Loans. A certificate from
the Agent submitted to any Non Kroner Funding Bank
with respect to any amounts owing under this Section
2.11.3(b) shall be conclusive in the absence of
manifest error. Amounts payable by any Non Kroner
Funding Bank pursuant to this Section 2.11.3(b) shall
be paid to the Agent, for the account of the Fronting
Bank; provided that, if the Agent (in its sole
discretion) has elected to fund on behalf of such Non
Kroner Funding Bank the amounts owing to the Fronting
Bank, then the amounts shall be paid to the Agent,
for its own account.
(c) Whenever, at any time after the Fronting
Bank has received from any Non Kroner Funding Bank
such Bank's participating interest in a Norwegian
Revolver Loan pursuant to Section 2.11.3(b) above,
the Fronting Bank receives any payment on account
thereof, such Fronting Bank will distribute to the
Agent, for the account of such Non Kroner Funding
Bank, such Bank's participating interest in such
amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time
during which such Bank's participating interest was
outstanding and funded) in like funds received;
provided, however, that in the event that any such
payment received by the Fronting Bank is required to
be returned, such Bank will return to the Fronting
Bank any portion thereof previously distributed by
the Fronting Bank to the Bank in like funds as such
payment is required to be returned by the Fronting
Bank.
(d) Each Non Kroner Funding Bank's obligation
to purchase participating interests pursuant to this
Section 2.11 shall be absolute and unconditional and
shall not be affected by any circumstance, including
(i) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against the
Fronting Bank, any Borrower or any other Person for
any reason whatsoever; (ii) the occurrence and
continuation of any Default or Event of Default;
(iii) any adverse change in the condition (financial
or otherwise) of any Person party hereto; (iv) any
breach of any of the Loan Documents by any Person; or
(v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the
foregoing.
Section 2.11.4. Resignation of Fronting
Bank. The Fronting Bank may resign at any time by
giving sixty (60) days prior written notice thereof
to the Revolver Banks and the Borrowers. Upon any
such resignation, the Requisite Banks shall have the
right to appoint a successor Fronting Bank. Unless a
Default or Event of Default shall have occurred and
be continuing, such successor Fronting Bank shall be
reasonably acceptable to the Borrowers. If no
successor Fronting Bank shall have been so appointed
by the Requisite Banks and shall have accepted such
appointment within thirty (30) days after the
retiring Fronting Bank's giving of notice of
resignation, then the retiring Fronting Bank may, on
behalf of the Revolver Banks and the Norwegian Term A
Banks, appoint a successor Fronting Bank, which shall
be a financial institution having a rating of not
less than A or its equivalent by Standard & Poor's
Ratings Group. Upon the acceptance of any
appointment as Fronting Bank hereunder by a successor
Fronting Bank, such successor Fronting Bank shall
thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Fronting Bank, and the retiring Fronting Bank shall
be discharged from its duties and obligations
hereunder. After any retiring Fronting Bank's
resignation, the provisions of this Agreement and the
other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Fronting Bank.
Section 2.12. Maturity of the US Revolver Loans
and Norwegian Revolver Loans. The US Revolver Loans and
the Norwegian Revolver Loans shall be due and payable on
the Maturity Date. The US Borrowers hereby jointly and
severally promise to pay to the Agent for the pro rata
accounts of the Revolver Banks, and there shall become
absolutely due and payable on the Maturity Date, all of
the US Revolver Loans outstanding on the Maturity Date.
The Norwegian Borrower hereby promises to pay to the Agent
for the respective accounts of the Revolver Banks and the
Fronting Bank, and there shall become absolutely due and
payable on the Maturity Date, all of the Norwegian
Revolver Loans outstanding on the Maturity Date.
Section 2.13. Mandatory Repayments of Revolver
Loans.
(a)If at any time for any reason (including
currency fluctuations) the sum of the outstanding
principal amount of the US Revolver Loans, the
outstanding principal amount of the Norwegian
Revolver Loans denominated in Dollars, the Dollar
Equivalent of the outstanding amount of the Norwegian
Revolver Loans denominated in Kroner, the Maximum
Drawing Amount and all Unpaid Reimbursement
Obligations exceeds the Total Revolver Commitment,
then the Borrowers shall immediately pay the amount
of such excess to the Agent for the respective
accounts of the Revolver Banks and the London Branch
for application: first, to any Unpaid Reimbursement
Obligations; second, to the Revolver Loans; and
third, to provide to the Agent and London Branch cash
collateral for Reimbursement Obligations as
contemplated by Section 3.2(b) and (c). Each payment
of any Unpaid Reimbursement Obligations or prepayment
of Revolver Loans shall be allocated among the
Revolver Banks, in proportion, as nearly as
practicable, to each Reimbursement Obligation owing
to each such Revolver Bank or (as the case may be)
the respective unpaid principal amount of the
Revolver Loans owing to such Revolver Bank, with
adjustments to the extent practicable to equalize any
prior payments or repayments not exactly in
proportion.
(b)If at any time for any reason (including
currency fluctuations) the sum of (i) the outstanding
principal amount of the Norwegian Revolver Loans
denominated in Dollars plus (ii) the Dollar
Equivalent of the outstanding principal amount of the
Norwegian Revolver Loans denominated in Kroner
exceeds the Norwegian Limit, then the Norwegian
Borrower shall immediately pay the amount of such
excess to the Agent, for the respective accounts of
the Revolver Banks and the Fronting Bank for
application to the Norwegian Revolver Loans.
Section 2.14 Optional Repayments of Revolver
Loans.
(a)The US Borrowers shall have the right, at
their election, to repay the outstanding amount of
the US Revolver Loans, as a whole or in part, at any
time without penalty or premium, provided that the
full or partial prepayment of the Outstanding amount
of any US Revolver Loan that is a Eurocurrency Rate
Loan pursuant to this Section 2.14 may be made only
on the last day of the Interest Period relating
thereto. The US Borrowers shall give the Agent, no
later than 10:00 a.m., Boston time, at least two (2)
Business Days' prior written notice of any proposed
repayment of a US Revolver Loan that is a Base Rate
Loan pursuant to this Section 2.12, and three (3)
Eurocurrency Business Days' prior written notice of
any proposed repayment of a US Revolver Loan that is
a Eurocurrency Rate Loan pursuant to this Section
2.14, in each case specifying the proposed date of
payment of such US Revolver Loans and the principal
amount to be paid. Each such partial prepayment of
the US Revolver Loans shall be accompanied by the
payment of accrued interest on the principal repaid
to the date of payment and shall be in the minimum
principal amount of $2,000,000 or a larger integral
multiple of $250,000. Each partial prepayment shall
be allocated among the Revolver Banks, in proportion,
as nearly as practicable, to the respective unpaid
principal amount of each Revolver Bank's US Revolver
Note, with adjustments to the extent practicable to
equalize any prior repayments not exactly in
proportion.
(b)The Norwegian Borrower shall have the right,
at its election, to repay the outstanding amount of
the Norwegian Revolver Loans, as a whole or in part,
at any time without penalty or premium, provided that
the full or partial prepayment of the Outstanding
amount of any Norwegian Revolver Loan that is a
Eurocurrency Rate Loan pursuant to this Section 2.14
may be made only on the last day of the Interest
Period relating thereto. The Norwegian Borrower
shall give the Agent, no later than 10:00 a.m.,
London time, at least two (2) Business Days' prior
written notice of any proposed repayment of a
Norwegian Revolver Loan that is a Base Rate Loan
pursuant to this Section 2.14, and three (3)
Eurocurrency Business Days' prior written notice of
any proposed repayment of a Norwegian Revolver Loan
that is a Eurocurrency Rate Loan pursuant to this
Section 2.14, in each case specifying the proposed
date of payment of such Norwegian Revolver Loans and
the principal amount to be paid. Each such partial
prepayment of the Norwegian Revolver Loans shall be
accompanied by the payment of accrued interest on the
principal repaid to the date of payment and shall be
in the minimum principal amount of $2,000,000 or a
larger integral multiple of $250,000 with respect to
Norwegian Revolver Loans denominated in Dollars or in
the minimum principal amount of NOK 15,000,000 or a
larger integral multiple of NOK 2,000,000 with
respect to such Loans denominated in Kroner.
Section 3. LETTERS OF CREDIT; TENDER GUARANTY.
Section 3.1. Letter of Credit Commitment; Tender
Guaranty.
Section 3.1.1. Commitment to Issue Letters of
Credit; Tender Guaranty. Subject to the terms and
conditions hereof and the execution and delivery by
the US Borrowers of a letter of credit application on
the Agent's customary form (a "Letter of Credit
Application") or, with respect to the Tender
Guaranty, such other customary documentation as shall
be reasonably required by the London Branch, (i) the
Agent on behalf of the Revolver Banks and in reliance
upon the agreement of the Revolver Banks set forth in
Section 3.1.4 and upon the representations and
warranties of the US Borrowers contained herein,
agrees, in its individual capacity, to issue, extend
and renew for the account of the US Borrowers from
time to time from the Closing Date to the date which
is fourteen (14) Business Days prior to the Maturity
Date one or more standby letters of credit (each,
individually, a "Letter of Credit"), in such form as
may be requested from time to time by the US
Borrowers and agreed to by the Agent and (ii) the
London Branch on behalf of the Revolver Banks and in
reliance upon the agreement of the Revolver Banks set
forth in Section 3.1.4 and upon the representations
and warranties of the US Borrowers contained herein,
agrees, in its individual capacity, to issue for the
account of the US Borrowers the Tender Guaranty, in
such form as may be requested by the US Borrowers and
agreed to by the London Branch; provided, however,
that, after giving effect to such request, (a) the
sum of the aggregate Maximum Drawing Amount and all
Unpaid Reimbursement Obligations shall not exceed Ten
Million Dollars ($10,000,000) at any one time and (b)
the sum of (i) the Maximum Drawing Amount, (ii) all
Unpaid Reimbursement Obligations, (iii) the amount of
all US Revolver Loans outstanding and (iv) the Dollar
Equivalent of the amount of all Norwegian Revolver
Loans outstanding shall not exceed the Total Revolver
Commitment. The parties hereto hereby agree that, on
and as of the Closing Date, the letters of credit
issued under the Existing Credit Agreement shall be
deemed to be Letters of Credit hereunder.
Section 3.1.2. Letter of Credit Applications;
Tender Guaranty. Each Letter of Credit Application
shall be completed to the satisfaction of the Agent.
In the event that any provision of any Letter of
Credit Application shall be inconsistent with any
provision of this Agreement, then the provisions of
this Agreement shall, to the extent of any such
inconsistency, govern. All documentation relating to
the Tender Guaranty shall be completed to the
satisfaction of the London Branch. In the event that
any provision of the documentation relating to the
Tender Guaranty shall be inconsistent with any
provision of this Agreement, then the provisions of
this Agreement shall, to the extent of any such
inconsistency, govern.
Section 3.1.3. Terms of Letters of Credit;
Tender Guaranty. Each Letter of Credit issued,
extended or renewed hereunder shall, among other
things, (a) provide for the payment of sight drafts
for honor thereunder when presented in accordance
with the terms thereof and when accompanied by the
documents described therein, (b) have an original
expiry date no later than the date which is three
hundred sixty-five (365) days from the date of
issuance and (c) have a final expiry date no later
than the date which is fourteen (14) Business Days
prior to the Maturity Date. Each Letter of Credit so
issued, extended or renewed shall be subject to the
Uniform Customs. The Tender Guaranty shall have an
expiration date that is no later than June 30, 1998.
Section 3.1.4. Reimbursement Obligations of
Revolver Banks. Each Revolver Bank severally agrees
that it shall be absolutely liable, without regard to
the occurrence of any Default or Event of Default or
any other condition precedent whatsoever, to the
extent of such Revolver Bank's Revolver Percentage,
to (i) reimburse the Agent on demand for the amount
of each draft paid by the Agent under each Letter of
Credit to the extent that such amount is not
reimbursed by the US Borrowers pursuant to Section
3.2 (such agreement for a Revolver Bank being called
herein the "Letter of Credit Participation" of such
Revolver Bank) and (ii) reimburse the London Branch
on demand for all amounts paid under the Tender
Guaranty, to the extent such amount is not
immediately reimbursed by the US Borrowers pursuant
to Section 3.2 (such agreement for a Revolver Bank
being called herein the "Tender Guaranty
Participation" of such Revolver Bank).
Section 3.1.5. Participations of Revolver
Banks. Each such payment made by a Revolver Bank in
respect of a Letter of Credit Participation or a
Tender Guaranty Participation shall be treated as the
purchase by such Revolver Bank of a participating
interest in the US Borrower's Reimbursement
Obligation under Section 3.2 in an amount equal to
such payment. Each Revolver Bank shall share in
accordance with its participating interest in any
interest which accrues pursuant to Section 3.2.
Section 3.2. Reimbursement Obligation of the US
Borrowers. In order to induce (i) the Agent to issue,
extend and renew each Letter of Credit and (ii) the London
Branch to issue the Tender Guaranty, and the Revolver
Banks to participate therein, the US Borrowers hereby
agree to reimburse or pay to the Agent, for the account of
the Agent or (as the case may be) the Revolver Banks, with
respect to each Letter of Credit issued, extended or
renewed by the Agent hereunder and with respect to the
Tender Guaranty,
(a)on each date that any draft presented under
such Letter of Credit is honored by the Agent or the
Tender Guaranty is honored by the London Branch, or
the Agent otherwise makes a payment under or pursuant
to such Letter of Credit or the London Branch makes a
payment under or pursuant to the Tender Guaranty, (i)
the amount paid by the Agent under or pursuant to
such Letter of Credit or by the London Branch under
the Tender Guaranty (it being understood that such
payment to the Agent or the London Branch may,
subject to the satisfaction of the conditions set
forth therein, be made from the proceeds of a US
Revolver Loan made to the US Borrowers pursuant to
Section 2.7), and (ii) the amount of any customary
taxes, fees, charges or other reasonable costs and
expenses whatsoever incurred by the Agent, the London
Branch or any Revolver Bank in connection with any
payment made by the Agent, the London Branch or any
Revolver Bank under, or pursuant to, such Letter of
Credit or, as the case may be, the Tender Guaranty
(to the extent the reimbursement and payment of such
taxes, fees, charges, costs, or expenses are not
otherwise provided for elsewhere in this Agreement
and excluding therefrom any amount payable to the
Agent or, as the case may be, the London Branch, by a
Bank pursuant to Section 3.3);
(b)upon the reduction (but not termination) of
the Total Revolver Commitment to an amount less than
the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Agent
for the benefit of the Revolver Banks, the Agent and
the London Branch as cash collateral for the
Reimbursement Obligations; and
(c)upon the termination of the Total Revolver
Commitment or the acceleration of the Reimbursement
Obligations with respect to all Letters of Credit and
the Tender Guaranty in accordance with Section 13, an
amount equal to the then Maximum Drawing Amount,
which amount shall be held by the Agent for the
benefit of the Revolver Banks, the Agent and the
London Branch as cash collateral for the
Reimbursement Obligations.
Each such payment shall be made to the Agent at 100
Federal Street, Boston, Massachusetts 02110, in
immediately available funds or (in the case of clause (a))
from the direct application of the proceeds of a US
Revolver Loan made pursuant to Section 2.7 hereof.
Interest on any and all amounts remaining unpaid by the US
Borrowers under this Section 3.2 at any time from the date
such amounts become due and payable (whether as stated in
this Section 3.2, by acceleration or otherwise) until
payment in full (whether before or after judgment) shall
be payable to the Agent or, as the case may be, the London
Branch on demand at the rate specified in Section 5.8 for
overdue principal of the US Revolver Loans.
Section 3.3. Letter of Credit Payments; Tender
Guaranty Payment. If any draft shall be presented or
other demand for payment shall be made under any Letter of
Credit, the Agent shall notify the US Borrowers of the
date and amount of the draft presented or demand for
payment and of the date and time when it expects to pay
such draft or honor such demand for payment. If any
demand for payment shall be made under the Tender
Guaranty, the London Branch shall notify the US Borrowers
of the date and amount of demand for payment and of the
date and time when it expects to honor such demand for
payment. If the US Borrowers fail to reimburse the Agent
or, as the case may be, the London Branch, as provided in
Section 3.2 on or before the date that such draft is paid
or other payment is made by the Agent or such payment is
made by London Branch, the Agent or, as the case may be,
London Branch may at any time thereafter notify the
Revolver Banks of the amount of any such Unpaid
Reimbursement Obligation. No later than 3:00 p.m. (Boston
time) on the Business Day next following the receipt of
such notice, each Revolver Bank shall make available to
the Agent, or as the case may be, London Branch, at the
Agent's Head Office, in immediately available funds, such
Revolver Bank's Revolver Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to
the product of (a) the average, computed for the period
referred to in clause (c) below, of the weighted average
interest rate paid by the Agent or, as the case may be,
London Branch, for federal funds acquired by the Agent or
London Branch during each day included in such period,
times (b) the amount equal to such Revolver Bank's
Revolver Percentage of such Unpaid Reimbursement
Obligation, times (c) a fraction, the numerator of which
is the number of days that shall have elapsed from and
including the date the Agent paid the draft presented for
honor or otherwise made payment or London Branch made a
payment on the Tender Guaranty to the date on which such
Revolver Bank's Revolver Percentage of such Unpaid
Reimbursement Obligation shall become immediately
available to the Agent or London Branch, and the
denominator of which is 360. The responsibility of the
Agent and London Branch to the US Borrowers and the
Revolver Banks shall be only to determine that the
documents (including each draft) delivered under each
Letter of Credit or the Tender Guaranty in connection with
such presentment shall be in conformity in all material
respects with such Letter of Credit or, as the case may
be, the Tender Guaranty.
Section 3.4. Obligations Absolute. The US
Borrowers' obligations under this Section 3 shall be
absolute and unconditional under any and all circumstances
and irrespective of the occurrence of any Default or Event
of Default or any condition precedent whatsoever or any
setoff, counterclaim or defense to payment which the US
Borrowers may have or have had against the Agent, London
Branch, any Revolver Bank or any beneficiary of a Letter
of Credit or the Tender Guaranty. The US Borrowers
further agree with the Agent, London Branch and the
Revolver Banks that the Agent, London Branch and the
Revolver Banks shall not be responsible for, and the US
Borrowers' Reimbursement Obligations under Section 3.2
shall not be affected by, among other things, the validity
or genuineness of documents or of any endorsements
thereon, even if such documents should in fact prove to be
in any or all respects invalid, fraudulent or forged, or
any dispute between or among the US Borrowers, the
beneficiary of any Letter of Credit or the Tender Guaranty
or any financing institution or other party to which any
Letter of Credit or the Tender Guaranty may be transferred
or any claims or defenses whatsoever of the US Borrowers
against the beneficiary of any Letter of Credit or the
Tender Guaranty or any such transferee. The Agent, London
Branch and the Revolver Banks shall not be liable for any
error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit or
the Tender Guaranty. The US Borrowers agree that any
action taken or omitted by the Agent, London Branch or any
Revolver Bank under or in connection with each Letter of
Credit or the Tender Guaranty and the related drafts and
documents, if done in good faith, shall be binding upon
the US Borrowers and shall not result in any liability on
the part of the Agent, London Branch or any Revolver Bank
to the US Borrowers; provided that the Agent, London
Branch or such Revolver Bank shall not be grossly
negligent in taking or omitting to take any such action.
Section 3.5. Reliance by Issuer. To the extent
not inconsistent with Section 3.4, the Agent and London
Branch shall be entitled to rely, and shall be fully
protected in relying upon, any Letter of Credit, draft,
writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document
believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and
upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. The
Agent and London Branch shall be fully justified in
failing or refusing to take any action under this
Agreement unless it shall first have received such advice
or concurrence of the Majority Revolver Banks as it
reasonably deems appropriate or it shall first be
indemnified to its reasonable satisfaction by the Revolver
Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting,
under this Agreement in accordance with a request of the
Majority Revolver Banks, and such request and any action
taken or failure to act pursuant thereto shall be binding
upon the Banks and all future holders of the Revolver
Notes or of a Letter of Credit Participation or a Tender
Guaranty Participation.
Section 3.6. Fees. The US Borrowers shall pay to
the Agent and the Revolver Banks in respect of each Letter
of Credit the following fees (collectively, the "Letter of
Credit Fees"): (a) on the date of issuance and on each
anniversary of issuance of each Letter of Credit, a fee
payable to the Agent, for the accounts of the Revolver
Banks in accordance with their respective Revolver
Percentages, annually in advance, equal to the Letter of
Credit Rate then in effect per annum on the face amount of
such Letter of Credit provided that, if such Letter of
Credit has an expiry date that is less than one year from
the date of the issuance of such Letter of Credit, such
fee shall be multiplied by a fraction, the numerator of
which is the number of days from the date of issuance to
the expiry date of such Letter of Credit and the
denominator of which is 360 and (b) on the date of
issuance, and at the time of each extension or renewal of
each Letter of Credit, a fee payable to the Agent for its
own account, equal to one-eighth percent (1/8%) of the
face amount of such Letter of Credit plus the Agent's
customary issuance fee, renewal fee or extension fee, as
the case may be. The US Borrowers shall pay to London
Branch and the Revolver Banks in respect of the Tender
Guaranty the following fees (collectively, the "Tender
Guaranty Fees"): (a) on the date of the issuance and on
each anniversary of issuance of the Tender Guaranty, a fee
payable to the Agent, for the accounts of the Revolver
Banks in accordance with their respective Revolver
Percentages, annually in advance, equal to the Letter of
Credit Rate then in effect per annum of the face amount of
such the Tender Guaranty provided that, if the Tender
Guaranty has an expiry date that is less than one year
from the date of the issuance thereof, such fee shall be
multiplied by a fraction, the numerator of which is the
number of days from the date of issuance to the expiry
date of the Tender Guaranty and the denominator of which
is 360 and (b) on the date of issuance of the Tender
Guaranty, a fee payable to London Branch, for its own
account, equal to one-eighth percent (1/8%) of the face
amount of the Tender Guaranty.
Section 4. THE TERM A LOANS
Section 4.1. Commitment to Lend the Term A
Loans.
(a)Subject to the terms and conditions set forth
in this Agreement, (i) each Norwegian Term A Bank
severally agrees to lend to the Norwegian Borrower on
the Norwegian Closing Date an amount in Dollars equal
to its Norwegian Term A Percentage of the principal
amount requested to be funded in Dollars, and (ii)
each Norwegian Term A Bank severally agrees to lend
to the Norwegian Borrower on the Norwegian Closing
Date an amount in Kroner equal to its Norwegian Term
A Percentage of the principal amount requested to be
funded in Kroner, up to an aggregate amount for all
Loans denominated in Dollars and Kroner of
$75,000,000 or the Kroner Equivalent thereof;
provided that, with respect to all or the portion of
Norwegian Term A Loan denominated in Kroner, the
Norwegian Term A Commitment Percentage of each Non
Kroner Funding Bank shall be fronted by the Fronting
Bank (each Non Kroner Funding Bank hereby agreeing to
participate in the risk associated with such
Norwegian Term A Loan in accordance with Section 4.6)
(the sum of the amounts referred to in this Section
4.1(a) referred to herein as the "Norwegian Term A
Loan").
(b)Subject to the terms and conditions set forth
in this Agreement, each Dutch Term A Bank severally
agrees to lend to the Dutch Borrower on the Closing
Date an amount in Dollars equal to its Dutch Term A
Percentage of the principal amount of $75,000,000
(the "Dutch Term A Loan").
Section 4.2. The Notes; Loan Accounts.
(a)The Norwegian Term A Loan and the Obligations
of the Norwegian Borrower in respect thereof shall be
evidenced by this Agreement and the Loan Account
maintained by each Norwegian Term A Bank with respect
to such Norwegian Term A Loan. The Norwegian
Borrower irrevocably authorizes each Norwegian Term A
Bank to make or cause to be made a notation on such
Bank's Loan Account reflecting the original principal
amount of such Norwegian Term A Bank's Norwegian Term
A Loan and, at or about the time of such Bank's
receipt of any principal payment of the Norwegian
Term A Loan, an appropriate notation on such Loan
Account reflecting such payment. The aggregate
unpaid amount set forth in such Loan Account shall be
prima facie evidence of the principal amount thereof
owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount
in such Loan Account shall not affect the obligations
of the Norwegian Borrower hereunder to make payments
of principal of and interest on the Norwegian Term A
Loan when due.
(b)The Dutch Term A Loan shall be evidenced by
separate promissory notes of the Dutch Borrower in
substantially the form of Exhibit A-2 hereto (each a
"Dutch Term A Note"), payable to the order of each
Dutch Term A Bank. The Dutch Borrower irrevocably
authorizes each Dutch Term A Bank to make or cause to
be made a notation on such Bank's Record with respect
to such Note reflecting the original principal amount
of such Dutch Term A Bank's Dutch Term A Loan and, at
or about the time of such Bank's receipt of any
principal payment of the Dutch Term A Loan, an
appropriate notation on such Bank's Record reflecting
such payment. The aggregate unpaid amount set forth
on such Bank's Record with respect to such Note shall
be prima facie evidence of the principal amount
thereof owing and unpaid to such Bank, but the
failure to record, or any error in so recording, any
such amount on such Bank's Record shall not affect
the obligations of the Dutch Borrower hereunder or
under any Dutch Term A Note to make payments of
principal of and interest on any Dutch Term A Note
when due.
Section 4.3. Repayment of the Principal of Term
A Loans.
(a)The Norwegian Borrower promises to pay to the
Agent for the respective accounts of the Norwegian
Term A Banks which are Kroner Funding Banks, the
Norwegian Term A Banks which are Non Kroner Funding
Banks, and the Fronting Bank, the principal amount of
the Norwegian Term A Loan in nineteen (19) quarterly
installments commencing on March 31, 1998, in such
amounts corresponding to the percentages set forth in
the table below, and with a final payment of the
remaining principal amount of the Norwegian Term A
Loan on the Maturity Date:
Quarters Ending Quarterly Percentage
1/1/98 - 12/31/99 4.1666%
1/1/00 - 12/31/00 5%
1/1/01 - 09/30/02 5.8333%
No amount repaid with respect to the Norwegian Term A
Loan may be reborrowed.
(b)The Dutch Borrower promises to pay to the
Agent for the account of the Dutch Term A Banks the
principal amount of the Dutch Term A Loan in nineteen
(19) quarterly installments commencing on March 31,
1998 and with a final payment of the remaining
principal amount of the Dutch Term A Loan on the
Maturity Date in accordance with the following
schedule:
Quarters Ending Quarterly Amount
1/1/98 - 12/31/99 $3,125,000
1/1/00 - 12/31/00 $3,750,000
1/1/01 - 09/30/02 $4,375,000
No amount repaid with respect to the Dutch Term A
Loan may be reborrowed.
Section 4.4. Optional Prepayment of Term A
Loans.
(a)The Norwegian Borrower shall have the right
at any time to prepay the Norwegian Term A Loan on or
before the Maturity Date, as a whole, or in part,
upon not less than three (3) Business Days' prior
written notice to the Agent; provided that (i) each
partial prepayment shall be in a principal amount of
at least $2,000,000/NOK 15,000,000 or a larger
integral multiple of $250,000/NOK 2,000,000 (ii) no
portion of the Norwegian Term A Loan bearing interest
at the Dollar Eurocurrency Rate or the Kroner
Eurocurrency Rate may be prepaid pursuant to this
Section 4.4 except on the last day of the Interest
Period relating thereto, and (iii) each partial
prepayment shall be allocated among the Norwegian
Term A Banks which are Kroner Funding Banks, the
Norwegian Term A Banks which are Non Kroner Funding
Banks, and the Fronting Bank, in proportion, as
nearly as practicable, to the outstanding amount of
the Norwegian Term A Loan owing to each such Bank,
with adjustments, to the extent practicable, to
equalize any prior prepayments not exactly in
proportion. Any prepayment of principal of the
Norwegian Term A Loan shall include all interest
accrued to the date of prepayment and shall be
applied pro rata against the scheduled installments
of principal due on the Norwegian Term A Loan. No
amount repaid or prepaid with respect to the
Norwegian Term A Loan may be reborrowed.
(b)The Dutch Borrower shall have the right at
any time to prepay the Dutch Term A Loan on or before
the Maturity Date, as a whole, or in part, upon not
less than three (3) Business Days' prior written
notice to the Agent; provided that (i) each partial
prepayment shall be in a principal amount of at least
$2,000,000 or a larger integral multiple of $250,000,
(ii) no portion of the Dutch Term A Loan bearing
interest at the Dollar Eurocurrency Rate may be
prepaid pursuant to this Section 4.4 except on the
last day of the Interest Period relating thereto, and
(iii) each partial prepayment shall be allocated
among the Dutch Term A Banks, in proportion, as
nearly as practicable, to the respective outstanding
amount of each Dutch Term A Bank's Dutch Term A Note,
with adjustments, to the extent practicable, to
equalize any prior prepayments not exactly in
proportion. Any prepayment of principal of the Dutch
Term A Loan shall include all interest accrued to the
date of prepayment and shall be applied pro rata
against the scheduled installments of principal due
on the Dutch Term A Loan. No amount repaid or
prepaid with respect to the Dutch Term A Loan may be
reborrowed.
Section 4.5. Interest on Term A Loans. Except
as otherwise provided in Section 5.8,
(a)The Norwegian Term A Loan shall bear
interest during each Interest Period relating to
all or any portion thereof at the rate per annum
equal to (i) the Dollar Base Rate plus the
Applicable Margin then applicable to Dollar Base
Rate Loans, in the case of any portion of the
Norwegian Term A Loan that is a Base Rate Loan
denominated in Dollars, (ii) subject to the
immediately succeeding sentence, the Kroner Base
Rate plus the Applicable Margin then applicable
to Kroner Base Rate Loans, in the case of any
portion of the Norwegian Term A Loan that is a
Base Rate Loan denominated in Kroner, (iii) the
Dollar Eurocurrency Rate plus the Applicable
Margin then applicable to Eurocurrency Rate
Loans, in the case of any portion of the
Norwegian Term A Loan that is a Eurocurrency
Rate Loan denominated in Dollars, and (iv) the
Kroner Eurocurrency Rate plus the Applicable
Margin then applicable to Eurocurrency Rate
Loans, in the case of any portion of the
Norwegian Term A Loan that is a Eurocurrency
Rate Loan denominated in Kroner. The parties
hereto hereby agree that, except as provided in
Section 5.10, all or such portion of the
Norwegian Term A Loan that is denominated in
Kroner shall be a Eurocurrency Rate Loan.
(b)The Dutch Term A Loan shall bear
interest during each Interest Period relating to
all or any portion thereof at the rate per annum
equal to (i) the Dollar Base Rate plus the
Applicable Margin then applicable to Base Rate
Loans, in the case of any portion of the Dutch
Term A Loan that is a Base Rate Loan, and (ii)
the Dollar Eurocurrency Rate plus the Applicable
Margin then applicable to Eurocurrency Rate
Loans, in the case of any portion of the Dutch
Term A Loan that is a Eurocurrency Rate Loan.
(c)The Norwegian Borrower promises to
pay interest on the Norwegian Term A Loan or any
portion thereof outstanding during each Interest
Period in arrears on each Interest Payment Date
applicable to such Interest Period and on the
Maturity Date. The Dutch Borrower promises to
pay interest on the Dutch Term A Loan or any
portion thereof outstanding during each Interest
Period in arrears on each Interest Payment Date
applicable to such Interest Period and on the
Maturity Date.
(d)The provisions of Section 2.8 shall
apply mutatis mutandis with respect to all or
any portion of the Norwegian Term A Loan or the
Dutch Term A Loan so that the Norwegian Borrower
and the Dutch Borrower (as the case may be)
shall have the same interest rate options
(subject to the limitations set forth therein)
with respect to all or any portion of the
Norwegian Term A Loan and the Dutch Term A Loan
as they would be entitled to if they were the
borrowers of the US Revolver Loans and the
Norwegian Revolver Loans.
(e)No Interest Period relating to the
Norwegian Term A Loan or the Dutch Term A Loan
or any portion of any of them bearing interest
at a rate calculated by a reference to the
Dollar Eurocurrency Rate or Kroner Eurocurrency
Rate shall extend beyond the date on which a
regularly scheduled installment payment of the
principal of the Norwegian Term A Loan or the
Dutch Term A Loan (as the case may be) is to be
made unless a portion of the Norwegian Term A
Loan or the Dutch Term A Loan (as the case may
be) at least equal to such installment payment
has an Interest Period ending on or before such
date or is then bearing interest at a rate
calculated by reference to the Dollar Base Rate
or Kroner Base Rate (as the case may be).
Section 4.6. Fronting Provisions.
Section 4.6.1. Application of Interest Payments
for Norwegian Term A Loan.
(a) Norwegian Term A Loan Denominated in
Dollars. As promptly as is practicable following
each date upon which the Agent receives a payment of
interest under this Agreement on account of the
portion of the Norwegian Term A Loan denominated in
Dollars, the Agent shall distribute such amount to
the Norwegian Term A Banks in accordance with their
Norwegian Term A Percentages.
(b) Norwegian Term A Loan Denominated in
Kroner. As promptly as is practicable following each
date upon which the Agent receives a payment of
interest under this Agreement on account of the
portion of the Norwegian Term A Loan denominated in
Kroner, the Agent shall distribute such amount to (i)
each Kroner Funding Bank an amount equal to such
Bank's Norwegian Term A Percentage of such amount and
(ii) the Fronting Bank an amount equal the sum of the
Norwegian Term A Percentages of the Non Kroner
Funding Banks of such amount. Promptly upon receipt
of such amount, the Fronting Bank shall convert into
Dollars (based upon the actual exchange rate then
applicable to the Fronting Bank) the amount equal to
the portion of such interest payment which
constitutes the Applicable Margin thereof (or, with
respect to each Non Kroner Funding Bank which funded
the purchase of a participating interest in such
Norwegian Term A Loan pursuant to Section 4.6.3, such
Bank's Norwegian Term A Percentage of the full amount
of such interest payment). In consideration of the
agreement of the Non Kroner Funding Banks to purchase
participating interests in the portion of the
Norwegian Term A Loan denominated in Kroner, the
Fronting Bank hereby agrees to pay to the Agent, for
the ratable accounts of each Non Kroner Funding Bank
that is a Norwegian Term A Bank, a risk participation
fee in an amount equal to the proceeds received by
the Fronting Bank from such conversion to Dollars
(other than any such proceeds payable for the account
of any Delinquent Bank, which proceeds shall be
retained by the Fronting Bank for its own account);
provided, however, that with respect to each
Norwegian Term A Bank which has funded the purchase
of participating interests in the Norwegian Term A
Loan pursuant to Section 4.6.3, the Fronting Bank
shall instead pay to the Agent, for the account of
such Norwegian Term A Bank which has so funded such
purchase, the amount equal to such Bank's Norwegian
Term A Percentage of the proceeds received by the
Fronting Bank from such conversion. Such amount
shall be payable to the Agent in Dollars on the date
upon which the Fronting Bank receives the proceeds of
such conversion.
Section 4.6.2. Payments to Fronting Bank. The
Norwegian Borrower agrees to pay to the Fronting Bank
for its own account a fronting fee (the "Term A
Fronting Fee") at a rate equal to one-eighth of one
percent (0.125%) per annum on the amount of the
Norwegian Term A Loan denominated in Kroner which is
fronted by the Fronting Bank in accordance with
Section 4.1. The Term A Fronting Fee shall be
payable on each Interest Payment Date relating to the
Norwegian Term A Loan, commencing on the first such
date following the date hereof, and on the Maturity
Date, or any earlier date on which the Norwegian Term
A Commitments shall terminate.
Section 4.6.3. Currency Conversions and
Contingent Funding Agreement.
(a) Each of the Non Kroner Funding
Banks hereby unconditionally and irrevocably
agrees to purchase (in Dollars) an undivided
participating interest in its ratable share,
determined by reference to its Norwegian Term A
Percentage, of the Norwegian Term A Loan
denominated in Kroner made by the Fronting Bank
as the Agent may at any time request, provided
that:
(i) the Agent and the Fronting
Bank hereby agree that, unless (A) an Event
of Default has occurred and is continuing
and (B) all amounts owing with respect to
this Agreement, the Notes and the other
Loan Documents and all Reimbursement
Obligations have become immediately due and
payable pursuant to Section 13.1 hereof,
such Persons will not request any such
purchase of participating interests; and
(ii) in the event that any Event
of Default specified in Section Section
13.1(g) or (h) shall have occurred with
respect to the Norwegian Borrower, each Non
Kroner Funding Bank shall be deemed to have
purchased, automatically and without
request, such participating interest in the
Norwegian Term A Loan denominated in Kroner
made by the Fronting Bank to the Norwegian
Borrower.
Any such request shall be made in writing
to each Non Kroner Funding Bank and shall
specify the amount of Dollars (based upon the
actual exchange rate at which the Agent
anticipates being able to obtain the relevant
amount in Kroner on the relevant date, with any
excess payment being refunded to the Non Kroner
Funding Banks and any deficiency remaining
payable by the Non Kroner Funding Banks)
required from such Bank in order to effect the
purchase by such Bank of a participating
interest in the amount equal to its Norwegian
Term A Percentage times the aggregate then
outstanding principal amount of the Norwegian
Term A Loan denominated in Kroner which has been
fronted by the Fronting Bank. Promptly upon
receipt of such request, each Non Kroner Funding
Bank shall deliver to the Agent (in immediately
available funds) the amount so specified by the
Agent. The Agent shall convert such amounts
into Kroner and shall promptly deliver the
proceeds of such conversion to the Fronting Bank
in immediately available funds. Promptly
following receipt thereof, the Fronting Bank
will deliver to each Non Kroner Funding Bank
(through the Agent) a certificate setting forth
the amount of the Norwegian Term A Loan
purchased by such Bank, dated the date of
receipt of such funds and in such amount. From
and after such purchase, (i) the outstanding
amount of the Norwegian Term A Loan (whether
denominated in Dollars or Kroner and including
the portion of the Norwegian Term A Loan
advanced by Kroner Funding Banks) shall be
deemed to have been converted into a Base Rate
Loan denominated in Dollars (with such
conversion constituting, for purposes of Section
5.12, a conversion of a Loan of one Type into a
Loan of another Type prior to the expiration of
the relevant Interest Period) and (ii) all
amounts from time to time accruing, and all
amounts from time to time payable, on account of
the Norwegian Term A Loan (including any
interest and other amounts which were accrued
but unpaid on the date of such purchase) shall
be payable in Dollars and shall be distributed
by the Agent to the Norwegian Term A Banks on
account of such participating interests.
Notwithstanding anything to the contrary
contained in this Section 4.6, the failure of
any Non Kroner Funding Bank to purchase its
participating interest in the Norwegian Term A
Loan shall not relieve any other Non Kroner
Funding Bank of its obligations hereunder to
purchase its participating interest in a timely
manner, but no Non Kroner Funding Bank shall be
responsible for the failure of any other Non
Kroner Funding Bank to purchase the
participating interest to be purchased by such
other Non Kroner Funding Banks on any date.
(b) If any amount required to be paid by any
Non Kroner Funding Bank pursuant to Section 4.6.3(a)
is not paid to the Agent within one (1) Business Day
following the date upon which such Non Kroner Funding
Bank receives a request from the Agent that such Non
Kroner Funding Bank fund its participating interest
relating to the Norwegian Term A Loan, such Non
Kroner Funding Bank shall pay to the Agent on demand
an amount equal to the product of (i) such amount,
times (ii) the daily average federal funds rate, as
quoted by the Agent, during the period from and
including the date such payment is required to be
made to the date on which such payment is immediately
available to the Agent, times (iii) a fraction the
numerator of which is the number of days that elapse
during such period and the denominator of which is
360. If any such amount required to be paid by any
Non Kroner Funding Bank pursuant to Section 4.6.3(a)
is not in fact made available to the Agent within
three (3) Business Days following the date upon which
such Bank receives a request from the Agent that such
Non Kroner Funding Bank fund its participating
interest relating to the Norwegian Term A Loan, the
Agent shall be entitled to recover from the Norwegian
Borrower, on demand, such amount with interest
thereon calculated from such due date at the rate per
annum applicable to the Norwegian Term A Loan which
is a Dollar Base Rate Loan. A certificate from the
Agent submitted to any Non Kroner Funding Bank with
respect to any amounts owing under this Section
4.6.3(b) shall be conclusive in the absence of
manifest error. Amounts payable by any Non Kroner
Funding Bank pursuant to this Section 4.6.3(b) shall
be paid to the Agent, for the account of the Fronting
Bank; provided that, if the Agent (in its sole
discretion) has elected to fund on behalf of such Non
Kroner Funding Bank the amounts owing to the Fronting
Bank, then the amounts shall be paid to the Agent,
for its own account.
(c) Whenever, at any time after the Fronting
Bank has received from any Non Kroner Funding Bank
such Bank's participating interest in the Norwegian
Term A Loan pursuant to Section 4.6.3(b) above, the
Fronting Bank receives any payment on account
thereof, such Fronting Bank will distribute to the
Agent, for the account of such Non Kroner Funding
Bank, such Bank's participating interest in such
amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time
during which such Bank's participating interest was
outstanding and funded) in like funds received;
provided, however, that in the event that any such
payment received by the Fronting Bank is required to
be returned, such Bank will return to the Fronting
Bank any portion thereof previously distributed by
the Fronting Bank to the Bank in like funds as such
payment is required to be returned by the Fronting
Bank.
(d) Each Non Kroner Funding Bank's obligation
to purchase participating interests pursuant to this
Section 4.6 shall be absolute and unconditional and
shall not be affected by any circumstance, including
(i) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against the
Fronting Bank, any Borrower or any other Person for
any reason whatsoever; (ii) the occurrence and
continuation of any Default or Event of Default;
(iii) any adverse change in the condition (financial
or otherwise) of any Person party hereto; (iv) any
breach of any of the Loan Documents by any Person; or
(v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the
foregoing.
Section 4A. THE TERM B LOAN .
Section 4A.1. Commitment to Lend the Term B
Loan . Subject to the terms and conditions set forth
in this Agreement, each Dutch Term B Bank severally
agrees to lend to the Dutch Borrower on the Closing
Date an amount in Dollars equal to its Dutch Term B
Percentage of the principal amount of $50,000,000
(the "Dutch Term B Loan").
Section 4A.2. The Notes. The Dutch Term B Loan
shall be evidenced by separate promissory notes of
the Dutch Borrower in substantially the form of
Exhibit A-3 hereto (each a "Dutch Term B Note"),
payable to the order of each Dutch Term B Bank. The
Dutch Borrower irrevocably authorizes each Dutch Term
B Bank to make or cause to be made a notation on such
Bank's Record with respect to such Note reflecting
the original principal amount of such Dutch Term B
Bank's Dutch Term B Loan and, at or about the time of
such Bank's receipt of any principal payment of the
Dutch Term B Loan, an appropriate notation on such
Bank's Record reflecting such payment. The aggregate
unpaid amount set forth on such Bank's Record shall
be prima facie evidence of the principal amount
thereof owing and unpaid to such Bank, but the
failure to record, or any error in so recording, any
such amount on such Bank's Record with respect to
such Note shall not affect the obligations of the
Dutch Borrower hereunder or under any Dutch Term B
Note to make payments of principal of and interest on
any Dutch Term B Note when due.
Section 4A.3. Repayment of the Principal of
Term B Loan. The Dutch Borrower promises to pay to
the Agent for the account of the Dutch Term B Banks
the principal amount of the Dutch Term B Loan in
twenty-three (23) quarterly installments commencing
on March 31, 1998 and with a final payment in the
remaining principal amount of the Dutch Term B Loan
on the Term B Maturity Date in accordance with the
following schedule:
Quarters Ending Quarterly Payment
1/1/98 - 12/31/02 $ 250,000
1/1/03 - 09/30/03 $11,250,000
No amount repaid or prepaid with respect to the Dutch
Term B Loan may be reborrowed.
Section 4A.4. Optional Prepayment of Term B
Loan. The Dutch Borrower shall have the right at any
time to prepay the Dutch Term B Loan on or before the
Maturity Date, as a whole, or in part, upon not less
than three (3) Business Days' prior written notice to
the Agent; provided that (a) each partial prepayment
shall be in a principal amount of at least $2,000,000
or a larger integral multiple of $250,000, (b) no
portion of the Dutch Term B Loan bearing interest at
the Dollar Eurocurrency Rate may be prepaid pursuant
to this Section 4A.4 except on the last day of the
Interest Period relating thereto, and (c) each
partial prepayment shall be allocated among the Dutch
Term B Banks, in proportion, as nearly as
practicable, to the respective outstanding amount of
each Dutch Term B Bank's Dutch Term B Note, with
adjustments, to the extent practicable, to equalize
any prior prepayments not exactly in proportion. Any
prepayment of principal of the Dutch Term B Loan
shall include all interest accrued to the date of
prepayment and shall be applied against the scheduled
installments of principal due on the Dutch Term B
Loan in the inverse order of maturity. No amount
repaid or repaid with respect to the Dutch Term B
Loan may be reborrowed.
Section 4A.5. Interest on Term B Loan. Except
as otherwise provided in Section 5.8,
(a)The Dutch Term B Loan shall bear
interest during each Interest Period relating to
all or any portion thereof at the rate per annum
equal to (i) the Dollar Base Rate plus 1.25%, in
the case of any portion of the Dutch Term B Loan
that is a Base Rate Loan, and (ii) the Dollar
Eurocurrency Rate plus 2.75%, in the case of any
portion of the Dutch Term B Loan that is a
Eurocurrency Rate Loan. In the event that the
Parent's long term senior secured debt or
corporate credit rating (i) as assigned by
Standard & Poor's Ratings Group is "B+" or lower
or (ii) as assigned by Moody's Corporation is
"B1" or lower or, if no such rating is issued,
then the foregoing rates of interest with
respect to the Dutch Term B Loan shall increase
by 0.25% with effect from the date such rating
is assigned and at all times thereafter until
the Parent's long term senior secured debt or
corporate credit rating (i) as assigned by
Standard & Poor's Ratings Group is "BB" or
higher and (ii) as assigned by Moody's
Corporation is "Ba2" or higher.
(b)The Dutch Borrower promises to pay
interest on the Dutch Term B Loan or any portion
thereof outstanding during each Interest Period
in arrears on each Interest Payment Date
applicable to such Interest Period and on the
Term B Maturity Date.
(c)The provisions of Section 2.8 shall
apply mutatis mutandis with respect to all or
any portion of the Dutch Term B Loan so that the
Dutch Borrower shall have the same interest rate
options (subject to the limitations set forth
therein) with respect to all or any portion of
the Dutch Term B Loan as it would be entitled to
if it were the borrower of the US Revolver Loans
and the Norwegian Revolver Loans.
(d)No Interest Period relating to the
Dutch Term B Loan or any portion thereof bearing
interest at a rate calculated by a reference to
the Dollar Eurocurrency Rate shall extend beyond
the date on which a regularly scheduled
installment payment of the principal of the
Dutch Term B Loan is to be made unless a portion
of the Dutch Term B Loan at least equal to such
installment payment has an Interest Period
ending on such date or is then bearing interest
at a rate calculated by reference to the Dollar
Base Rate.
Section 4B. MANDATORY PREPAYMENTS OF THE TERM LOANS.
Section 4B.1. Excess Cash Flow Prepayments.
Commencing on April 30, 1999 and on the last day of April
of each year thereafter, in the event that the Leverage
Ratio determined as at the end of the fiscal year next
preceding such date is 3.00 to 1.00 or greater, the Parent
shall, or shall cause its Subsidiaries to, prepay the
principal balance of the Norwegian Term A Loan, the Dutch
Term A Loan and the Dutch Term B Loan to the Agent for the
accounts of the applicable Banks in an amount equal to 50%
of the aggregate amount of consolidated Excess Cash Flow
of the Parent and its Subsidiaries for the immediately
preceding fiscal year or, in the case of the payment due
on April 30, 1999, for the period commencing on the
Closing Date through December 31, 1998.
Section 4B.2. Asset Sale Prepayments. If at any
time after the Closing Date the Parent or any of the
Borrowers receives Net Proceeds (as defined below) in an
amount greater than $10,000,000 in any fiscal year of the
Parent and the Leverage Ratio determined as at the date of
such receipt is 3.00 to 1.00 or greater, the Parent shall,
and shall cause its Subsidiaries to prepay the principal
balance of the Norwegian Term A Loan, the Dutch Term A
Loan, and the Dutch Term B Loan to the Agent for the
accounts of the applicable Banks in an amount equal to
100% of the amount by which such Net Proceeds exceeds
$10,000,000. For purposes hereof "Net Proceeds" means the
amount of cash received by the Parent or any Borrower from
the sale of any assets (other than the sales of assets in
the ordinary course of business), whether in one
transaction or a series of transactions, net of closing
costs and out-of-pocket expenses incurred in connection
with such sale. The Agent and the Banks hereby agree
that, in connection with any such sale of assets permitted
under Section 9.5.2, the Agent shall, promptly upon
receipt of such Net Proceeds and the application thereof
to the Loans to the extent provided herein, at the expense
of the Borrowers, take all actions reasonably necessary to
cause the lien of the Agent in the assets so sold to be
released.
Section 4B.3. Debt Issuance Prepayments. If at
any time after the Closing Date the Parent or any of its
Subsidiaries shall issue any Indebtedness (other than the
Senior Notes, the Additional Senior Notes and other
Indebtedness permitted pursuant to Section Section 9.1(a)
through (k) hereof) and the Leverage Ratio determined as
at the date of such issuance is 3.00 to 1.00 or greater,
the Parent shall, and shall cause its Subsidiaries to
prepay the principal balance of the Norwegian Term A Loan,
the Dutch Term A Loan and the Dutch Term B Loan to the
Agent for the accounts of the applicable Banks in an
amount equal to 100% of the proceeds of such issuance, net
of issuance expenses and transactions costs incurred in
connection with such issuance.
Section 4B.4. Stock Issuance Prepayments. If at
any time after the Closing Date the Parent shall issue any
additional common stock and the Leverage Ratio determined
as at the date of such issuance is 3.00 to 1.00 or
greater, the Parent shall, and shall cause its
Subsidiaries to, prepay the principal balance of the
Norwegian Term A Loan, the Dutch Term A Loan and the Dutch
Term B Loan to the Agent for the accounts of the
applicable Banks in an amount equal to 100% of the cash
proceeds of such issuance, net of issuance expenses and
transactions costs incurred in connection with such
issuance; provided that no prepayment will be required
hereunder from the proceeds of the exercise of employee
stock options.
Section 4B.5. Concerning the Term Loan
Prepayments. Each prepayment of the Norwegian Term A
Loan, the Dutch Term A Loan and the Dutch Term B Loan (as
the case may be) shall be applied first to the repayment
of the Dutch Term B Loan, pro rata among the applicable
Banks, second to the repayment of the Dutch Term A Loan,
pro rata among the applicable Banks, and third to the
repayment of the Norwegian Term A Loan, pro rata among the
applicable Banks. Any prepayment of the Dutch Term B Loan
shall be applied against the scheduled installments of
principal due on such Loan in the inverse order of
maturity. Any prepayment of the Norwegian Term A Loan and
the Dutch Term A Loan shall be applied pro rata against
the scheduled installments of principal due on such Loans.
No amount prepaid or repaid with respect to any of the
Norwegian Term A Loan, the Dutch Term A Loan or the Dutch
Term B Loan (as the case may be) may be reborrowed. The
applicable Borrowers promise to prepay such Loans in
accordance with the provisions of this Section 4B.
Section 5. CERTAIN GENERAL PROVISIONS.
Section 5.1. Fees. The Borrowers jointly and
severally agree to pay to the Agent for its own account on
the Closing Date, and on such other dates as set forth in
the Fee Letter, the fees to be paid on such dates in the
amounts set forth in the Fee Letter.
Section 5.2. [Intentionally Omitted].
Section 5.3. Funds for Payments.
Section 5.3.1. Payments to Agent. All payments
of principal of, interest on, and Commitment Fees in
respect of the Norwegian Revolver Loans, the Dutch
Term A Loan, the Dutch Term B Loan and the Norwegian
Term A Loan shall be made to the Agent, for the
respective accounts of the Banks and the Agent, at
the Agent's office located in London, England or at
such other location that the Agent may from time to
time designate, in each case in immediately available
funds. All payments of principal of, interest on,
and Commitment Fees in respect of the US Revolver
Loans or the Revolver Commitments, the Reimbursement
Obligations, the Letter of Credit Fees, Tender
Guaranty Fees, and any other amounts due hereunder or
under any of the other Loan Documents shall be made
to the Agent, for the respective accounts of the
Banks and the Agent, at the Agent's head office or at
such other location that the Agent may from time to
time designate, in each case in immediately available
funds.
Section 5.3.2. No Offset, Etc.
(a)All payments by the Borrowers hereunder and
under any of the other Loan Documents shall be made
without setoff or counterclaim and free and clear of
and without deduction for any taxes, levies, imposts,
duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or
taxing or other authority therein unless any Borrower
is compelled by law to make such deduction or
withholding. If any such obligation is imposed upon
a Borrower with respect to any amount payable by it
hereunder or under any of the other Loan Documents,
such Borrower will pay to the Agent, for the account
of the applicable Banks or (as the case may be) the
Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document,
such additional amount in Dollars or Kroner (as the
case may be) as shall be necessary to enable the
applicable Banks or the Agent to receive the same net
amount which the applicable Banks or the Agent would
have received on such due date had no such obligation
been imposed upon such Borrower. Such Borrower will
deliver promptly to the Agent certificates or other
valid vouchers for all taxes or other charges
deducted from or paid with respect to payments made
by such Borrower hereunder or under such other Loan
Document.
(b)On or before the date it becomes a party to
this Agreement and from time to time thereafter upon
any change in status rendering any certificate or
document previously delivered pursuant to this
Section 5.3.2 invalid or inaccurate, each Bank that
is organized under the laws of a jurisdiction outside
the United States shall (if legally able to do so)
deliver to the US Borrowers such certificates,
documents or other evidence, as required by the Code
or Treasury Regulations issued pursuant thereto,
including Internal Revenue Service Form 1001 or Form
4224 and any other certificate or statement of
exemption required by Treasury Regulation Section
1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent
version thereof or subsequent version thereto,
properly completed and duly executed by such Bank
establishing that such payment is (a) not subject to
United States Federal withholding tax under the Code
because such payment is effectively connected with
conduct by such Bank of a trade or business in the
United States or (b) totally exempt from United
States Federal withholding tax or, if due to a change
in law occurring after the date such Bank became a
party hereto, subject to a reduced rate of such tax
under a provision of an applicable tax treaty. The
Borrower shall not be required to pay any additional
amounts to any Bank pursuant to this Section 5.3.2 to
the extent that the obligation to pay such additional
amounts would not have arisen but for a failure by
such Bank to comply with the provisions of the
preceding sentence.
Section 5.3.3 Currency.
(a) Payments of principal or interest
with respect to any Loan shall be made in the
currency in which the Loan was advanced. To the
extent any Borrower fails to pay in such
currency, any necessary currency conversions
shall be made by the Agent on the basis of the
Agent's spot rates of exchange (as conclusively
determined by the Agent). The Borrowers hereby
agree to indemnify the Agent against the full
cost incurred by the Agent or any Bank in
connection with any such conversion.
(b) No payment to the Agent or any Bank
(whether under any judgment or court order or
otherwise) shall discharge the obligation or
liability in respect of which it was made unless
and until the Agent or such Bank shall have
received payment in full in the currency in
which such obligation or liability was incurred,
and to the extent that the amount of any such
payment shall on actual conversion into such
currency fall short of such obligation or
liability expressed in that currency, the
Borrowers shall indemnify and hold harmless the
Agent or such Bank with respect to the amount of
the shortfall.
(c) If, for the purpose of obtaining
judgment in any court it is necessary to convert
a sum due hereunder in one currency (the "first
currency") into any other currency (the "second
currency") the conversion shall be made at the
spot rate of exchange of the Agent (as
conclusively determined by the Agent) on the
Business Day preceding the day on which the
final judgment is given. If, however, on the
Business Day following receipt by the Agent in
the second currency of any sum adjudged to be
due hereunder (or any proportion thereof) the
Agent purchases the first currency with the
amount of the second currency so received and
the first currency so purchased falls short of
the sum originally due hereunder in the first
currency (or the same proportion thereof) the
Borrowers shall, as a separate obligation and
notwithstanding any judgment, pay to the Agent
in the first currency an amount equal to such
shortfall.
Section 5.4. Computations. All computations of
interest on Base Rate Loans, Letter of Credit Fees, Tender
Guaranty Fees, or Commitment Fees shall be based on a 365-
day year and paid for the actual number of days elapsed.
All computations of interest on Eurocurrency Rate Loans
shall be based on a 360-day year and paid for the actual
number of days elapsed. Except as otherwise provided in
the definition of the term "Interest Period" with respect
to Eurocurrency Rate Loans, whenever a payment hereunder
or under any of the other Loan Documents becomes due on a
day that is not a Business Day, the due date for such
payment shall be extended to the next succeeding Business
Day, and interest shall accrue during such extension. The
outstanding amount of the Loans as reflected on the
Records from time to time shall be considered correct and
binding on the Borrowers unless within fifteen (15)
Business Days after receipt of any notice by the Agent or
any of the Banks of such outstanding amount, the Agent or
such Bank shall notify the Borrowers to the contrary. All
computations of outstanding Loans, Commitment
availability, mandatory prepayments or other matters
hereunder shall be made in Dollars or Dollar Equivalents.
Section 5.5. Additional Costs, Etc. If any
present or future applicable law, which expression, as
used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or
official charged with the administration or the
interpretation thereof and requests, directives,
instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Bank or the
Agent by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law),
shall:
(a)subject any Bank or the Agent to any tax,
levy, impost, duty, charge, fee, deduction or
withholding of any nature with respect to this
Agreement, the other Loan Documents, the Letters of
Credit, the Tender Guaranty, any Bank's Commitments,
or the Loans (other than taxes based upon or measured
by the income or profits of such Bank or the Agent),
or
(b)materially change the basis of taxation
(except for changes in taxes on income or profits) of
payments to any Bank of the principal of or the
interest on any Loans or any other amounts payable to
any Bank or the Agent under this Agreement or the
other Loan Documents, or
(c)impose or increase or render applicable
(other than to the extent specifically provided for
elsewhere in this Agreement) any special deposit,
reserve, assessment, liquidity, capital adequacy or
other similar requirements (whether or not having the
force of law) against assets held by, or deposits in
or for the account of, or loans by, or letters of
credit issued by, or commitments of an office of any
Bank, or
(d)impose on any Bank or the Agent any other
conditions or requirements with respect to this
Agreement, the other Loan Documents, any Letters of
Credit, the Tender Guaranty, the Loans, any
Commitments, or any class of loans, letters of credit
or commitments of which any of the Loans or such
Bank's Commitment forms a part,
and the result of any of the foregoing is:
(i)to increase the cost to any Bank of
making, funding, issuing, renewing, extending or
maintaining any of the Loans, any Letters of
Credit, the Tender Guaranty or such Bank's
Commitments, or
(ii)to reduce the amount of principal,
interest or other amount payable to such Bank or
the Agent hereunder on account of such Bank's
Commitments, any Letter of Credit, the Tender
Guaranty, or any of the Loans, or
(iii)to require such Bank or the Agent
to make any payment or to forego any interest or
Reimbursement Obligation or other sum payable
hereunder, the amount of which payment or
foregone interest or Reimbursement Obligation or
other sum is calculated by reference to the
gross amount of any sum receivable or deemed
received by such Bank or the Agent from any of
the Borrowers hereunder,
then, and in each such case, the Borrowers will, upon
demand made by such Bank or (as the case may be) the Agent
at any time and from time to time and as often as the
occasion therefor may arise, pay to such Bank or the Agent
such additional amounts as will be sufficient to
compensate such Bank or the Agent for such additional
cost, reduction, payment or foregone interest or
Reimbursement Obligations or other sum.
Section 5.6. Capital Adequacy. If after the date
hereof any Bank or the Agent determines that (a) the
adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements
for banks or bank holding companies or any change in the
interpretation or application thereof by a court or
governmental authority with appropriate jurisdiction, or
(b) compliance by such Bank or the Agent or any
corporation controlling such Bank or the Agent with any
law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) of any
such entity regarding capital adequacy, has the effect of
reducing the return on such Bank's or the Agent's
commitment with respect to any Loans to a level below that
which such Bank or the Agent could have achieved but for
such adoption, change or compliance (taking into
consideration such Bank's or the Agent's then existing
policies with respect to capital adequacy and assuming
full utilization of such entity's capital) by any amount
deemed by such Bank or (as the case may be) the Agent to
be material, then such Bank or the Agent may notify the
Borrowers of such fact. To the extent that the amount of
such reduction in the return on capital is not reflected
in the Dollar Base Rate or the Kroner Base Rate, as
applicable, the Borrowers jointly and severally agree to
pay such Bank or (as the case may be) the Agent for the
amount of such reduction in the return on capital as and
when such reduction is determined upon presentation by
such Bank or (as the case may be) the Agent of a
certificate in accordance with Section 5.7 hereof. Each
Bank shall allocate such cost increases among its
customers in good faith and on an equitable basis.
Section 5.7. Certificate. A certificate setting
forth any additional amounts payable pursuant to Section
Section 5.5 or 5.6 and a brief explanation of such amounts
which are due, submitted by any Bank or the Agent to the
Borrowers, shall be conclusive, absent manifest error,
that such amounts are due and owing.
Section 5.8. Interest After Default. During the
continuance of an Event of Default, the principal of the
Loans not overdue shall, until such Event of Default has
been cured or remedied or waived in accordance with
Section 26, bear interest at a rate per annum equal to two
percent (2%) above the rate of interest otherwise
applicable to such Loans pursuant to this Agreement. All
overdue amounts hereunder, including, without limitation,
the principal of and interest on (to the extent permitted
by applicable law) the Loans, Unpaid Reimbursement
Obligations, Commitment Fees, Letter of Credit Fees and
Tender Guaranty Fees shall bear interest at the rate per
annum equal to two percent (2%) above the rate of interest
applicable to Base Rate Loans denominated in Dollars.
Section 5.9. Concerning Joint and Several
Liability of the US Borrowers.
(a)Each of the US Borrowers is accepting joint
and several liability hereunder in consideration of
the financial accommodation to be provided by the
Revolver Banks under this Agreement, for the mutual
benefit, directly and indirectly, of each of the US
Borrowers and in consideration of the undertakings of
each of the US Borrowers to accept joint and several
liability for the obligations of each of them.
(b)Each of the US Borrowers jointly and
severally hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-
debtor, joint and several liability with the other US
Borrower with respect to the payment and performance
of all of the Obligations arising under this
Agreement, it being the intention of the parties
hereto that all the Obligations shall be the joint
and several obligations of both of the US Borrowers
without preferences or distinction among them.
(c)If and to the extent that either of the US
Borrowers shall fail to make any payment with respect
to any of the obligations hereunder as and when due
or to perform any of such obligations in accordance
with the terms thereof, then in each such event, the
other US Borrower will make such payment with respect
to, or perform, such obligation.
(d)The obligations of each US Borrower under the
provisions of this Section 5.9 constitute full
recourse obligations of such US Borrower, enforceable
against it to the full extent of its properties and
assets, irrespective of the validity, regularity or
enforceability of this Agreement or any other
circumstances whatsoever.
(e)Except as otherwise expressly provided
herein, each US Borrower hereby waives notice of
acceptance of its joint and several liability, notice
of any and all Loans made under this Agreement,
notice of occurrence of any Event of Default, or of
any demand for any payment under this Agreement,
notice of any action at any time taken or omitted by
the Banks under or in respect of any of the
Obligations hereunder, any requirement of diligence
and, generally, all demands, notices and other
formalities of every kind in connection with this
Agreement. Each US Borrower hereby assents to, and
waives notice of, any extension or postponement of
the time for the payment of any of the Obligations
hereunder, the acceptance of any partial payment
thereon, any waiver, consent or other action or
acquiescence by the Banks at any time or times in
respect of any default by any US Borrower in the
performance or satisfaction of any term, covenant,
condition or provision of this Agreement, any and all
other indulgences whatsoever by the Banks in respect
of any of the Obligations hereunder, and the taking,
addition, substitution or release, in whole or in
part, at any time or times, of any security for any
of such Obligations or the addition, substitution or
release, in whole or in part, of any US Borrower.
Without limiting the generality of the foregoing,
each US Borrower assents to any other action or delay
in acting or failure to act on the part of the Banks,
including, without limitation, any failure strictly
or diligently to assert any right or to pursue any
remedy or to comply fully with applicable laws or
regulations thereunder which might, but for the
provisions of this Section 5.9, afford grounds for
terminating, discharging or relieving such US
Borrower, in whole or in part, from any of its
obligations under this Section 5.9, it being the
intention of each US Borrower that, so long as any of
the Obligations hereunder remain unsatisfied, the
obligations of such US Borrower under this Section
5.9 shall not be discharged except by performance and
then only to the extent of such performance. The
obligations of each US Borrower under this Section
5.9 shall not be diminished or rendered unenforceable
by any winding up, reorganization, arrangement,
liquidation, reconstruction or similar proceeding
with respect to any reconstruction or similar
proceeding with respect to any US Borrower or any
Bank. The joint and several liability of the US
Borrowers hereunder shall continue in full force and
effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the
name, membership, constitution or place of formation
of any US Borrower or any Bank.
(f)The provisions of this Section 5.9 are made
for the benefit of the Banks and their successors and
assigns, and may be enforced by them from time to
time against either of the US Borrowers as often as
occasion therefor may arise and without requirement
on the part of the Banks first to marshall any of
their claims or to exercise any of their rights
against the other US Borrower or to exhaust any
remedies available to them against the other US
Borrower or to resort to any other source or means of
obtaining payment of any of the Obligations hereunder
or to elect any other remedy. The provisions of this
Section 5.9 shall remain in effect until all the
Obligations hereunder shall have been paid in full or
otherwise fully satisfied. If at any time, any
payment, or any part thereof, made in respect of any
of the Obligations, is rescinded or must otherwise be
restored or returned by any of the Banks upon the
insolvency, bankruptcy or reorganization of the US
Borrowers, or otherwise, the provisions of this
Section 5.9 will forthwith be reinstated in effect,
as though such payment had not been made.
Section 5.10. Inability to Determine Eurocurrency
Rate. In the event that, prior to the commencement of any
Interest Period relating to any Eurocurrency Rate Loan,
the Agent shall determine or be notified by the Fronting
Bank or the Majority Banks that adequate and reasonable
methods do not exist for ascertaining the Dollar
Eurocurrency Rate or Kroner Eurocurrency Rate, as the case
may be, that would otherwise determine the rate of
interest to be applicable to any Eurocurrency Rate Loan
during any Interest Period, the Agent shall forthwith give
notice of such determination (which shall be conclusive
and binding on the Borrowers and the Banks) to the
Borrowers. In such event (a) each Loan Request or
Conversion Request with respect to each Eurocurrency Rate
Loan shall be automatically withdrawn and shall be deemed
a request for a Base Rate Loan, (b) each Eurocurrency Rate
Loan will automatically, on the last day of the then
current Interest Period thereof, become a Base Rate Loan,
and (c) the obligations of the Banks to make Eurocurrency
Rate Loans shall be suspended until the Agent, the
Fronting Bank or the Majority Banks determine that the
circumstances giving rise to such suspension no longer
exist, whereupon the Agent shall so notify the Borrowers.
Section 5.11. Illegality. Notwithstanding any
other provisions herein, if any present or future law,
regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful for the Banks
to make or maintain Eurocurrency Rate Loans, the Agent
shall forthwith give notice of such circumstances to the
Borrowers and thereupon (a) the commitment of the Banks to
make Eurocurrency Rate Loans or convert Loans of another
Type to Eurocurrency Rate Loans shall forthwith be
suspended and (b) the Loans then outstanding as
Eurocurrency Rate Loans, if any, shall be converted
automatically to Base Rate Loans on the last day of each
Interest Period applicable to such Eurocurrency Rate Loans
or within such earlier period as may be required by law.
The Borrowers hereby jointly and severally agree promptly
to pay the Agent, for the pro rata accounts of the Banks,
upon demand, any additional amounts necessary to
compensate the Banks for any costs incurred by the Banks
in making any conversion in accordance with this Section
5.11, including any interest or fees payable by the Banks
to lenders of funds obtained by it in order to make or
maintain its Eurocurrency Rate Loans hereunder.
Section 5.12. Indemnity. Except to the extent of
breakage costs arising from a prepayment of a Eurocurrency
Rate Loan as a result of an event set forth in Section
5.10, each of the Borrowers agrees to indemnify the Banks
and to hold the Banks harmless from and against any loss,
cost or expense (including loss of anticipated profits)
that the Banks may sustain or incur as a consequence of
(a) default by such Borrower in payment of the principal
amount of or any interest on any Eurocurrency Rate Loans
as and when due and payable, including any such loss or
expense arising from interest or fees payable by the Banks
to lenders of funds obtained by it in order to maintain
its Eurocurrency Rate Loans, (b) default by such Borrower
in making a borrowing after such Borrower has given (or is
deemed to have given) a Loan Request or a Conversion
Request relating thereto in accordance with Section 2.6,
Section 2.7 or Section 2.8 or (c) the making of any
payment on a Eurocurrency Rate Loan or the making of any
conversion of any such Loan to a Base Rate Loan on a day
that is not the last day of the applicable Interest Period
with respect thereto, including interest or fees payable
by any Bank to lenders of funds obtained by it in order to
maintain any such Loans.
Section 5.13. Replacement of Banks. If any Bank
(an "Affected Bank") (i) makes demand upon a Borrower for
(or if a Borrower is otherwise required to pay) amounts
pursuant to Section Section 5.3.2, 5.6 or 5.7, (ii) is
unable to make or maintain Eurocurrency Rate Loans as a
result of a condition described in Section 5.10 or (iii)
defaults in its obligation to make Loans, in accordance
with the terms of this Agreement (such Bank being referred
to as a "Defaulting Bank"), the Borrowers within ninety
(90) days of receipt of such demand, notice (or the
occurrence of such other event causing the Borrower to be
required to pay such compensation or causing Section 5.10
to be applicable), or default, as the case may be, by
notice (a "Replacement Notice") in writing to the Agent
and such Affected Bank (A) request the Affected Bank to
cooperate with the Borrowers in obtaining a replacement
bank satisfactory to the Agent and the Borrower (the
"Replacement Bank"); (B) request the non-Affected Banks to
acquire and assume all of the Affected Bank's Loans and
Commitments, as provided herein, but none of such Banks
shall be under an obligation to do so; or (C) designate a
Replacement Bank approved by the Agent, such approval not
to be unreasonably withheld or delayed. If any
satisfactory Replacement Bank shall be obtained, and/or if
any one or more of the non-Affected Banks shall agree to
acquire and assume all of the Affected Bank's Loans and
Commitments, then such Affected Bank shall assign, in
accordance with Section 19, all of its Commitments, Loans,
Letter of Credit Participations, Tender Guaranty
Participations, Notes and other rights and obligations
under this Agreement and all other Loan Documents to such
Replacement Bank or non-Affected Banks, as the case may
be, in exchange for payment of the principal amount so
assigned and all interest and fees accrued on the amount
so assigned, plus all other Obligations then due and
payable to the Affected Bank; provided, however, that (i)
such assignment shall be without recourse, representation
or warranty and shall be on terms and conditions
reasonably satisfactory to such Affected Bank and such
Replacement Bank and/or non-Affected Banks, as the case
may be, and (ii) prior to any such assignment, the
Borrowers shall have paid to such Affected Bank all
amounts properly demanded and unreimbursed under Section
Section 5.3.2, 5.6 or 5.7. Upon the effective date of
such assignment, the applicable Borrowers shall issue
replacement Notes to such Replacement Bank and/or
non-Affected Banks, as the case may be, and such
institution shall become a "Bank" for all purposes under
this Agreement and the other Loan Documents.
Section 6. COLLATERAL SECURITY AND GUARANTIES.
Section 6.1 Security for and Guaranties of the
Obligations of the US Borrowers. The Obligations of the
US Borrowers shall be guaranteed equally and ratably by
the Parent and each other Subsidiary (direct and indirect)
of the Parent, to the extent that such other Subsidiary of
the Parent is required to guaranty the obligations of the
Parent under the terms of the Indenture relating to the
Senior Notes and the Additional Senior Notes. The
Obligations of the US Borrowers shall be secured by a
perfected first priority security interest (subject only
to Permitted Liens entitled to priority under applicable
law) in (i) the US Vessels and the Vanuatu Vessels, (ii)
certain other assets of the US Borrowers to the extent
contemplated by the Security Documents, (iii) by a pledge
by the Parent of one hundred percent (100%) of the issued
and outstanding capital stock of each of the US Borrowers,
and (iv) by a pledge by the Parent of sixty-six percent
(66%) of the issued and outstanding capital stock of the
Dutch Borrower (all of the foregoing collateral being
referred to herein as the "US Collateral"). To the extent
permitted by the Indenture relating to the Senior Notes
and the Additional Senior Notes, the US Collateral will
secure the Obligations of the US Borrowers and the Parent
including, without limitation, the guaranty by such
Persons of the Dutch Obligations and the Norwegian
Obligations; provided that the aggregate amount of
Obligations of the Parent and the US Borrowers which is
secured pursuant to the Security Documents shall not, at
any time, exceed the sum of (i) $65,000,000 plus (ii)
fifteen percent (15%) of Consolidated Net Tangible Assets.
Section 6.2 Security for and Guaranties of the
Dutch Obligations. The Dutch Obligations shall be
guaranteed equally and ratably by the Parent, the US
Borrowers, and each other Subsidiary (direct and indirect
of the Parent), to the extent that such other Subsidiary
of the Parent is required to guaranty the obligations of
the Parent under the terms of the Indenture relating to
the Senior Notes and the Additional Senior Notes. The
Dutch Obligations shall be secured by a perfected first
priority security interest (subject only to Permitted
Liens entitled to priority under applicable law) in
certain assets of the Dutch Borrower, including, without
limitation, a pledge of all the capital stock of the
Target, to the extent contemplated by the Security
Documents (all of the foregoing collateral being referred
to herein as the "Dutch Collateral").
Section 6.3 Security for and Guaranties of the
Norwegian Obligations. The Norwegian Obligations shall be
guaranteed equally and ratably by the Parent, the US
Borrowers, the Dutch Borrower, the Target, the
Subsidiaries of Target and each other Subsidiary (direct
and indirect) of the Parent, to the extent that such other
Subsidiary of the Parent is required to guaranty the
obligations of the Parent under the terms of the Indenture
relating to the Senior Notes and the Additional Senior
Notes. The Norwegian Obligations shall be secured by a
perfected first priority security interest (subject only
to Permitted Liens entitled to priority under applicable
law) in certain assets of the Norwegian Borrower and the
Target, including, without limitation, all vessels and
charter parties with respect thereto, to the extent
contemplated by the Security Documents (all of the
foregoing collateral being referred to herein as the
"Norwegian Collateral").
Section 6.4 Concerning the Senior Indenture. For
purposes of the Indentures relating to the Senior Notes
and the Additional Senior Notes, the Dutch Obligations of
the Dutch Borrower and the Norwegian Obligations of the
Norwegian Borrower, the Target and Saevik Supply U.K.
shall not be deemed to be part of the "Credit Facility"
(as such term is defined in such Indentures).
Section 7. REPRESENTATIONS AND WARRANTIES. The
Parent and each of the Borrowers jointly and severally
represent and warrant to the Banks and the Agent on the
Closing Date, on each Drawdown Date and on the date of the
issuance of the Tender Guaranty and any issuance,
extension or renewal of a Letter of Credit as follows:
Section 7.1. Corporate Authority.
Section 7.1.1. Incorporation; Good Standing.
Each of the Parent, its Subsidiaries, the Target and
the Target's Subsidiaries (a) is a corporation duly
organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation,
(b) has all requisite corporate power to own its
property and conduct its business as now conducted
and as will be conducted upon the consummation of the
Takeover, and (c) is in good standing as a foreign
corporation and is duly authorized to do business in
each jurisdiction where such qualification is
necessary except where a failure to be so qualified
would not have a material adverse effect on the
business, assets or financial condition of the
Parent, its Subsidiaries, the Target and the Target's
Subsidiaries, taken as a whole.
Section 7.1.2. Authorization. The execution,
delivery and performance of this Agreement, the other
Loan Documents and the Takeover Documents to which
the Parent, its Subsidiaries, the Target and the
Target's Subsidiaries is or is to become a party and
the transactions contemplated hereby and thereby (a)
are within the corporate authority of each of such
Persons, (b) have been duly authorized by all
necessary corporate proceedings by each of such
Persons, (c) do not conflict with or result in any
breach or contravention of any provision of law,
statute, rule or regulation to which any of such
Persons is subject or any judgment, order, writ,
injunction, license, exemption or permit applicable
to any of such Persons or make any such Person
ineligible for any beneficial tax treatment or other
regulatory or contractual treatment or status which
is of material importance to its business or
financial status, (d) do not require any waivers,
consents or approvals by any of such Person's
creditors which have not been obtained, (e) do not
require any consents or approvals by any of such
Person's shareholders (except such as will be duly
obtained on or prior to the Closing Date and will be
in full force and effect on and as of such date), and
(f) do not conflict with any provision of the
corporate charter or bylaws of, or any agreement or
other instrument binding upon any of such Persons.
Section 7.1.3. Enforceability. The execution
and delivery of this Agreement and each of the other
Loan Documents to which any of the Parent, its
Subsidiaries, the Target and the Target's
Subsidiaries is or is to become a party will result
in valid and legally binding obligations of each of
such Persons enforceable against it in accordance
with the respective terms and provisions hereof and
thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting generally the
enforcement of creditors' rights and except to the
extent that availability of the remedy of specific
performance or injunctive relief is subject to the
discretion of the court before which any proceeding
therefor may be brought.
Section 7.2. Governmental Approvals. The
execution, delivery and performance of this Agreement, the
other Loan Documents and the Takeover Documents to which
any of the Parent, its Subsidiaries, the Target and the
Target's Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby do not and
will not require any approval, consent, order,
authorization or license by, filing with, or notice to,
any governmental or regulatory agency or authority other
than those already obtained or given.
Section 7.3. Title to Properties; Leases. Except
as indicated on Schedule 7.3 attached hereto, the Parent,
its Subsidiaries, the Target and the Target's Subsidiaries
own all of the assets reflected in the Pro Forma Balance
Sheet, subject to no rights of others, including any
mortgages, leases, charters, conditional sales agreements,
title retention agreements, liens or other encumbrances
except Permitted Liens.
Section 7.4. Financial Statements, Pro Forma
Balance Sheet and Projections.
Section 7.4.1. Financial Statements. (a)
There have been furnished to each of the Banks a
consolidated balance sheet of the Parent and its
Subsidiaries as at the Balance Sheet Date, and
consolidated statements of income and cash flows for
the fiscal year then ended, certified by Coopers &
Lybrand LLP. Such balance sheet and statements of
income and cash flows were prepared in accordance
with generally accepted accounting principles and
fairly present the financial condition of the Parent
and its Subsidiaries as of the close of business on
the Balance Sheet Date and the results of operations
for the fiscal year then ended. There are no
liabilities, contingent or otherwise, of the Parent
or any of its Subsidiaries, as of the Balance Sheet
Date, that would in accordance with generally
accepted accounting principles be required to be
disclosed on a balance sheet or footnotes thereto,
which were not disclosed in such balance sheet and
the notes related thereto.
(b) There have also been furnished to each of
the Banks the unaudited consolidated balance sheet of
the Parent and its Subsidiaries as at September 30,
1997, and consolidated statements of income and cash
flows for the portion of the fiscal year then ended.
Such balance sheet and statements of income and cash
flows were prepared in accordance with generally
accepted accounting principles and fairly present the
financial condition of the Parent and its
Subsidiaries as of the close of business on such date
and the results of operations for the portion of the
fiscal year then ended. There are no liabilities,
contingent or otherwise, of the Parent or any of its
Subsidiaries, as of such date, that would in
accordance with generally accepted accounting
principles be required to be disclosed on a balance
sheet or footnotes thereto, which were not disclosed
in such balance sheet and the notes related thereto.
Section 7.4.2. Pro Forma Balance Sheet. There
will be furnished to the Agent on or before the
Closing Date an unaudited pro forma consolidated and
consolidating balance sheet of the Parent, its
Subsidiaries, the Target and the Target's
Subsidiaries as of the Closing Date which properly
gives effect to the issuance of the Additional Senior
Notes, the Loans to be made on such date and the
Takeover (the "Pro Forma Balance Sheet"). The Pro
Forma Balance Sheet fairly presents the financial
condition of the Parent, its Subsidiaries, the Target
and the Target's subsidiaries as at the date thereof
on a pro forma basis and properly gives effect in
accordance with generally accepted accounting
principles to the application of the pro forma
adjustments to such balance sheet necessary to
reflect the transactions contemplated by this
Agreement, the other Loan Documents and the Takeover
Documents. There are no liabilities or contingent
liabilities of the Parent, its Subsidiaries, the
Target and the Target's Subsidiaries which are not
disclosed in the Pro Forma Balance Sheet or in the
notes thereto.
Section 7.4.3. Projections. The projections of
the annual operating budgets of the Borrowers, the
consolidated balance sheets and consolidated cash
flow statements of the Parent, its Subsidiaries, the
Target and the Target's Subsidiaries for the five
consecutive fiscal years of the Parent commencing
with the 1998 fiscal year of the Parent, copies of
which have been delivered to the Agent, disclose all
assumptions made with respect to general economic,
financial and market conditions used in formulating
such projections. To the knowledge of the Parent and
the Borrowers, no facts exist that (individually or
in the aggregate) would result in any material change
in any of such projections. The projections are
based upon reasonable estimates and assumptions, have
been prepared on the basis of the assumptions stated
therein and reflect the reasonable estimates of the
Parent and the Borrowers of the results of operations
and other information projected therein.
Section 7.5. No Material Changes; Solvency.
(a)Since the date of the Pro Forma Balance Sheet
there have been no changes in the business or
financial condition or results of operations of the
Parent, its Subsidiaries, the Target and the Target's
Subsidiaries which have been, either individually or
in the aggregate, materially adverse to the Parent,
its Subsidiaries, the Target and the Target's
Subsidiaries, taken as a whole.
(b)Each of the Parent, its Subsidiaries, the
Target and the Target's Subsidiaries (before and
after giving effect to the transactions contemplated
by this Agreement, the other Loan Documents and the
Takeover Documents) (i) is solvent, (ii) has assets
having a fair value in excess of its liabilities,
(iii) has assets having a fair value in excess of the
amount required to pay its liabilities on existing
debts as such debts become absolute and matured, and
(iv) has, and expects to continue to have, access to
adequate capital for the conduct of its business and
the ability to pay its debts from time to time
incurred in connection with the operation of its
business as such debts mature.
Section 7.6. Business. Both before and after
giving effect to the Takeover, each of the Parent, its
Subsidiaries, the Target and the Target's Subsidiaries
enjoys peaceful and undisturbed possession under all
leases of real or personal property of which it is lessee,
none of which contains any unusual or burdensome provision
which will materially adversely affect or impair the
operations of such Person and all such leases are valid
and subsisting and in full force and effect. Both before
and after giving effect to the Takeover, each such Person
owns or possesses the right to use all the franchises,
rights, licenses, operating rights, patents, trademarks,
permits, service marks, trade names, and copyrights
necessary for the conduct of its business as conducted and
as proposed to be conducted, without any conflict with the
rights of others.
Section 7.7. Litigation. There is no restraining
order, injunction or pending litigation applicable to the
Takeover or the transactions contemplated by this
Agreement, the other Loan Documents or the Takeover
Documents. There are no actions, suits, proceedings or
investigations of any kind pending or threatened against
the Parent, any of its Subsidiaries, the Target or any of
the Target's Subsidiaries before any court, arbitrator,
tribunal or administrative agency or board that, if
adversely determined, would be likely, either in any case
or in the aggregate, to materially adversely affect the
properties, assets, financial condition, prospects or
business of the Parent, its Subsidiaries, the Target or
the Target's Subsidiaries, taken as a whole, or materially
impair the right of any of such Persons to carry on its
business substantially as now conducted by it, or result
in any substantial liability not adequately covered by
insurance, or for which adequate reserves are not
maintained on the Pro Forma Balance Sheet, or which
question the validity of this Agreement or any of the
other Loan Documents or the Takeover Documents, or any
action taken or to be taken pursuant hereto or thereto
(including the consummation of the Takeover).
Section 7.8. [Intentionally Omitted].
Section 7.9. Compliance With Other Instruments,
Laws, Etc. None of the Parent, any of its Subsidiaries,
the Target or any of the Target's Subsidiaries is in
violation of any provision of its charter documents,
bylaws, or any agreement or instrument to which it may be
subject or by which it or any of its properties may be
bound or any decree, order, judgment, statute, license,
rule or regulation, in any of the foregoing cases in a
manner that could result in the imposition of substantial
penalties or materially and adversely affect the financial
condition, properties or business of the Parent, its
Subsidiaries, the Target and the Target's Subsidiaries,
taken as a whole.
Section 7.10. Tax Status. The Parent, its
Subsidiaries, the Target and the Target's Subsidiaries (a)
have made or filed all federal, state or other income and
all other tax returns, reports and declarations required
by any jurisdiction to which any of them is subject, (b)
have paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns,
reports and declarations, except those being contested in
good faith and by appropriate proceedings and (c) have set
aside on their books provisions reasonably adequate for
the payment of all taxes for periods subsequent to the
periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any
jurisdiction, and the officers of such Persons know of no
basis for any such claim. The Norwegian Borrower is
organized in such a way that it qualifies for the income
tax exemption provisions of Section 51A of the Norwegian
Income and Assets Tax Act, and has elected to be taxed
under such provisions.
Section 7.11. No Event of Default. No Default or
Event of Default has occurred and is continuing. No
default has occurred and its continuing, and no right of
rescission, cancellation or termination exists, under the
Takeover Documents.
Section 7.12. Holding Company and Investment
Company Acts. None of the Parent, any of its
Subsidiaries, the Target and the Target's Subsidiaries is
a "holding company", or a "subsidiary company" of a
"holding company", or an affiliate" of a "holding
company", as such terms are defined in the Public Utility
Holding Company Act of 1935; nor is it an "investment
company", or an "affiliated company" or a "principal
underwriter" of an "investment company", as such terms are
defined in the Investment Company Act of 1940.
Section 7.13. Absence of Encumbrances, Etc.
Except with respect to Permitted Liens, there is no
financing statement, security agreement, chattel mortgage,
real estate mortgage or other document filed or recorded
with any filing records, registry, or other public office,
that purports to cover, affect or give notice of any
present or possible future lien on, or security interest
in, any assets or property of the Parent, any of its
Subsidiaries, the Target and the Target's Subsidiaries or
rights thereunder.
Section 7.14. Perfection of Security Interest;
Collateral. All filings, assignments, pledges and
deposits of documents or instruments have been made and
all other actions have been taken that are necessary under
applicable law, to establish and perfect the Agent's
security interest in the Collateral. The Collateral and
the Agent's rights with respect to the Collateral are not
subject to any setoff, claims, withholdings or other
defenses. A Borrower, the Parent, or a Subsidiary of the
Parent, as applicable is the owner of the Collateral free
from any lien, security interest, encumbrance and any
other claim or demand, except for Permitted Liens. All of
the Obligations of the Borrowers to the Banks and the
Agent under or in respect of the Loan Documents will, at
all times from and after the execution and delivery of
each of the Security Documents, be entitled to the
benefits of and be secured by each of such Security
Documents in accordance with the terms hereof and thereof.
Section 7.15. Certain Transactions. Except for
arm's length transactions pursuant to which the Parent,
any of its Subsidiaries, the Target or any of the Target's
Subsidiaries makes payments in the ordinary course of
business upon terms no less favorable than such Person
could obtain from third parties, none of the officers,
directors, or employees of the Parent, any of its
Subsidiaries, the Target or any of the Target's
Subsidiaries is presently a party to any contract,
agreement or other arrangement providing for the
furnishing of services (other than for services as
employees, officers and directors) to or by, providing for
rental of real or personal property to or from, or
otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of such
Person, any corporation, partnership, trust or other
entity in which any officer, director, or any such
employee has a substantial interest or is an officer,
director, trustee or partner.
Section 7.16. Employee Benefit Plans.
Section 7.16.1. In General. Each Employee
Benefit Plan has been maintained and operated in
compliance in all material respects with the
provisions of ERISA and, to the extent applicable,
the Code, including but not limited to the provisions
thereunder respecting prohibited transactions.
Section 7.16.2. Terminability of Welfare Plans.
Under each Employee Benefit Plan which is an employee
welfare benefit plan within the meaning of Section
3(1) or Section 3(2)(B) of ERISA, no benefits are due
unless the event giving rise to the benefit
entitlement occurs prior to plan termination (except
as required by Title I, Part 6 of ERISA). Either of
the US Borrowers or the Parent or an ERISA Affiliate,
as appropriate, may terminate each such Plan at any
time (or at any time subsequent to the expiration of
any applicable bargaining agreement) in the
discretion of such Person without liability to any
Person.
Section 7.16.3. Guaranteed Pension Plans;
Multiemployer Plans. Neither of the US Borrowers,
the Parent nor any ERISA Affiliate has sponsored,
maintained, made any contributions to or has any
liability in respect of any Guaranteed Pension Plan
or Multiemployer Plan.
Section 7.16.4. Neither of the Target or the
Norwegian Borrower has any obligation under any
individual or joint pension plan or agreement that is
not either (i) fully funded or (ii) fully insured by
a Norwegian licensed insurance company.
Section 7.17. Regulations U and X; Use of
Proceeds. The US Borrowers will use the proceeds of the
US Revolver Loans solely to consummate the Takeover in
accordance with the Takeover Documents, to refinance
existing Indebtedness of the US Borrowers, and for general
corporate purposes. The US Borrowers will obtain Letters
of Credit solely for general corporate purposes and will
obtain the Tender Guaranty solely for the purposes
described in the definition of such term. The Dutch
Borrower will use the proceeds of the Dutch Term A Loan
and the Dutch Term B Loan solely to consummate the
Takeover in accordance with the Takeover Documents. The
Norwegian Borrower will use the proceeds of the Norwegian
Revolver Loans and the Norwegian Term A Loan solely to
refinance existing Indebtedness of the Target and the
Target's Subsidiaries and for general corporate purposes.
No portion of any Loan is to be used, and no portion of
the Tender Guaranty or any Letter of Credit is to be
obtained, for the purpose of purchasing or carrying any
"margin security" or "margin stock" as such terms are used
in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224. No
portion of the proceeds of any Loans is to be used, and no
portion of the Tender Guaranty or any Letter of Credit is
to be obtained, for the purpose of (a) knowingly
purchasing, or providing credit support for the purchase
of, Ineligible Securities from a Section 20 Subsidiary
during any period in which such Section 20 Subsidiary
makes a market in such Ineligible Securities, (b)
knowingly purchasing, or providing credit support for the
purchase of, during the underwriting or placement period,
any Ineligible Securities being underwritten or privately
placed by a Section 20 Subsidiary, or (c) making, or
providing credit support for the making of, payments of
principal or interest on Ineligible Securities
underwritten or privately placed by a Section 20
Subsidiary and issued by or for the benefit of the Parent,
any of its Subsidiaries, the Target and any of the
Target's Subsidiaries.
Section 7.18. Environmental Compliance. Each of
the Parent, its Subsidiaries, the Target and the Target's
Subsidiaries has taken all steps reasonably necessary to
investigate the past and present condition and usage of
the real estate owned or leased by it and the operations
conducted thereon and, based upon such diligent
investigation, has determined that:
(a)none of the Parent, its Subsidiaries, the
Target and the Target's Subsidiaries or any operator
of its real estate or any operations thereon is in
violation, or alleged violation, of any judgment,
decree, order, law, license, rule or regulation
pertaining to environmental matters, including
without limitation, those arising under the Resource
Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation
and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act, or
any statute, regulation, ordinance, order or decree
of the United States of America or any state or other
jurisdiction thereof, or any other nation or
jurisdiction relating to health, safety or the
environment, including, without limitation, any
international conventions to which their business or
assets are subject (hereinafter "Environmental
Laws"), which violation could reasonably be expected
to have a material adverse effect on the business,
assets or financial condition of such Persons, taken
as a whole;
(b)except as set forth on Schedule 7.18 attached
hereto, none of the Parent, its Subsidiaries, the
Target and the Target's Subsidiaries has received
notice from any third party including, without
limitation any federal, state or local governmental
authority, (i) that any one of them has been
identified by the United States Environmental
Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site
listed on the National Priorities List, 40 C.F.R.
Part 300 Appendix B (1986); (ii) that any hazardous
waste, as defined by 42 U.S.C. Section 9601(5), any
hazardous substances as defined by 42 U.S.C. Section
9601(14), any pollutant or contaminant as defined by
42 U.S.C. Section 9601(33) and any toxic substances,
oil or hazardous materials or other chemicals or
substances regulated by any Environmental Laws
("Hazardous Substances") which any one of them has
generated, transported or disposed of has been found
at any site at which a federal, state or local agency
or other third party has conducted or has ordered
that any of such Persons conduct a remedial
investigation, removal or other response action
pursuant to any Environmental Law; or (iii) that it
is or shall be a named party to any claim, action,
cause of action, complaint, or legal or
administrative proceeding (in each case, contingent
or otherwise) arising out of any third party's
incurrence of costs, expenses, losses or damages of
any kind whatsoever in connection with the release of
Hazardous Substances;
(c)except as set forth on Schedule 7.18 attached
hereto: (i) no portion of the real estate owned or
leased by the Parent, its Subsidiaries, the Target
and the Target's Subsidiaries and no Vessel has been
used for the handling, processing, storage or
disposal of Hazardous Substances except in accordance
in all material respects with applicable
Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous
Substances is located on any portion of the Real
Estate; (ii) in the course of any activities
conducted by such Persons or operators of such
Person's properties, no Hazardous Substances have
been generated or are being used on the Real Estate
or any Vessel except in accordance in all material
respects with applicable Environmental Laws; (iii)
there have been no releases (i.e. any past or present
releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping,
disposing or dumping) or threatened releases of
Hazardous Substances on, upon, into or from the
properties (including, without limitation, the
Vessels) of any of such Persons which releases could
reasonably be expected to have a material adverse
effect on the business, assets or financial condition
of such Person; (iv) to the best of such Person's
knowledge, there have been no releases on, upon, from
or into any real property in the vicinity of any of
such real estate which, through soil or groundwater
contamination, may have come to be located on, and
which could reasonably be expected to have a material
adverse effect on the business, assets or financial
condition of such Person; and (v) in addition, any
Hazardous Substances that have been generated on any
of the real estate have been transported offsite only
by carriers having an identification number issued by
the EPA, treated or disposed of only by treatment or
disposal facilities maintaining valid permits as
required under applicable Environmental Laws, which
transporters and facilities have been and are, to the
best of such Person's knowledge, operating in
material compliance with such permits and applicable
Environmental Laws;
(d)none of the Parent, its Subsidiaries, the
Target or the Target's Subsidiaries nor any of the
real estate is subject to any applicable
environmental law requiring the performance of
Hazardous Substances site assessments, or the removal
or remediation of Hazardous Substances, or the giving
of notice to any governmental agency or the recording
or delivery to other Persons of an environmental
disclosure document or statement by virtue of the
transactions set forth herein and contemplated
hereby, or as a condition to the effectiveness of any
transactions contemplated hereby; and
(e)all of the Vessels comply in all material
respects with all applicable international
conventions, national, federal, state and other
governmental laws and regulations; the rules of the
classification societies under which the Vessels are
classed and any contractual obligations regarding the
prevention of pollution and other marine
environmental hazards, including the transportation
and management of hazardous substances and waste
disposal, and the Parent and its Subsidiaries have
made all required payments and contributions to
statutory environmental insurance schemes and other
environmental insurance schemes applicable to the
Parent and its Subsidiaries and customary for the
business and operations conducted by them.
Section 7.19. Subsidiaries, Capitalization. (a)
Each Subsidiary (whether direct or indirect) of the Parent
is set forth on Schedule 7.19 attached hereto. Except to
the extent permitted under Section 9.3(f), none of the
Parent, its Subsidiaries, the Target and the Target's
Subsidiaries is engaged in any joint venture or
partnership with any other Person.
(b)Marine Operators' capital stock consists
solely of 100 shares of authorized common stock, no
par value per share, of which 100 shares are
outstanding, fully paid and nonassessable and are
owned beneficially and of record by the Parent.
(c)Marine Asset's capital stock consists solely
of 3,000 shares of authorized common stock, $.01 par
value per share, of which 100 shares are outstanding,
fully paid and nonassessable and are owned
beneficially and of record by the Parent.
(d)The Dutch Borrower's capital stock consists
solely of 200 shares, of which 40 shares are
outstanding, fully paid and non assessable and are
owned beneficially and of record by the Parent.
(e)The Target's share capital consists solely of
12,303,132 issued and outstanding registered shares
of 10 NOK par value, of which at least 99% will be
owned by the Dutch Borrower.
(f)The Norwegian Borrower's capital stock
consists solely of 26,239 issued and outstanding
shares of NOK 1,000 par value, all of which shares
are owned beneficially and of record by the Target.
Section 7.20. Chief Executive Office; Books and
Records.
(a)Each of the US Borrowers' and the Parent's
chief executive office is at 250 North American
Court, Houma, Louisiana 70363, at which location
their respective books and records are kept. The
Dutch Borrower's registered office is at Aert Von
Nesstraat, 45 Vierde Verdieping, 3012CA, Rotterdam,
The Netherlands, at which location its books and
records are kept. The Target's registered office is
at 6090, Fosnavag, Norway, at which location its
books and records are kept. The Norwegian Borrower's
registered office is at 6090, Fosnavag, Norway, at
which location its books and records are kept.
Saevik Supply U.K.'s registered office is at Hill
House, 1 Little New Street, London EC4A 3TR, at which
location its books and records are kept.
(b)Marine Operators' federal employer
identification number is 72-109-6124. Marine Assets'
federal employer identification number is 72-125-
2404. The Parent's federal employer identification
number is 72-125-2405. The Dutch Borrower's chamber
of commerce number is 14144202. The Target's
registered number 976853938. The Norwegian
Borrower's registered number is 976854020. Saevik
Supply U.K.'s registered number is 1275998.
Section 7.21. Disclosure. None of this
Agreement, the other Loan Documents or the Takeover
Documents or the other information furnished by the
Parent, its Subsidiaries, the Target or the Target's
Subsidiaries to the Agent or the Banks contains any untrue
statement of a material fact or omits to state a material
fact (known to such Person in the case of any document or
information not furnished by it) necessary in order to
make the statements herein or therein not misleading.
There is no fact known to any such Person which materially
adversely affects, or which is reasonably likely in the
future to materially adversely affect, exclusive of
effects resulting from changes in general economic
conditions, the business, assets, financial condition or
prospects of such Persons, taken as a whole.
Section 7.22. Fiscal Year. The Parent and each
of its Subsidiaries has a fiscal year which is the twelve
months ending on December 31 of each year.
Section 7.23. No Labor Agreements. Except as
described on Schedule 7.23, none of the Parent, its
Subsidiaries, the Target or the Target's Subsidiaries has
any labor agreements in effect with any unionized group of
employees.
Section 7.24. Concerning the Vessels.
(a)Schedule 7.24(a) sets forth a true and
correct list describing each of the Vessels owned on
the Closing Date by either of the US Borrowers and
correctly sets forth whether each such Vessel is
owned by Marine Assets or Marine Operators. All
Vessels registered under the laws of the United
States of America (the "US Flag Vessels") are
described as such on Schedule 7.24(a). All Vessels
registered under the laws of Vanuatu (the "Vanuatu
Flag Vessels") are described as such on Schedule
7.24(a). Each such Vessel has been appropriately
registered under the laws of the United States of
America or Vanuatu, as the case may be, and as of the
Closing Date except as disclosed to the Banks in
writing, neither of the US Borrowers own any Vessels
other than the US Flag Vessels and the Vanuatu Flag
Vessels.
(b)Schedule 7.24(b) sets forth a true and
correct list describing each of the Vessels owned on
the Closing Date by the Target, the Norwegian
Borrower or any of the Target's other Subsidiaries
and correctly sets forth the registered and
beneficial ownership of each such Vessel. All
Vessels registered under the laws of Norway (the
"Norwegian Flag Vessels") are described as such on
Schedule 7.24(b). All Vessels registered under the
laws of the United Kingdom (the "UK Flag Vessels")
are described as such on Schedule 7.24(b). Each such
Vessel has been appropriately registered under the
laws of Norway or the United Kingdom, as the case may
be, and as of the Closing Date except as disclosed to
the Banks in writing none of the Target, the
Norwegian Borrower nor any of the Target's other
Subsidiaries owns any Vessels other than the
Norwegian Flag Vessels and the UK Flag Vessels.
(c)Each US Flag Vessel complies with all
applicable requirements of the Shipping Act of 1916,
as amended and in effect, and all applicable
regulations thereunder. Each Vanuatu Flag Vessel
complies with all applicable requirements of the
maritime laws of Vanuatu and the United States of
America and all applicable regulations thereunder.
Each of the US Borrowers and the Parent is a citizen
of the United States for purposes of operating each
of the US Flag Vessels in the coastwise trade in
accordance with Section 2 of the Shipping Act of
1916, as amended and in effect, and the regulations
thereunder. Each bareboat or demise charterer of
each of the US Flag Vessels operated in the coastwise
trade of the United States (i) is a citizen of the
United States for purposes of operating and
maintaining such US Flag Vessels in the coastwise
trade in accordance with Section 2 of the Shipping
Act of 1916, as amended and in effect, and the
regulations thereunder or (ii) is in compliance with
the citizenship requirements set forth in 46 App.
U.S.C.A. Section 883-1. Each of the Vessels listed
on Schedule 7.24(c) attached hereto is covered by a
valid Coast Guard Certificate of Inspection, and
Schedule 7.24(d) attached hereto lists the load line
Certificate or Class of those Vessels classed by the
American Bureau of Shipping (or any other
classification society or societies satisfactory to
the Agent and the Banks). Each US Flag Vessel
operated and maintained as a vessel in the coastwise
trade of the United States is so operated in
accordance with the Shipping Act of 1916, as amended
and in effect, and the regulations thereunder, and
all other US Flag Vessels if operated and maintained
in the coastwise trade would be eligible to be so
operated in accordance with the Shipping Act of 1916,
as amended and in effect, and the regulations
thereunder. Each Norwegian Flag Vessel and the use
and operation thereof complies with all applicable
requirements of the maritime laws and regulations of
Norway and all international conventions applicable
thereto, including, without limitation, any
applicable citizenship requirements, except where the
Parent or any of its Subsidiaries has obtained a
waiver thereof or exemption therefrom. Each UK Flag
Vessel and the use and operation thereof complies
with all applicable requirements of the maritime laws
and regulations of the United Kingdom and all
international conventions applicable thereto,
including, without limitation, any applicable
citizenship requirements.
(d)Each Vessel is covered by hull and machinery,
protection and indemnity, war risk, loss of earnings
and excess liability insurance in accordance with the
requirements of the applicable Vessel Mortgage and
the Deed of Covenants relating thereto.
Section 7.25. No Amendments to Takeover
Documents. None of the Parent, its Subsidiaries, the
Target or any of the Target's Subsidiaries has amended or
agreed to any amendment to any of the Takeover Documents
in the form delivered to the Agent and the Banks on the
Closing Date. Each of the representations and warranties
made by any of such Persons in the Takeover Documents was
true and correct in all material respects when made and
continues to be true and correct in all material respects
on the Closing Date.
Section 7.26. Concerning Saevik Management.
Saevik Management does not own any material assets or
conduct any material business or operations.
Section 8. AFFIRMATIVE COVENANTS. The Parent and
each of the Borrowers jointly and severally covenant and
agree that, so long as any Loan, Unpaid Reimbursement
Obligation, the Tender Guaranty, Letter of Credit or Note
is outstanding or any Bank has any obligation to make any
Loans, London Branch has any obligation to issue the
Tender Guaranty, or the Agent has any obligation to issue,
extend or renew any Letters of Credit hereunder:
Section 8.1. Punctual Payment. The Borrowers
will duly and punctually pay or cause to be paid the
principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, Tender Guaranty
Fees, the Commitment Fees, the Agent's Fee and all other
amounts provided for in this Agreement, all in accordance
with the terms of this Agreement, the Notes and the other
Loan Documents.
Section 8.2. Maintenance of Office. Each of the
US Borrowers and the Parent will maintain its chief
executive office at 250 North American Court, Houma,
Louisiana 70363, or at such other place in the United
States of America as such Person shall designate upon
written notice to the Agent, where notices, presentations
and demands to or upon such Person in respect of the Loan
Documents may be given or made. The Dutch Borrower will
maintain its registered office at Aert Von Nesstraat, 45
Vierde Verdieping, 3012CA, Rotterdam, The Netherlands or
at such other place in the Netherlands as the Dutch
Borrower shall designate upon written notice to the Agent,
where notices, presentments and demands to or upon the
Dutch Borrower in respect of the Loan Documents may be
given or made. The Norwegian Borrower will maintain its
registered office at 6090, Fosnavag, Norway or at such
other place in Norway as the Norwegian Borrower shall
designate upon written notice to the Agent, where notices,
presentments and demands to or upon the Norwegian Borrower
in respect of the Loan Documents may be given or made.
Saevik Supply U.K. will maintain its registered office at
Hill House, 1 Little New Street, London EC4A 3TR or at
such other place in the United Kingdom as Saevik Supply
U.K. shall designate upon written notice to the Agent,
where notices, presentments and demands to or upon Saevik
Supply U.K. in respect of the Loan Documents may be given
or made.
Section 8.3. Records and Accounts. Each of the
Borrowers and the Parent will and the Parent will cause
each of its other Subsidiaries to (a) keep true and
accurate records and books of account in which full, true
and correct entries will be made in accordance with
generally accepted accounting principles and (b) maintain
adequate accounts and reserves for all taxes (including
income taxes), depreciation, depletion, obsolescence and
amortization of its properties, contingencies, and other
reserves.
Section 8.4. Financial Statements, Certificates
and Information. The Parent and the Borrowers will
deliver to each of the Banks:
(a)as soon as practicable, but in any event not
later than ninety (90) days after the end of each
fiscal year of the Parent, the consolidated balance
sheet of the Parent and its Subsidiaries as at the
end of such year, and the related consolidated
statement of income and consolidated statement of
cash flow for such year, each setting forth in
comparative form the figures for the previous fiscal
year and all statements to be in reasonable detail,
prepared in accordance with generally accepted
accounting principles, and certified without
qualification by Coopers & Lybrand LLP or by other
independent certified public accountants of
recognized national standing, which statements shall
include a footnote which identifies any Default or
Event of Default;
(b)as soon as practicable, but in any event not
later than forty-five (45) days after the end of each
of the first three fiscal quarters of the Parent,
copies of the unaudited consolidated balance sheet of
the Parent and its Subsidiaries as at the end of such
quarter, and the related consolidated statement of
income and consolidated statement of cash flow for
the portion of the Parent's fiscal year then elapsed,
all in reasonable detail and prepared in accordance
with generally accepted accounting principles,
together with a certification by the principal
financial or accounting officers of each of the
Borrowers and the Parent that the information
contained in such financial statements fairly
presents the financial position of the Parent and its
Subsidiaries on the date thereof (subject to year-end
adjustments);
(c)promptly upon the delivery of the financial
statements referred to in subsections (a) and (b)
above, a statement certified by the principal
financial or accounting officers of the Borrowers and
the Parent in substantially the form of Exhibit C
attached hereto and setting forth in reasonable
detail computations (i) calculating the Leverage
Ratio for purposes of determining the Applicable
Margin and (ii) evidencing compliance with the
covenants contained in Section 10 hereof and (if
applicable) reconciliations to reflect changes in
generally accepted accounting principles since the
Balance Sheet Date;
(d)promptly upon the filing or mailing thereof,
copies of all material information of a financial
nature (i) filed with the Securities and Exchange
Commission, (ii) sent to the stockholders of the
Parent or (iii) received by the Parent or any of its
Subsidiaries from the Target or any of its
Subsidiaries;
(e)from time to time such other financial data
and information (including accountants' management
letters) as the Agent or any Bank may reasonably
request; and
(f)once each calendar year, or more frequently
as determined by the Agent if an Event of Default
shall have occurred and be continuing, upon the
request of the Agent, the Borrowers will, at their
own expense, obtain and deliver to the Agent
appraisal reports in form and substance and from
appraisers satisfactory to the Agent, stating the
then current fair market values of all or any portion
of the Vessels, provided, that no more than one such
appraisal per calendar year shall be conducted and
made at the expense of the Borrowers. The first such
appraisal following the Closing Date shall be
completed by February 28, 1998. Such appraisal may
include an inspection of each such Vessel by marine
engineers or other surveyors selected by the Agent in
its sole discretion.
Section 8.5. Notices.
Section 8.5.1. Defaults. The Parent and the
Borrowers will promptly notify the Agent in writing
of the occurrence of any Default or Event of Default.
If any Person shall give any notice or take any other
action in respect of a claimed default (whether or
not constituting an Event of Default) under this
Agreement or any other note, evidence of
indebtedness, indenture or other obligation to which
or with respect to which the Parent or any of its
Subsidiaries is a party or obligor, whether as
principal or surety, the Parent and the Borrowers
shall forthwith give written notice thereof to the
Agent, describing the notice or action and the nature
of the claimed default.
Section 8.5.2. Environmental Events. The
Parent and the Borrowers will promptly give notice to
the Agent (a) of any material violation of any
Environmental Law that the Parent or any of its
Subsidiaries reports in writing or is reportable by
such Person in writing (or for which any written
report supplemental to any oral report is made) to
any federal, state or local environmental agency and
(b) upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including
a notice from any agency of potential environmental
liability, or any national, federal, state or local
environmental agency or board, that has the potential
to materially adversely affect the assets,
liabilities, financial conditions or operations of
the Parent and its Subsidiaries, taken as a whole, or
the Agent's security interests pursuant to the
Security Documents.
Section 8.5.3. Notification of Claims against
Collateral. The Parent and the Borrowers will,
immediately upon becoming aware thereof, notify the
Agent in writing of any setoff, claims, withholdings
or other defenses to which any of the Collateral, or
the Agent's rights with respect to the Collateral,
are subject, involving in any one case an amount of
$1,000,000 or more.
Section 8.5.4. Notice of Litigation and
Judgments. The Parent and the Borrowers will, and
the Parent will cause each of its other Subsidiaries
to, give notice to the Agent in writing within
fifteen (15) days of becoming aware of any litigation
or proceedings or any pending litigation and
proceedings affecting the Parent or any of its
Subsidiaries or to which the Parent or any of its
Subsidiaries is or becomes a party involving an
uninsured claim against the Parent or any of its
Subsidiaries that could reasonably be expected to
have a materially adverse effect on the Parent and
its Subsidiaries, taken as a whole, and stating the
nature and status of such litigation or proceedings.
The Parent and the Borrowers will, and the Parent
will cause each of its other Subsidiaries to, give
notice to the Agent, in writing, in form and detail
satisfactory to the Agent, within ten (10) days of
any judgment not covered by insurance, final or
otherwise, against the Parent or any of its
Subsidiaries in an amount in excess of $1,000,000.
Section 8.6. Corporate Existence; Maintenance of
Properties. Except as permitted under Section 9.5.1
hereof, the Parent and each of the Borrowers will do or
cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights
and franchises and those of the Parent's other
Subsidiaries. The Parent and each of the Borrowers (a)
will cause all of its properties and those of the Parent's
other Subsidiaries used or useful in the conduct of its
business or the business of such Subsidiaries to be
maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, (b) will
cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as
in the judgment of such Person may be necessary so that
the business carried on in connection therewith may be
properly and advantageously conducted at all times, and
(c) will, and the Parent will cause each of its other
Subsidiaries to, continue to engage primarily in the
businesses now conducted by them or as contemplated by the
Takeover Documents and in related businesses; provided
that nothing in this Section 8.6 shall prevent the Parent
or any of the Borrowers from discontinuing the operation
and maintenance of any of its properties or those of the
Parent's other Subsidiaries if such discontinuance is, in
the judgment of such Person, desirable in the conduct of
its or their business and does not in the aggregate
materially adversely affect the business of the Parent and
its Subsidiaries on a consolidated basis.
Section 8.7. Insurance. The Parent and each of
the Borrowers will, and the Parent will cause each of its
other Subsidiaries to, maintain with financially sound and
reputable insurers insurance with respect to its
properties and business against such casualties and
contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in
similar geographic areas and in amounts, containing such
terms, in such forms and for such periods as may be
reasonable and prudent and in accordance with the terms of
the Security Documents and the Vessel Mortgages.
Section 8.8. Taxes and Claims. The Parent and
each of the Borrowers will, and the Parent will cause each
of its other Subsidiaries to, duly pay and discharge, or
cause to be paid and discharged, before the same shall
become overdue, all taxes, assessments and other
governmental charges (other than taxes, assessments and
other governmental charges imposed by jurisdictions other
than those in which such Person's business is principally
conducted that in the aggregate are not material to the
business or assets of the Borrowers on an individual basis
or of the Parent and its Subsidiaries on a consolidated
basis) imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or
profits therefrom, as well as all claims for labor,
materials, or supplies that if unpaid might by law become
a lien or charge upon any of its property; provided that
any such tax, assessment, charge, levy or claim need not
be paid if the validity or amount thereof shall currently
be contested in good faith by appropriate proceedings and
if such Person shall have set aside on its books adequate
reserves with respect thereto to the extent required in
accordance with generally accepted accounting principles;
and provided further that the Parent, each of the
Borrowers and each other Subsidiary of the Parent will pay
all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security
therefor.
Section 8.9. Inspection of Properties and Books,
Etc. The Parent and each of the Borrowers shall permit
the Banks, through the Agent or any of the Banks' other
designated representatives, to visit and inspect any of
the properties of the Parent, the Borrowers or any of the
Parent's other Subsidiaries to examine the books of
account of the Parent and its Subsidiaries (and to make
copies thereof and extracts therefrom), and to discuss the
affairs, finances and accounts of the Parent and its
Subsidiaries with, and to be advised as to the same by,
its and their officers, all at such reasonable times and
intervals as the Agent or any Bank may reasonably request.
Section 8.10. Compliance with Laws, Contracts,
Licenses, and Permits. The Parent and each of the
Borrowers will, and the Parent will cause each of its
other Subsidiaries to, comply in all material respects
with (a) the applicable laws and regulations wherever its
business is conducted or its assets are owned or situated,
including all Environmental Laws, (b) the provisions of
its charter documents and by-laws, (c) all stock exchange
or other applicable regulatory rules, including without
limitation the provisions of, and regulations issued under
the Norwegian Securities Trading Act 1985, including,
without limitation, the mandatory offer requirements in
Section 1-5 of such Act, and the practices established by
the Oslo Stock Exchange for public tenders of shares in
companies listed on the Oslo Stock Exchange, including
mandatory share offers made under Section 1-5 of such Act,
(d) all agreements and instruments by which it or any of
its properties may be bound, including, without
limitation, the Tender Offer, (e) all applicable decrees,
orders, and judgments, and (f) the rules and requirements
of any classification society in which any Vessel is
classed. If any authorization, consent, approval, permit
or license from any officer, agency or instrumentality of
any government shall become necessary or required in order
that the Parent, the Borrower or any of the Parent's other
Subsidiaries may fulfill any of its obligations hereunder
or any of the Takeover Documents to which such Person is a
party, the Parent and the Borrower will, or will cause
such other Subsidiary to, immediately take or cause to be
taken all reasonable steps within the power of such Person
to obtain such authorization, consent, approval, permit or
license and furnish the Agent and the Banks with evidence
thereof.
Section 8.11. Use of Proceeds. The US Borrowers
will use the proceeds of the US Revolver Loans solely to
consummate the Takeover in accordance with the Takeover
Documents, to refinance existing Indebtedness of the US
Borrowers, and for general corporate purposes. The US
Borrowers will obtain Letters of Credit solely for general
corporate purposes and will obtain the Tender Guaranty
solely for the purposes set forth in the definition of
such term. The Dutch Borrower will use the proceeds of
the Dutch Term A Loan and the Dutch Term B Loan solely to
consummate the Takeover in accordance with the Takeover
Documents. The Norwegian Borrower will use the proceeds
of the Norwegian Revolver Loans and the Norwegian Term A
Loan solely to refinance existing Indebtedness of the
Target and the Target's Subsidiaries and for general
corporate purposes.
Section 8.12. Concerning the Vessels. Each of
the Borrowers shall at all times operate each Vessel in
compliance in all respects with all applicable
governmental rules, regulations and requirements
pertaining to such Vessels (including, without limitation,
all requirements of the Shipping Act of 1916, as amended
and in effect, applicable to each US Flag Vessel) and, to
the extent required to be classed, in compliance in all
respects with all rules, regulations and requirements of
the applicable classification society. Each of the US
Borrowers and the Parent shall at all times maintain and
shall assure that each demise or bareboat charterer of the
US Flag Vessels operated and maintained in the coastwise
trade of the United States shall maintain, as required,
its citizenship of the United States for purposes of
operating each of the US Flag Vessels in the coastwise
trade in accordance with Section 2 of the Shipping Act of
1916, as amended and in effect, and the regulations
thereunder or the citizenship requirements set forth in 46
App. U.S.C.A. Section 883-1. Upon request, the Borrowers
shall furnish to the Agent and the Banks the certificate
of each classification society covering each of the
Vessels listed on Schedule 7.24(d) attached hereto no
later than thirty (30) days after the end of each fiscal
year of the Parent. The Borrowers shall keep each Vessel
registered under the laws of the United States, Vanuatu,
Norway or the United Kingdom (as the case may be) and
shall maintain in full force and effect the Coast Guard
Certificate of Inspection (or the equivalent for any
Vanuatu Flag Vessel, Norwegian Flag Vessel and UK Flag
Vessel) of each such Vessel which requires such a
certificate and furnish to the Agent copies of all
renewals and extensions thereof. The Borrowers shall
maintain each UK Flag Vessel and Norwegian Flag Vessel
classed in the highest available class with a
classification society acceptable to the Agent, without
recommendations or exceptions of any kind, and shall
provide the Agent with a confirmation of class from the
relevant classification society upon request.
Section 8.13. Further Assurances. The Parent and
the Borrowers will and will cause each of the Parent's
other Subsidiaries to cooperate with the Banks and the
Agent and execute such further instruments and documents
as the Banks or the Agent shall reasonably request to
carry out to their satisfaction the transactions
contemplated by this Agreement, the other Loan Documents
and the Takeover Documents.
Section 8.14. Additional Guarantors. The Parent
and the Borrowers will cause each Subsidiary acquired or
formed after the Closing Date, contemporaneously with such
formation or acquisition, to (i) guaranty the Obligations
pursuant to a guaranty in form and substance satisfactory
to the Agent, which guaranty shall be a Security Document
hereunder and (ii) grant to the Agent, for the benefit of
the Banks and the Agent, a first priority perfected
security interest in its assets as collateral security for
such guaranty, pursuant to such documents as shall be in
form and substance satisfactory to the Agent; provided
that the requirements of this Section 8.14 shall not apply
to (a) the SWATH Subsidiary and (b) any other Subsidiary
formed after the Closing Date to the extent, in each case,
that such Subsidiary does not, and is not required
pursuant to the terms of the Indenture relating thereto
to, guaranty the obligations of the Parent under the
Senior Notes and/or the Additional Senior Notes.
Section 8.15. Compliance with Exemptions under
the Norwegian Maritime Act. The Parent, the Target and
the Norwegian Borrower will for the duration of this
Agreement comply with the conditions of an exemption dated
17 October 1997 granted by the Norwegian Ministry of
Business and Trade pursuant to Section 1 of the Norwegian
Maritime Act 1994 (the "Maritime Act"), whereby the
Norwegian Flag Vessels may continue to be registered in
the Norwegian Ordinary Ship Register after the Takeover,
including without limitation that the composition of the
board of directors of the Norwegian Borrower will comply
with the requirements of Section 1 of the Maritime Act.
Section 8.16. Acquisition of Shares of Target.
The Parent and the Borrowers will, and will cause their
Subsidiaries to, use their best efforts to, promptly after
the Closing Date, acquire any shares in the Target which
were not purchased by the Dutch Borrower pursuant to the
Tender Offer.
Section 8.17. Concerning the Norwegian Borrower,
Etc. The Parent shall take all steps necessary to cause,
on or before December 12, 1997, (i) the Norwegian Borrower
to become a party to this Agreement, (ii) each of the
Norwegian Security Documents, the Target Security
Documents, the Target Guaranty, the Target Pledge
Agreement and the Saevik Supply U.K. Guaranty, in each
case, in form and substance satisfactory to the Agent, to
be executed and delivered to the Agent, (iii) all
outstanding Indebtedness of the Norwegian Borrower and the
Target's other Subsidiaries, if any, to be refinanced or
assumed by the Banks hereunder by the extension of the
Norwegian Term A Loan and the Norwegian Revolver Loans,
and (iv) the Agent to have, for the benefit of the Banks
and the Agent, a perfected first priority security
interest in all of the assets currently securing such
outstanding Indebtedness of the Norwegian Borrower and
such other Subsidiaries of the Target, if any.
Section 9. CERTAIN NEGATIVE COVENANTS. The
Parent and each of the Borrowers jointly and severally
covenant and agree that, so long as any Loan, Unpaid
Reimbursement Obligation, the Tender Guaranty, Letter of
Credit or Note is outstanding or any Bank has any
obligation to make any Loans, London Branch has any
obligation to issue the Tender Guaranty, or the Agent has
any obligation to issue, extend or renew any Letters of
Credit hereunder:
Section 9.1. Restrictions on Indebtedness. The
Parent and each of the Borrowers will not, and the Parent
will not permit any of its other Subsidiaries to, create,
incur, assume, guarantee or be or remain liable,
contingently or otherwise, with respect to any
Indebtedness other than:
(a)Indebtedness to the Banks and the Agent
arising under any of the Loan Documents;
(b)Indebtedness of the Borrowers or the Parent
or their Subsidiaries in respect of current
liabilities incurred in the ordinary course of
business not incurred through (i) the borrowing of
money, or (ii) the obtaining of credit except for
credit on an open account basis customarily extended
and in fact extended in connection with normal
purchases of goods and services;
(c)Indebtedness in respect of taxes,
assessments, governmental charges or levies and
claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be
required to be made in accordance with the provisions
of Section 8.8;
(d)Indebtedness in respect of judgments or
awards that have been in force for less than the
applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of
which such Person shall at the time in good faith be
prosecuting an appeal or proceedings for review and
in respect of which a stay of execution shall have
been obtained pending such appeal or review;
(e)endorsements for collection, deposit or
negotiation and warranties of products or services,
in each case incurred in the ordinary course of
business;
(f)Indebtedness existing on Closing Date of this
Agreement and listed and described on Schedule 9.1
hereto;
(g)Indebtedness incurred after the date hereof
in connection with the acquisition or construction
(and within 120 days of such acquisition or
construction) of any real or personal property by the
Parent, the Borrowers or any other Subsidiary of the
Parent, Indebtedness assumed in connection with any
acquisition (whether of assets or stock) of a
business by any of such Persons, and Capitalized
Leases, provided that the aggregate principal amount
of all such Indebtedness under this clause (g) shall
not exceed $50,000,000 at any time;
(h)Indebtedness of a wholly-owned Subsidiary of
the Parent or a Borrower owing to the Parent or such
Borrower, provided that such Indebtedness is
evidenced by an intercompany note that shall be
subject to a first priority pledge in favor of the
Agent, for the benefit of the Banks and the Agent;
(i)contingent obligations arising in connection
with (i) surety, performance or other similar bonds
obtained in the ordinary course of business,
consistent with past practices, and (ii) standby
letters of credit issued in lieu of such bonds;
(j)Indebtedness in respect of the Senior Notes
and the Additional Senior Notes in an aggregate
principal amount not to exceed $210,000,000;
(k)Indebtedness of the Parent or either of the
US Borrowers with respect to the SWATH Vessel in an
aggregate principal amount not to exceed $10,000,000;
and
(l)additional unsecured subordinated
Indebtedness in an aggregate principal amount and on
terms and conditions (including, without limitation,
with respect to tenor, interest rate, and terms of
the subordination provisions relating thereto)
acceptable to the Agent and the Majority Banks, in
their sole discretion.
Section 9.2. Restrictions on Liens. The Parent
and each of the Borrowers will not, and the Parent will
not permit any of its other Subsidiaries to, (a) create or
incur or suffer to be created or incurred or to exist any
lien, encumbrance, mortgage, pledge, charge, restriction
or other security interest of any kind upon any of its
property or assets of any character whether now owned or
hereafter acquired, or upon the income or profits
therefrom; (b) transfer any of such property or assets or
the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or
performance of any other obligation in priority to payment
of its general creditors; (c) acquire, or agree or have an
option to acquire, any property or assets upon conditional
sale or other title retention or purchase money security
agreement, device or arrangement; (d) suffer to exist for
a period of more than sixty (60) days after the same shall
have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy
or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; (e) sell, assign,
pledge or otherwise transfer any accounts, contract
rights, general intangibles, chattel paper or instruments,
with or without recourse; or (f) enter into or permit to
remain in effect any agreement by which such Person agrees
not to encumber, mortgage, pledge, restrict or grant a
security interest in any of its assets, provided that the
Parent, each of the Borrowers and any other Subsidiary of
the Parent may create or incur or suffer to be created or
incurred or to exist any one or more of the following
Permitted Liens:
(i) liens to secure taxes, assessments and
other government charges in respect of obligations
not overdue or liens on properties to secure claims
for labor, material or supplies or other Vessel
operating expenses in respect of obligations not
overdue;
(ii) deposits or pledges made in connection
with, or to secure payment of, payroll taxes,
workmen's compensation, unemployment insurance, old
age pensions or other social security obligations;
(iii) deposits to secure the performance of
bids, trade contracts, leases, statutory obligations,
surety and performance bonds and other obligations of
a similar nature, in each case made or incurred in
the ordinary course of business and in respect of
obligations which are not overdue;
(iv) liens on properties in respect of
judgments or awards, the Indebtedness with respect to
which is permitted by Section 9.1(d) hereof;
(v) liens of carriers, warehousemen, mechanics
and materialmen, and other like liens on properties
in existence less than 120 days from the date of
creation thereof in respect of obligations not
overdue;
(vi) encumbrances consisting of easements,
rights of way, zoning restrictions, restrictions on
the use of real property and defects and
irregularities in the title thereto, landlord's or
lessor's liens under leases to which such Person is a
party, and other minor liens or encumbrances none of
which in the opinion of such Person interferes
materially with the use of the property affected in
the ordinary conduct of the business of such Person,
which defects do not individually or in the aggregate
have a materially adverse effect on the business of
the Parent and its Subsidiaries on a consolidated
basis;
(vii) liens outstanding on the Closing Date and
listed on Schedule 9.2 attached hereto;
(viii) security interests in and mortgages or
negative pledges on real or personal property
acquired or constructed after the Closing Date and
liens on assets acquired subject to such liens or
negative pledges, to secure Indebtedness of the type
and amount permitted by Section 9.1(g) hereof,
incurred or assumed in connection with the
acquisition of such property, which security
interests, mortgages or negative pledges cover only
the real or personal property so acquired (and the
accounts, contracts and insurance proceeds associated
with such property);
(ix) liens in favor of the Agent for the
benefit of the Banks and the Agent under the Loan
Documents; and
(ix) liens on the SWATH Vessel, charters
thereof and construction and related agreements with
respect thereto, to secure the Indebtedness permitted
by Section 9.1(k) hereof.
Section 9.3. Restrictions on Investments. The
Parent and each of the Borrowers will not, and the Parent
will not permit any of its other Subsidiaries to, make or
permit to exist or to remain outstanding any Investment
except:
(a)Investments in marketable direct or
guaranteed obligations of the United States of
America, the Netherlands or Norway that mature within
one (1) year from the date of purchase by such Person
and repurchase agreements relating to the foregoing;
(b)Investments in demand deposits, certificates
of deposit, bankers acceptances and time deposits of
commercial banks organized under the laws of any
country which is a member of the OECD (having total
assets in excess of $1,000,000,000;
(c)Investments in securities commonly known as
"commercial paper" issued by a corporation organized
and existing under the laws of the United States of
America or any state thereof that at the time of
purchase have been rated and the ratings for which
are not less than "P 1" if rated by Moody's Investors
Service, Inc. and not less than "A 1" if rated by
Standard and Poor's Ratings Group or similar Dutch or
Norwegian securities;
(d)Investments existing on the Closing Date and
listed on Schedule 9.3 attached hereto;
(e)Investments consisting of Indebtedness
permitted by Section 9.1(h) and Investments in a
Borrower or a Guarantor;
(f)Investments in joint ventures and non-
guarantor Subsidiaries in lines of business related
to the Borrowers' business not to exceed $20,000,000
in the aggregate; and
(g)Investments by the Parent in the Swath
Subsidiary in an aggregate amount not to exceed
$3,000,000.
Section 9.4. Distributions. None of the Borrowers
nor the Parent will make any Distributions other than
Distributions by the Borrowers to the Parent in an
aggregate amount for all Borrowers not to exceed in any
one fiscal year of the Borrowers the greater of (a) the
sum of (i) the scheduled payments of principal and
interest under the Senior Notes and the Additional Senior
Notes for such fiscal year plus (ii) the Borrowers'
allocable share of income taxes, franchise taxes,
professional fees and other operating expenses for such
year (it being understood that, with respect to the amount
of each Borrower's allocable share of income taxes, such
amount shall not exceed the amount of income taxes for
which such Borrower would have been liable had the
accounts of such Borrower not been consolidated with the
accounts of the Parent) and (b) an amount equal to twenty-
five percent (25%) of the net income of the Borrowers for
such fiscal year, provided that no Distribution (other
than Distributions in respect of taxes) shall be made if,
after giving effect to such Distribution or such payment
of principal or interest under the Senior Notes or the
Additional Senior Notes, a Default or Event of Default
shall have occurred and be continuing.
Section 9.5. Merger, Consolidation and Sale of
Assets.
Section 9.5.1. Mergers and Acquisitions. The
Parent and each of the Borrowers will not, and the
Parent will not permit any of its other Subsidiaries
to, become a party to any merger or consolidation,
except so long as no Default or Event of Default then
exists or would result therefrom, (i) the merger or
consolidation of one or more of the Subsidiaries of
the Parent with and into the Parent, (ii) the merger
or consolidation of two or more Subsidiaries of the
Parent provided, that in the case of the merger of a
guarantor Subsidiary with a non-guarantor Subsidiary,
the guarantor Subsidiary shall be the surviving
corporation in such merger, or (iii) so long as such
merger would not otherwise violate this Agreement,
the merger of one or more other corporations with and
into the Parent, a Borrower or a Subsidiary of a
Borrower, provided that in the case of any merger
permitted under this Section 9.5.1, if such merger or
consolidation involves either of the Borrowers, such
Borrower is the surviving corporation. The Parent
and each of the Borrowers will not, and the Parent
will not permit any of its other Subsidiaries to
agree to or effect any asset acquisition of a
business which is not engaged primarily in a line of
business substantially similar to the business now
conducted by the Borrowers.
Section 9.5.2. Disposition of Assets. The
Parent and each of the Borrowers will not, and the
Parent will not permit any of its other Subsidiaries
to, become a party to or agree to or effect any sale
or other disposition of assets, provided, that the
Parent, the Borrowers and the Parent's other
Subsidiaries may sell or otherwise dispose of any
assets so long as:
(i)immediately prior to and after, and after
giving effect to such sale or other disposition, no
Default or Event of Default shall then exist;
(ii)the aggregate net book value of all such
assets sold or otherwise disposed of in any one
fiscal year of the Parent shall not exceed an amount
equal to five percent (5%) of Consolidated Net
Tangible Assets, determined as at the end of the
immediately preceding fiscal year;
(iii)each such sale is to a third party on an
arms length basis for cash in an amount representing
fair and reasonable market value therefor; and
(iv) the applicable provisions of Section 4B
are complied with in connection with such sale or
disposition.
Section 9.6. Compliance with Environmental Laws.
Except as otherwise set forth on Schedule 7.18 attached
hereto, the Parent and each of the Borrowers will not, and
the Parent will not permit any of its other Subsidiaries
to, (a) use any of the real estate or any portion thereof
or any Vessel for the handling, processing, storage or
disposal of Hazardous Substances, except in accordance in
all material respects with applicable Environmental Laws,
(b) cause or permit to be located on any of the real
estate any underground tank or other underground storage
receptacle for Hazardous Substances, except in accordance
in all material respects with applicable Environmental
Laws, (c) generate any Hazardous Substances on any of the
real estate or any Vessel, except in accordance in all
material respects with applicable Environmental Laws, (d)
conduct any activity at any real estate or use any real
estate or any Vessel in any manner so as to cause a
release (i.e. releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping) or threatened
release of Hazardous Substances on, upon or into the real
estate or on or from such Vessel, except in accordance in
all material respects with applicable Environmental Laws,
or (e) otherwise conduct any activity at any real estate
or on any Vessel or use any real estate or any Vessel in
any manner that would violate, in any material respect,
any Environmental Law or bring such real estate or Vessel
in violation, in a material respect, of any Environmental
Law.
Section 9.7. Employee Benefit Plans.
(a)None of the US Borrowers nor the Parent nor
any ERISA Affiliate will:
(i)engage in any "prohibited
transaction" within the meaning of Section 406
of ERISA or Section 4975 of the Code which could
result in a material liability for the Parent or
any of its Subsidiaries; or
(ii)sponsor, maintain, make
contributions to or incur liabilities in respect
of any Guaranteed Pension Plan or Multiemployer
Plan.
(b)Neither the Norwegian Borrower nor the Dutch
Borrower will fail to comply with any statute, rule
or regulation of Norway or the Netherlands relating
to employee benefits or employee pensions or fail to
make any contribution required under any such statute
rule or regulation.
Section 9.8. Business Activities. None of the
Borrowers, the Guarantors nor the Parent will engage
directly or indirectly (whether through Subsidiaries or
otherwise) in any type of business other than business
involving the operation, ownership or management of
vessels used for transportation or service.
Section 9.9. Change of Chief Executive Office or
Corporate Name. None of the Borrowers, the Guarantors nor
the Parent will change its chief executive office, federal
employer identification number or registered number (as
the case may be) or its corporate name, unless it shall
have (a) given the Banks at least 30 days' advance written
notice of such change, and (b) filed in all necessary
jurisdictions such UCC-3 financing statements or other
documents as may be necessary to continue without
impairment or interruption the perfection and priority of
the liens on the Collateral in favor of the Agent pursuant
to the Security Documents.
Section 9.10. Fiscal Year. The Parent and its
Subsidiaries will not change the date of the end of its
fiscal year from that set forth in Section 7.22 hereof.
Section 9.11. Transactions with Affiliates.
Except as otherwise expressly permitted by the terms
hereof, the Parent and each of the Borrowers will not and
will not permit any of the Parent's other Subsidiaries to
engage in any transaction with any Affiliate on terms more
favorable to such Affiliate than would have been
obtainable on an arm's-length basis, considered from the
perspective of the Parent or such Borrower or Guarantor,
as the case may be.
Section 9.12. Modification of Certain Documents.
The Parent and the Borrowers will not and will not permit
the Parent's other Subsidiaries to, amend, supplement or
waive in any material respect any of the terms or
conditions of the Takeover Documents, the Senior Notes or
the Additional Senior Notes as set forth in the forms
thereof delivered to the Agent on or prior to the Closing
Date.
Section 9.13. Upstream Limitations. The Parent
and the Borrowers will not, nor will the Parent permit any
of its Subsidiaries to, enter into any agreement, contract
or arrangement (other than this Agreement and the other
Loan Documents) restricting the ability of any Subsidiary
of the Parent (other than the SWATH Subsidiary or other
Subsidiaries that are not Restricted Subsidiaries) to pay
or make dividends or distributions in cash or kind, to
make loans, advances or other payments of whatsoever
nature or to make transfers or distributions of all or any
part of its assets to the Parent or any of its
Subsidiaries.
Section 9.14. Inconsistent Agreements. The
Parent and the Borrower will not, nor will the Parent
permit any of its Subsidiaries to, enter into any
contract, arrangement or agreement containing any
provision which would be violated or breached by the
performance by the Parent, the Borrowers or any of the
Parent's other Subsidiaries of its obligations hereunder,
under any of the Loan Documents or under the Takeover
Documents.
Section 9.15. Concerning Saevik Management. The
Parent and the Borrowers will not permit Saevik Management
to have any assets or conduct any business or operations.
Section 10. FINANCIAL COVENANTS.
Section 10.1. Debt Service Coverage Ratio. The
Parent and the Borrowers will not permit the Debt Service
Coverage Ratio, determined at the end of each fiscal
quarter of the Parent, commencing with the fiscal quarter
ending March 31, 1998, to be less than 1.35:1 for the
fiscal quarter ending March 31, 1998 and 1.5:1 for each
fiscal quarter thereafter.
Section 10.2. Leverage Ratio. The Parent and the
Borrowers will not, permit the Leverage Ratio, determined
as at the end of each fiscal quarter of the Parent ending
during a period set forth in the table below, to be more
than the ratio set forth opposite such period in such
table:
@@
Period Ratio
Closing Date through June 29, 1998 4.25:1.0
June 30, 1998 through December 30, 1998 4.00:1.0
December 31, 1998 through December 30, 3.50:1.0
1999
December 31, 1999 and thereafter 3.00:1.0
@@
Section 10.3. Minimum Net Worth. The Parent and
the Borrowers will not, at any time, permit the
consolidated Net Worth of the Parent and its Subsidiaries
at any time to be less than the sum of $120,000,000 plus,
on a cumulative basis, 50% of positive consolidated Net
Income of the Parent and its Subsidiaries for each fiscal
quarter subsequent to the Closing Date plus 100% of the
net cash proceeds received by the Parent and its
Subsidiaries from the issuance of equity securities after
the Closing Date.
Section 10.4. Vessel Value Ratio. The Parent and
the Borrowers will not, at any time, permit the sum of (i)
the Outstanding Loans, plus (ii) the Maximum Drawing
Amount, plus (iii) all Unpaid Reimbursement Obligations to
be more than 65% of the appraised fair market value of the
Vessels subject to a first priority lien in favor of the
Agent, for the benefit of the Banks and the Agent,
pursuant to the Security Documents (as stated in the most
current appraisals delivered to the Agent pursuant to
Section 8.4(h) hereof).
Section 10.5. Concerning the Issuance of Equity.
The Parent, the Borrowers, the Banks and the Agent hereby
agree that, upon receipt by the Parent of not less than
$75,000,000 in net proceeds from the issuance after the
Closing Date of additional equity securities of the Parent
and the application of such proceeds to the prepayment of
the Loans as required pursuant to the provisions of
Section 4B.4, the parties hereto agree to amend the
financial covenants set forth herein to reflect the
decreased leverage of the Parent and its Subsidiaries.
Section 11. CLOSING CONDITIONS. The obligations
of the Banks to amend and restate the Existing Credit
Agreement and to convert the loans outstanding under the
Existing Credit Agreement into US Revolver Loans and the
letters of credit outstanding under the Existing Credit
Agreement into Letters of Credit hereunder and to make the
initial Loans hereunder, of London Branch to issue the
Tender Guaranty and of the Agent to issue the initial
Letter of Credit hereunder shall be subject to the
satisfaction of the following conditions precedent on or
prior to the Closing Date:
Section 11.1. Delivery of Documents.
(a) Each of the Loan Documents, other than the
Norwegian Security Documents, the Norwegian Vessel
Mortgage, the U.K. Vessel Mortgage, the Target Guaranty,
the Target Pledge Agreement, the Target Security
Documents, and the Saevik Supply U.K. Guaranty, shall have
been duly executed and delivered by the respective parties
thereto, shall be in full force and effect and shall be in
form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of
each such document.
(b) Each of the Takeover Documents shall have
been executed and delivered by the respective parties
thereto, shall be in full force and effect and shall be in
form and substance satisfactory to each of the Banks.
Each Bank shall have received certified copies of each of
the Takeover Documents.
Section 11.2. Certified Copies of Corporate
Documents. Each of the Banks shall have received from the
Parent, each of the Borrowers and each of the Guarantors,
other than the Target and its Subsidiaries, a copy,
certified by a duly authorized officer of such Person to
be true and complete on the Closing Date, of each of (a)
its charter or other incorporation documents as in effect
on such date of certification, and (b) its by-laws as in
effect on such date.
Section 11.3. Corporate Action. All corporate
action necessary for the valid execution, delivery and
performance by the Parent, each of the Borrowers and each
of the Guarantors of this Agreement and the other Loan
Documents to which it is or is to become a party shall
have been duly and effectively taken, and evidence thereof
satisfactory to the Banks shall have been provided to each
of the Banks.
Section 11.4. Incumbency Certificate. Each of
the Banks shall have received from the Parent, each of the
Borrowers and each of the Guarantors, other than the
Target and its Subsidiaries, an incumbency certificate,
dated as of the Closing Date, signed by a duly authorized
officer of such Person, and giving the name and bearing a
specimen signature of each individual who shall be
authorized (a) to sign, in the name and on behalf of such
Person, each of the Loan Documents to which such Person is
or is to become a party; (b) in the case of each of the
Borrowers, to make Loan Requests; and (c) to give notices
and to take other action on such Person's behalf under the
Loan Documents.
Section 11.5. Validity of Liens. The Security
Documents shall be effective to create in favor of the
Agent a legal, valid and enforceable first (except for
Permitted Liens entitled to priority under applicable law)
security interest in the Collateral, except for the assets
of the Target and its Subsidiaries. The US Vessel
Mortgage shall constitute a first preferred mortgage as
defined in 46 U.S.C. Section 31322, and the Vanuatu Vessel
Mortgage, the Norwegian Vessel Mortgage and the UK Vessel
Mortgage shall each constitute a first preferred mortgage
under the laws of Vanuatu, Norway and the United Kingdom,
as the case may be. All filings, recordings, deliveries
of instruments and other actions necessary or desirable in
the opinion of the Agent to perfect, protect and preserve
such security interests shall have been duly effected.
The Agent shall have received evidence thereof in form and
substance satisfactory to the Agent.
Section 11.6. Perfection Certificates and Lien
Search Results. The Agent shall have received from each
of the Borrowers a completed and fully executed Perfection
Certificate and the results of UCC and other lien searches
with respect to its Collateral, indicating no encumbrances
other than Permitted Liens and otherwise in form and
substance satisfactory to the Agent.
Section 11.7. Certificates of Insurance. The
Agent shall have received (a) a certificate of insurance
from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise
describing the insurance obtained in accordance with the
provisions of the Security Documents and (b) certified
copies of all policies evidencing such insurance (or
certificates therefore signed by the insurer or an agent
authorized to bind the insurer) showing the Agent as
additional insured or loss payee, as applicable.
Section 11.8. Financial Condition. The Banks
shall have received the financial statements and
projections referred to in Section Section 7.4.1, 7.4.2
and 7.4.3 hereof, and the Banks shall be satisfied that
such financial statements fairly present the business and
financial condition of the Parent and its Subsidiaries as
of the dates thereof and for the periods then ended. The
Banks shall have received a certificate of the Chief
Financial Officer of the Parent and the Borrowers in form
and substance satisfactory to the Banks demonstrating on a
pro forma basis after giving effect to the Indebtedness
evidenced by the Additional Senior Notes and all Loans to
be made on the Closing Date that the Leverage Ratio as at
the Closing Date shall not exceed 3.75 to 1.
Section 11.9. Solvency Certificate. Each of the
Banks shall have received an officer's certificate from
each of the Parent, the Borrowers and the Guarantors dated
as of the Closing Date as to the solvency of such Person
following the consummation of the Takeover and the other
transactions contemplated hereby, which such certificates
shall be in form and substance satisfactory to the Banks.
Section 11.10. Opinions of Counsel. Each of the
Banks and the Agent shall have received a favorable
opinion addressed to the Banks and the Agent, dated as of
the Closing Date, in form and substance satisfactory to
the Banks and the Agent, from:
(a)Jones, Walker, Waechter, Poitevent, Carrere &
Denegre, L.L.P., US counsel to the Parent and the
Borrowers, and
(b)Wouters Advocaten, Netherlands counsel to the
Parent and the Borrowers.
Section 11.11. Payment of Fees and Expenses. The
Borrowers shall have paid to the Agent for the accounts of
the Banks, the Closing Fees pursuant to Section 5.1
hereof, all fees and expenses of the Agent's special
counsel through the Closing Date, and all other amounts to
be paid pursuant to Section 16 as accrued through the
Closing Date. The Borrowers shall have paid all interest,
commitment fees and any other fees and expenses in respect
of the Existing Credit Agreement through the Closing Date,
calculated as of the Closing Date (pro-rated in the case
of any fractional periods).
Section 11.12. Borrowing Notice. The US
Borrowers shall have delivered to the Agent a Loan Request
with respect to any US Revolver Loan requested to be made
on the Closing Date.
Section 11.13. Appraisals of Vessels, Class
Confirmations. The Agent shall have received (i) from
marine surveyors satisfactory to the Agent a market value
appraisal of each of the Vessels owned by the Parent and
the US Borrowers and (ii) from the Parent a market value
appraisal of each of the Vessels owned by the Target and
the Target's Subsidiaries. Such appraisals shall be
satisfactory to the Agent in all respects. The Agent
shall have received a certificate from the classification
society with respect to each such Vessel, issued as of a
recent date and indicating that such Vessel is in
compliance with the requirements of applicable law for use
as intended.
Section 11.14. Unsecured Senior Debt Issuance.
The Agent shall have received certified copies of the
Indenture and all other documents and instruments which
govern the Indebtedness evidenced by the Additional Senior
Notes, which documents and instruments shall be in form
and substance satisfactory to the Agent in all respects.
The Agent shall have received evidence satisfactory to it
that the Parent has received $99,000,000 in net proceeds
of the Additional Senior Notes.
Section 11.15 Consummation of the Takeover. The
Takeover shall have been duly consummated on the Closing
Date in all respects in accordance with the terms of the
Takeover Documents, including without limitation the
unconditional tender of at least 90% of the shares in the
Target and the Agent shall have received evidence thereof
in form and substance satisfactory to it, including,
without limitation, confirmation from DNB Markets, Oslo,
that such percentage of the shareholders of the Target
have accepted the Tender Offer. None of the conditions
set forth in the Takeover Documents shall have been
amended, supplemented or waived without the prior consent
of the Agent. The aggregate purchase price for all shares
in the Target (including all shares tendered on or before
the Closing Date and all shares to be acquired after the
Closing Date pursuant to any compulsory acquisition of
shares) and all expenditures and transactions costs
associated with the Takeover shall not exceed $310,000,000
in the aggregate.
Section 11A. CONDITIONS TO NORWEGIAN CLOSING.
The obligations of the Revolver Banks to make the initial
Norwegian Revolver Loans and of the Norwegian Term A Banks
to make the Norwegian Term A Loan hereunder shall be
subject to the satisfaction of the following conditions
precedent on or before December 12, 1997 (the date of the
satisfaction of such conditions referred to herein as the
"Norwegian Closing Date"):
Section 11A.1. Delivery of Documents. Each of
the Loan Documents shall have been duly executed and
delivered by the respective parties thereto, shall be in
full force and effect and shall be in form and substance
satisfactory to each of the Banks. Each Bank shall have
received a fully executed copy of each such document.
Section 11A.2. Certified Copies of Corporate
Documents. Each of the Banks shall have received from the
Target and each of its Subsidiaries, a copy, certified by
a duly authorized officer of such Person to be true and
complete on the Norwegian Closing Date, of each of (a) its
charter or other incorporation documents as in effect on
such date of certification, (b) its by-laws as in effect
on such date, or (c) in the case of companies organized
under the laws of Norway, its Articles of Association and
Certificate of Registration.
Section 11A.3. Corporate Action. All corporate
action necessary for the valid execution, delivery and
performance by the Target and each of its Subsidiaries of
this Agreement and the other Loan Documents to which it is
or is to become a party shall have been duly and
effectively taken, and evidence thereof satisfactory to
the Banks shall have been provided to each of the Banks.
Section 11A.4. Incumbency Certificate. Each of
the Banks shall have received from the Target and each of
its Subsidiaries, dated as of the Norwegian Closing Date,
signed by a duly authorized officer of such Person, and
giving the name and bearing a specimen signature of each
individual who shall be authorized (a) to sign, in the
name and on behalf of such Person, each of the Loan
Documents to which such Person is or is to become a party;
(b) in the case of each of the Borrowers, to make Loan
Requests; and (c) to give notices and to take other action
on such Person's behalf under the Loan Documents.
Section 11A.5. Validity of Liens. The Security
Documents shall be effective to create in favor of the
Agent a legal, valid and enforceable first (except for
Permitted Liens entitled to priority under applicable law)
security interest in the Collateral. The Norwegian Vessel
Mortgage and the UK Vessel Mortgage shall each constitute
a first preferred mortgage under the laws of Norway and
the United Kingdom, as the case may be. All filings,
recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Agent to
perfect, protect and preserve such security interests
shall have been duly effected. The Agent shall have
received evidence thereof in form and substance
satisfactory to the Agent.
Section 11A.6. Lien Search Results. The Agent
shall have received from each of the Norwegian Borrower
the results lien searches with respect to its Collateral,
indicating no encumbrances other than Permitted Liens and
otherwise in form and substance satisfactory to the Agent.
Section 11A.7. Certificates of Insurance. The
Agent shall have received (a) a certificate of insurance
from an independent insurance broker dated as of the
Norwegian Closing Date, identifying insurers, types of
insurance, insurance limits, and policy terms, and
otherwise describing the insurance obtained in accordance
with the provisions of the Security Documents and (b)
certified copies of all policies evidencing such insurance
(or certificates therefore signed by the insurer or an
agent authorized to bind the insurer) showing the Agent as
additional insured or loss payee, as applicable.
Section 11A.8. Opinions of Counsel. Each of the
Banks and the Agent shall have received a favorable
opinion addressed to the Banks and the Agent, dated as of
the Closing Date, in form and substance satisfactory to
the Banks and the Agent, from (i) Thommessen Krefting
Greve Lund AS, Norwegian counsel to the Parent and the
Borrowers and (ii) Curtis Davis Garrard, United Kingdom
counsel to the Parent and the Borrowers.
Section 11A.9. Closing Certificate; Borrowing
Notice. The Agent shall have received a closing
certificate from the Parent, the Borrowers and each of the
Guarantors dated as of the Norwegian Closing Date, in form
and substance satisfactory to the Banks. The Norwegian
Borrower shall have delivered to the Agent a Loan Request
with respect to any Norwegian Revolver Loan requested to
be made on the Norwegian Closing Date.
Section 11A.10. Appraisals of Vessels, Class
Confirmations. The Agent shall have received from the
Parent a market value appraisal of each of the Vessels
owned by the Target and the Target's Subsidiaries. Such
appraisals shall be satisfactory to the Agent in all
respects. The Agent shall have received a certificate
from the classification society with respect to each such
Vessel, issued as of a recent date and indicating that
such Vessel is in compliance with the requirements of
applicable law for use as intended.
Section 12. CONDITIONS TO ALL BORROWINGS. Each
Banks' obligation to make any Loan, of London Branch to
issue the Tender Guaranty, and of the Agent to issue,
extend or renew any Letters of Credit, whether on or after
the Closing Date, shall also be subject to the
satisfaction of the following conditions precedent:
Section 12.1. Representations True; No Event of
Default. Each of the representations and warranties of
the Parent its Subsidiaries, the Target and the Target's
Subsidiaries contained in this Agreement, other Loan
Documents, the Takeover Documents or in any document or
instrument delivered pursuant to or in connection with
this Agreement or the Takeover Documents shall be true as
of the date as of which they were made and shall also be
true at and as of the time of the making of such Loan, the
issuance of the Tender Guaranty or the issuance, extension
or renewal of such Letter of Credit, with the same effect
as if made at and as of that time (except to the extent of
changes resulting from transactions contemplated or
permitted by this Agreement and the other Loan Documents
and changes occurring in the ordinary course of business
that singly or in the aggregate are not materially
adverse, and to the extent that such representations and
warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be
continuing.
Section 12.2. No Legal Impediment. No change
shall have occurred in any law or regulations thereunder
or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make
such Loan. It shall not be unlawful for the Agent, with
respect to any request relating to the issuance, extension
or renewal of a Letter of Credit, to issue, extend, or
renew, or for any Bank to participate in the issuance,
extension or renewal of, such Letter of Credit. It shall
not be unlawful for London Branch, with respect to the
issuance of the Tender Guaranty, to issue the Tender
Guaranty or for the Revolver Banks to participate in the
risk associated therewith. No material claim, action,
suit, investigation, decree, restraining order or law
shall have been made or issued that materially delays or
imposes materially adverse conditions upon the completion
of the Takeover. The Parent, its Subsidiaries, the Target
and its Subsidiaries shall have complied with all
applicable requirements of law and regulatory authority,
including without limitation all stock exchange or other
applicable regulatory rules, including without limitation
the provisions of, and regulations issued under the
Norwegian Securities Trading Act 1985, including, without
limitation, the mandatory offer requirements in Section 1-
5 of such Act, and the practices established by the Oslo
Stock Exchange for public tenders of shares in companies
listed on the Oslo Stock Exchange, including mandatory
share offers made under Section 1-5 of the such Act.
Section 12.3. Governmental Regulation. Each Bank
shall have received such statements in substance and form
reasonably satisfactory to such Bank as such Bank shall
require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the
Board of Governors of the Federal Reserve System.
Section 12.4. Proceedings and Documents. All
proceedings in connection with the transactions
contemplated by this Agreement, the other Loan Documents,
the Takeover Documents and all other documents incident
hereto and thereto shall be satisfactory in substance and
in form to the Banks and to the Agent and the Agent's
Special Counsel, and the Banks, the Agent and such counsel
shall have received all information and such counterpart
originals or certified or other copies of such documents
as the Agent may reasonably request.
Section 13. EVENTS OF DEFAULT; ACCELERATION; ETC.
Section 13.1 Events of Default and Acceleration.
If any of the following events ("Events of Default" or, if
the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time,
"Defaults") shall occur:
(a)any Borrower shall fail to pay any principal
of the Loans owing by such Borrower, or the US
Borrowers shall fail to pay any Reimbursement
Obligation, in each case when the same shall become
due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at
any other date fixed for payment;
(b)any Borrower shall fail to pay any interest
on the Loans, the Commitment Fee, any Letter of
Credit Fee, Tender Guaranty Fee, the Agent's Fee, or
other sums due hereunder or under any of the other
Loan Documents owing by such Borrower, within three
(3) days of when the same shall become due and
payable, whether at the stated date of maturity or
any accelerated date of maturity or at any other date
fixed for payment;
(c)(i) the Borrowers or the Parent shall fail to
comply with any of the covenants contained in Section
Section 8.4, 8.5, the first sentence of 8.6 or 9
hereof, or (ii) the Borrowers or the Parent shall
fail to comply with any of the covenants contained in
Section 10 or Section 8.17 hereof and such failure
continues for fourteen (14) days;
(d)any Borrowers or the Parent or any Guarantor
shall fail to perform any term, covenant or agreement
contained herein or in any of the other Loan
Documents (other than those specified elsewhere in
this Section 13.1) for thirty (30) days after written
notice of such failure has been given to the Parent
by the Agent;
(e)any representation or warranty of the Parent,
any Borrower or any Guarantor in this Agreement or
any of the other Loan Documents or in any other
document or instrument delivered pursuant to or in
connection with this Agreement shall prove to have
been false in any material respect upon the date when
made or deemed to have been made or repeated;
(f)the Parent, any Borrower, any Guarantor or
any of the Parent's other Subsidiaries (other than
Subsidiaries which are not Restricted Subsidiaries)
shall fail to pay at maturity, or within any
applicable period of grace, any obligation for
borrowed money in excess of $1,000,000 or credit
received or in respect of any Capitalized Leases, or
fail to observe or perform any material term,
covenant or agreement contained in any agreement by
which it is bound, evidencing or securing borrowed
money in excess of $1,000,000 or credit received or
in respect of any Capitalized Leases for such period
of time as would permit (assuming the giving of
appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to
accelerate the maturity thereof;
(g)the Parent, any Borrower or any of the
Parent's other Subsidiaries shall make an assignment
for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts
as they mature or become due, or shall petition or
apply for the appointment of a trustee or other
custodian, liquidator or receiver of any such Person
or of any substantial part of the assets of any such
Person or shall commence any case or other proceeding
relating to any such Person under any bankruptcy,
reorganization, arrangement, insolvency, readjustment
of debt, dissolution or liquidation or similar law of
any jurisdiction, now or hereafter in effect, or
shall take any action to authorize or in furtherance
of any of the foregoing, or if any such petition or
application shall be filed or any such case or other
proceeding shall be commenced against any such Person
and such Person shall indicate its approval thereof,
consent thereto or acquiescence therein, or the Dutch
Borrower shall commence proceedings relating to it
becoming dissolved ("ontbonden"), granted suspension
of payments ("surseance van betalin verleend") or
declared bankrupt ("failliet verklaard") or shall
take any action to authorize or in furtherance of any
of the foregoing, or if any such petition or
application shall be filed or any such case or other
proceeding shall be commenced against such Person and
such Person shall indicate its approval thereof,
consent thereto or acquiescence therein;
(h)a decree or order is entered appointing any
such trustee, custodian, liquidator or receiver or
adjudicating the Parent, any Borrower or any of the
Parent's other Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other
proceeding, or a decree or order for relief is
entered in respect of any such Person in an
involuntary case under federal bankruptcy laws as now
or hereafter constituted;
(i)there shall remain in force, undischarged,
unsatisfied and unstayed, for more than thirty days,
whether or not consecutive, any final judgment
against the Parent, any Borrower or any of the
Parent's other Subsidiaries that, with other
outstanding final judgments, undischarged, against
such Persons exceeds in the aggregate $1,000,000;
(j)if any of the Loan Documents or Takeover
Documents shall be cancelled, terminated, revoked or
rescinded otherwise than in accordance with the terms
thereof or with the express prior written agreement,
consent or approval of the Banks, or any action at
law, suit or in equity or other legal proceeding to
cancel, revoke or rescind any of the Loan Documents
or Takeover Documents shall be commenced by or on
behalf of the Parent, any Borrower or any of the
Parent's other Subsidiaries party thereto or any of
their respective stockholders, or any court or any
other governmental or regulatory authority or agency
of competent jurisdiction shall make a determination
that, or issue a judgment, order, decree or ruling to
the effect that, any one or more of the Loan
Documents or Takeover Documents is illegal, invalid
or unenforceable in accordance with the terms
thereof;
(k) the Parent, any Borrower or any of the
Parent's other Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of
any court or any administrative or regulatory agency
from conducting any material part of its business;
(l) there shall occur any material damage to,
or loss, theft or destruction of, any Collateral,
whether or not insured, or any strike, lockout, labor
dispute, embargo, condemnation, act of God or public
enemy, or other casualty, which in any such case
causes, for more than fifteen (15) consecutive days,
the cessation or substantial curtailment of revenue
producing activities at any facility of the Parent,
any Borrower or any of the Parent's other
Subsidiaries if such event or circumstance is not
covered by business interruption insurance and would
have a material adverse effect on the business or
financial condition of the Parent and its
Subsidiaries, taken as a whole;
(m) the Parent, any Borrower or any of the
Parent's other Subsidiaries shall be indicted for a
national or federal crime, a punishment for which
could include the forfeiture of any assets of any
such Person having a fair market value in excess of
$500,000;
(n)any person or group of persons (within the
meaning of Rule 13d-3 promulgated by the Securities
and Exchange Commission under the Securities Exchange
Act of 1934, as amended, but excluding persons who
are employees of the Parent or a Subsidiary of the
Parent) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of
25% or more of the outstanding shares of common stock
of the Parent; or, during any period of twelve
consecutive calendar months, individuals who were
directors of the Parent on the first day of such
period shall cease to constitute a majority of the
board of directors of the Parent;
(o) if the Parent shall at any time, legally or
beneficially own less than 100% of the shares of the
voting common stock of each of the US Borrowers or
less than 100% of the share capital of the Dutch
Borrower;
(p) the Dutch Borrower shall, at any time,
legally or beneficially own less than the greater of
(i) 90% of the share capital of the Target and (ii)
the highest percentage of the share capital of the
Target at any time owned by the Parent and its
Subsidiaries; or
(q) the Target shall at any time, legally or
beneficially own less than 100% of the share capital
of the Norwegian Borrower or Saevik Supply U.K.;
then, and in any such event, so long as the same may be
continuing, the Agent may, and upon the request of the
Majority Banks shall, by notice in writing to the
Borrowers declare all amounts owing with respect to this
Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon
forthwith become immediately due and payable without
presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by the Borrowers;
provided that in the event of any Event of Default
specified in Section Section 13.1(g), 13.1(h) or 13.1(j),
all such amounts shall become immediately due and payable
automatically and without any requirement of notice from
the Agent or any Bank.
Section 13.2 Termination of Commitments. If any
one or more of the Events of Default specified in Section
13.1(g), Section 13.1(h) or Section 13.1(j) shall occur,
any unused portion of the credit hereunder shall forthwith
terminate and each of the Banks shall be relieved of all
further obligations, if any, to make Loans to the
Borrowers, London Branch shall be relieved of all further
obligations to issue the Tender Guaranty, and the Agent
shall be relieved of all further obligations to issue,
extend or renew Letters of Credit. If any other Event of
Default shall have occurred and be continuing, or if on
any Drawdown Date or any date for issuing, extending or
renewing any Letter of Credit the conditions precedent to
the making of the Loans to be made on such Drawdown Date
or (as the case may be) to issuing, extending or renewing
such Letter of Credit on such other date are not
satisfied, the Agent may and upon the request of the
Majority Banks, shall, by notice to the Borrowers,
terminate the unused portion of the credit hereunder, and
upon such notice being given such unused portion of the
credit hereunder shall terminate immediately and each of
the Banks shall be relieved of all further obligations to
make Loans, London Branch shall be relieved of all further
obligations to issue the Tender Guaranty, and the Agent
shall be relieved of all further obligations, if any, to
issue, extend or renew Letters of Credit. If any such
notice is given to the Borrowers the Agent will forthwith
furnish a copy thereof to each of the Banks. No
termination of the credit hereunder shall relieve either
of the Borrowers of any of the Obligations or any of their
existing obligations to any of the Banks arising under any
other agreements or instruments.
Section 13.3 Remedies. In case any one or more
of the Events of Default shall have occurred and be
continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section
13.1 hereof, each Bank, if owed any amount with respect to
the Loans or the Reimbursement Obligations, may proceed to
protect and enforce its rights by suit in equity, action
at law or other appropriate proceeding, whether for the
specific performance of any covenant or agreement
contained in this Agreement and the other Loan Documents
or any instrument pursuant to which the Obligations to
such Bank are evidenced, including as permitted by
applicable law the obtaining of the ex parte appointment
of a receiver, and, if such amount shall have become due,
by declaration or otherwise, proceed to enforce the
payment thereof or any other legal or equitable right of
such Bank. No remedy herein conferred upon any Bank or
the Agent or the holder of any Note or purchaser of any
Letter of Credit Participation or Tender Guaranty
Participation is intended to be exclusive of any other
remedy and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder
or now or hereafter existing at law or in equity or by
statute or any other provision of law.
Section 13.4 Distribution of Collateral Proceeds.
In the event that, following the occurrence or during the
continuance of any Default or Event of Default, the Agent
or any Bank, as the case may be, receives any monies in
connection with the enforcement of any the Security
Documents, or otherwise with respect to the realization
upon any of the Collateral, such monies shall be
distributed for application as follows:
(a) First, to the payment of, or (as the case
may be) the reimbursement of the Agent for or in
respect of all reasonable costs, expenses,
disbursements and losses which shall have been
incurred or sustained by the Agent in connection with
the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of
all or any of the rights, remedies, powers and
privileges of the Agent under this Agreement or any
of the other Loan Documents or in respect of the
Collateral (including, without limitation, the
protection, insurance, repair, costs of preparing for
sale and sale of any Collateral) and to support the
provision of adequate indemnity to the Agent against
all taxes or liens which by law shall have, or may
have, priority over the rights of the Agent to such
monies;
(b) Second, to all other Obligations in such
order or preference as the Majority Banks may
determine; provided, that (i) distributions in
respect of such Obligations shall be made pari passu
among Obligations with respect to the Agent's Fee
payable under Section 5.2 hereof and all other
Obligations, (ii) distributions in respect of the
Obligations of the US Borrowers shall be made only
from the proceeds of the realization of the US
Collateral, (iii) distribution in respect of the
Dutch Obligations shall be made only from the
proceeds of the realization of the Dutch Collateral
and the US Collateral, (iv) distributions in respect
of the Norwegian Obligations shall be made only from
the proceeds of the realization of the Norwegian
Collateral and the US Collateral, (v) distributions
with respect to each type of Obligation such as
interest, principal, fees and expenses shall be made
among the Revolver Banks, the Fronting Bank, the
Norwegian Term A Banks, the Dutch Term A Banks and
the Dutch Term B Banks, as the case may be, shall be
made among the applicable Banks pro rata and (v) the
Agent may in its discretion make proper allowance to
take into account any Obligations not then due and
payable;
(c) Third, upon payment and satisfaction in
full or other provisions for payment in full
satisfactory to the Banks and the Agent of all of the
Obligations, to the payment of any obligations
required to be paid pursuant to Section 9-504(1)(c)
of the Uniform Commercial Code of the Commonwealth of
Massachusetts; and
(d) Fourth, the excess, if any, shall be
returned to the Borrowers or to such other Persons as
are entitled thereto.
Section 14. SETOFF. Regardless of the adequacy
of any collateral, during the continuance of any Event of
Default, any deposits or other sums credited by or due
from any of the Banks to any Borrower and any securities
or other property of any Borrower in the possession of
such Bank may be applied to or set off by such Bank
against the payment of Obligations and any and all other
liabilities, direct, or indirect, absolute or contingent,
due or to become due, now existing or hereafter arising,
of such Borrower to such Bank. Each of the Banks agrees
with each other Bank that (a) if an amount to be set off
is to be applied to Indebtedness of any Borrower to such
Bank, other than Indebtedness evidenced by the Notes held
by such Bank or constituting Reimbursement Obligations
owed to such Bank, such amount shall be applied ratably to
such other Indebtedness and to the Indebtedness evidenced
by all such Notes held by such Bank or constituting
Reimbursement Obligations owed to such Bank, and (b) if
such Bank shall receive from any Borrower, whether by
voluntary payment, exercise of the right of setoff,
counterclaim, cross action, enforcement of the claim
evidenced by the Notes held by, or constituting
Reimbursement Obligations owed to, such Bank by
proceedings against such Borrower at law or in equity or
by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or
otherwise, and shall retain and apply to the payment of
the Note or Notes held by, or Reimbursement Obligations
owed to, such Bank any amount in excess of its ratable
portion of the payments received by all of the Banks with
respect to the Notes held by, and Reimbursement
Obligations owed to, all of the Banks, such Bank will make
such disposition and arrangements with the other Banks
with respect to such excess, either by way of
distribution, pro tanto assignment of claims, subrogation
or otherwise as shall result in each Bank receiving in
respect of the Notes held by it or Reimbursement
Obligations owed it, its proportionate payment as
contemplated by this Agreement; provided that if all or
any part of such excess payment is thereafter recovered
from such Bank, such disposition and arrangements shall be
rescinded and the amount restored to the extent of such
recovery, but without interest.
Section 15. THE AGENT.
Section 15.1. Authorization. The Agent is
authorized to take such action on behalf of each of the
Banks and to exercise all such powers as are hereunder and
under any of the other Loan Documents and any related
documents delegated to the Agent, together with such
powers as are reasonably incident thereto, provided that
no duties or responsibilities not expressly assumed herein
or therein shall be implied to have been assumed by the
Agent. The relationship between the Agent and each of the
Banks is that of an independent contractor. The use of
the term "Agent" is for convenience only and is used to
describe, as a form of convention, the independent
contractual relationship between the Agent and each of the
Banks. Nothing contained in this Agreement or any of the
other Loan Documents shall be construed to create an
agency, trust or other fiduciary relationship between the
Agent and any of the Banks. As an independent contractor
empowered by the Banks to exercise certain rights and
perform certain duties and responsibilities hereunder and
under the other Loan Documents, the Agent is nevertheless
a "representative" of the Banks, as that term is defined
in Article 1 of the Uniform Commercial Code, for purposes
of actions for the benefit of the Banks and the Agent with
respect to all collateral security and guaranties
contemplated by the Loan Documents. Such actions include
the designation of the Agent as "secured party",
"mortgagee" or the like on all financing statements and
other documents and instruments, whether recorded or
otherwise, relating to the attachment, perfection,
priority or enforcement of any security interests,
mortgages or deeds of trust in collateral security
intended to secure the payment or performance of any of
the Obligations, all for the benefit of the Banks and the
Agent. The Agent is hereby authorized and empowered to
release Collateral without the consent of the Banks upon
the sale of such Collateral pursuant to Section 9.5.2
hereof.
Section 15.2. Employees and Agents. The Agent
may exercise its powers and execute its duties by or
through employees or agents and shall be entitled to take,
and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Agreement
and the other Loan Documents. The Agent may utilize the
services of such Persons as the Agent in its sole
discretion may reasonably determine, and all reasonable
fees and expenses of any such Persons shall be paid by the
Borrowers.
Section 15.3. No Liability. Neither the Agent
nor any of its shareholders, directors, officers or
employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable
for any waiver, consent or approval given or any action
taken, or omitted to be taken, in good faith by it or them
hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for
the consequences of any oversight or error of judgment
whatsoever, except that the Agent or such other Person, as
the case may be, may be liable for losses due to its
willful misconduct or gross negligence.
Section 15.4. No Representations. The Agent
shall not be responsible for the execution or validity or
enforceability of this Agreement, the Notes, the Letters
of Credit, any of the other Loan Documents or any
instrument at anytime constituting, or intended to
constitute, collateral security for the Notes, or for the
value of any such collateral security or for the validity,
enforceability or collectability of any such amounts owing
with respect to the Notes, or for any recitals or
statements, warranties or representations made herein or
in any of the other Loan Documents or in any certificate
or instrument hereafter furnished to it by or on behalf of
the Parent, any of the Borrowers or the Guarantors, or be
bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or
agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral
security for the Obligations or the Notes or to inspect
any of the properties, books or records of the Parent, any
of its Subsidiaries, the Target or any of its
Subsidiaries. The Agent shall not be bound to ascertain
whether any notice, consent, waiver or request delivered
to it by the Parent, any of the Borrowers, any Guarantor
or any holder of any of the Notes shall have been duly
authorized or is true, accurate and complete. The Agent
has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit-
worthiness or financial condition of the Parent, any of
the Borrowers or any of the Parent's other Subsidiaries.
Each Bank acknowledges that it has, independently and
without reliance upon the Agent or any other Bank, and
based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to
enter into this Agreement.
Section 15.5. Payments.
Section 15.5.1. Payments to Agent. A payment
by any of the Borrowers or any Guarantor to the Agent
hereunder or any of the other Loan Documents for the
account of any Bank shall constitute a payment to
such Bank. The Agent agrees promptly to distribute
to each Bank its pro rata share (in accordance with
its Revolver Percentage, Norwegian Term A Percentage,
Dutch Term A Percentage or Dutch Term B Percentage,
as the case may be) of payments received by the
Agent, except as otherwise expressly provided herein
or in any of the other Loan Documents.
Section 15.5.2. Distribution by Agent. If in
the opinion of the Agent the distribution of any
amount received by it in such capacity hereunder,
under the Notes or under any of the other Loan
Documents might involve it in liability, it may
refrain from making such distribution until its right
to make such distribution shall have been adjudicated
by a court of competent jurisdiction. If a court of
competent jurisdiction shall adjudge that any amount
received and distributed by the Agent is to be
repaid, each Person to whom any such distribution
shall have been made shall either repay to the Agent
its proportionate share of the amount so adjudged to
be repaid or shall pay over the same in such manner
and to such Persons as shall be determined by such
court.
Section 15.5.3. Delinquent Banks.
Notwithstanding anything to the contrary contained in
this Agreement or any of the other Loan Documents,
any Bank that fails (a) to make available to the
Agent its pro rata share of any Loan or to purchase
any Letter of Credit Participation or Tender Guaranty
Participation or (b) to comply with the provisions of
Section 14 with respect to making dispositions and
arrangements with the other Banks, where such Bank's
share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such
payments due and payable to all of the Revolver
Banks, the Fronting Bank, Norwegian Term A Banks,
Dutch Term A Banks or Dutch Term B Banks (as the case
may be), in each case as, when and to the full extent
required by the provisions of this Agreement, shall
be deemed delinquent (a "Delinquent Bank") and shall
be deemed a Delinquent Bank until such time as such
delinquency is satisfied. A Delinquent Bank shall be
deemed to have assigned any and all payments due to
it from the Borrowers, whether on account of
outstanding Loans, Unpaid Reimbursement Obligations,
interest, fees or otherwise, to the remaining
nondelinquent Revolver Banks, the Fronting Bank,
Norwegian Term A Banks, Dutch Term A Banks or Dutch
Term B Banks (as the case may be) for application to,
and reduction of, their respective pro rata shares of
all outstanding Loans and Unpaid Reimbursement
Obligations owing to such Banks. The Delinquent Bank
hereby authorizes the Agent to distribute such
payments to such nondelinquent Banks in proportion to
their respective pro rata shares of all outstanding
Loans and Unpaid Reimbursement Obligations. A
Delinquent Bank shall be deemed to have satisfied in
full a delinquency when and if, as a result of
application of the assigned payments to all
outstanding Loans and Unpaid Reimbursement
Obligations of such nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Loans
and Unpaid Reimbursement Obligations have returned to
those in effect immediately prior to such delinquency
and without giving effect to the nonpayment causing
such delinquency.
Section 15.6. Holders of Notes. The Agent may
deem and treat the payee of any Note or the purchaser of
any Letter of Credit Participation or Tender Guaranty
Participation as the absolute owner thereof for all
purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a
subsequent holder.
Section 15.7. Indemnity. The Banks hereby
ratably agree to indemnify and hold harmless the Agent
from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent has
not been reimbursed by the Borrowers as required by
Section 16), and liabilities of every nature and character
arising out of or related to this Agreement, the Notes, or
any of the other Loan Documents or the transactions
contemplated or evidenced hereby or thereby, or the
Agent's actions taken hereunder or thereunder, except to
the extent that any of the same shall be directly caused
by the Agent's willful misconduct or gross negligence.
Section 15.8. Agent as Bank. In its individual
capacity, BankBoston shall have the same obligations and
the same rights, powers and privileges in respect to its
Commitments and the Loans made by it, and as the holder of
any of the Notes and as the purchaser of any Letter of
Credit Participations or Tender Guaranty Participations,
as it would have were it not also the Agent.
Section 15.9. Resignation. The Agent may resign
at any time by giving sixty (60) days' prior written
notice thereof to the Banks and the Borrowers. Upon any
such resignation, the Majority Banks shall have the right
to appoint a successor Agent. Unless a Default or Event
of Default shall have occurred and be continuing, such
successor Agent shall be reasonably acceptable to the
Borrowers. If no successor Agent shall have been so
appointed by the Majority Banks and shall have accepted
such appointment within thirty (30) days after the
retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a
successor Agent, which shall be a financial institution
having a rating of not less than A or its equivalent by
Standard & Poor's Ratings Group. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations, if any,
hereunder. After any retiring Agent's resignation, the
provisions of this Agreement and the other Loan Documents
shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was
acting as Agent.
Section 15.10. Notification of Defaults and
Events of Default. Each Bank hereby agrees that, upon
learning of the existence of a Default or an Event of
Default, it shall promptly notify the Agent thereof. The
Agent hereby agrees that upon receipt of any notice under
this Section 15.10 it shall promptly notify the other
Banks of the existence of such Default or Event of
Default.
Section 15.11. Duties in the Case of
Enforcement. In case one or more Events of Default has
occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the
Agent shall, if (i) so requested by the Majority Banks and
(ii) the Banks have provided to the Agent such additional
indemnities and assurances against expenses and
liabilities as the Agent may reasonably request, proceed
to enforce the provisions of the Security Documents
authorizing the sale or other disposition of all or any
part of the Collateral and exercise all or any such other
legal and equitable and other rights or remedies as it may
have in respect of such Collateral. The Majority Banks
may direct the Agent in writing as to the method and the
extent of any such sale or other disposition, the Banks
hereby ratably agreeing to indemnify and hold the Agent
harmless from all liabilities incurred in respect of all
actions taken or omitted in accordance with such
directions, provided that the Agent need not comply with
any such direction to the extent that the Agent reasonably
believes the Agent's compliance with such direction to be
unlawful or commercially unreasonable in any applicable
jurisdiction.
Section 16. EXPENSES. The Borrowers hereby
jointly and severally agree to pay (a) the reasonable
costs of producing and reproducing this Agreement, the
other Loan Documents and the other agreements and
instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the
Agent or any of the Banks (other than taxes based upon the
Agent's or any Bank's net income) on or with respect to
the transactions contemplated by this Agreement (the
Borrowers hereby jointly and severally agreeing to
indemnify the Agent and each Bank with respect thereto),
(c) the reasonable fees, expenses and disbursements of the
Agent's Special Counsel or any local counsel to the Agent
incurred in connection with the preparation,
administration or interpretation of the Loan Documents and
other instruments mentioned herein, each closing
hereunder, and amendments, modifications, approvals,
consents or waivers hereto or hereunder and the
termination hereof, (d) except as otherwise specified
herein, the fees, expenses and disbursements of the Agent
incurred by the Agent in connection with the preparation,
administration or interpretation of the Loan Documents and
other instruments mentioned herein, including all
engineering and appraisal charges, (e) all reasonable out-
of-pocket expenses (including without limitation
reasonable attorneys' fees and costs, which attorneys may
be employees of any Bank or the Agent, and reasonable
consulting, accounting, appraisal, investment banking and
similar professional fees and charges) incurred by any
Bank or the Agent in connection with (i) the enforcement
of or preservation of rights under any of the Loan
Documents against the Parent, any of the Borrowers, any of
the Guarantors or any of the Parent's other Subsidiaries
or the administration thereof after the occurrence of a
Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or the Agent's
relationship with the Parent, any of the Borrowers, any of
the Guarantors or any of the Parent's other Subsidiaries
under the Loan Documents or in connection with the
transactions contemplated hereby and (f) all reasonable
fees, expenses and disbursements of any Bank or the Agent
incurred in connection with UCC or other lien searches,
UCC filings or registration of any other Security
Documents, vessel mortgage recordings, or mortgage
recordings. The covenants of this Section 16 shall
survive payment or satisfaction of payment of amounts
owing with respect to the Notes.
Section 17. INDEMNIFICATION. The Borrowers
jointly and severally agree to indemnify and hold harmless
the Agent and the Banks from and against any and all
claims, actions and suits whether groundless or otherwise,
and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising
out of this Agreement, any of the other Loan Documents,
any of the Takeover Documents or the transactions
contemplated hereby or thereby, including, without
limitation, (a) any actual or proposed use by the
Borrowers, the Parent or any of the Parent's other
Subsidiaries of the proceeds of any of the Loans, Letters
of Credit or the Tender Guaranty, (b) any actual or
alleged infringement of any patent, copyright, trademark,
service mark or similar right of the Parent or any of the
Borrowers or any of the Parent's other Subsidiaries
comprised in the Collateral, (c) the Borrowers entering
into or performing this Agreement, any of the other Loan
Documents or any of the Takeover Documents or (d) with
respect to the Parent and its Subsidiaries and their
respective properties and assets, the violation of any
Environmental Law, the presence, disposal, escape,
seepage, leakage, spillage, discharge, emission, release
or threatened release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances
(including, but not limited to claims with respect to
wrongful death, personal injury or damage to property), in
each case including, without limitation, the reasonable
fees and disbursements of counsel and allocated costs of
internal counsel incurred in connection with any such
investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Banks and the
Agent shall be entitled to select their own counsel and,
in addition to the foregoing indemnity, the Borrowers
hereby jointly and severally agree to pay promptly the
reasonable fees and expenses of such counsel. If, and to
the extent that the obligations of the Borrowers under
this Section 17 are unenforceable for any reason, the
Borrowers hereby jointly and severally agree to make the
maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable
law. The obligations of the Borrowers under this Section
17 shall be "Obligations" hereunder. The covenants
contained in this Section 17 shall survive payment of
satisfaction in full of all other Obligations.
Section 18. SURVIVAL OF COVENANTS, ETC. All
covenants, agreements, representations and warranties made
herein, in the Notes, in any of the other Loan Documents
or in any documents or other papers delivered by or on
behalf of the Parent, any of the Borrowers or any of the
Guarantors pursuant to this Agreement shall be deemed to
have been relied upon by the Banks and the Agent,
notwithstanding any investigation heretofore or hereafter
made by any of them, and shall survive the making by the
Banks of the Loans and the issuance, extension or renewal
of any Letters of Credit or the Tender Guaranty, as herein
contemplated, and shall continue in full force and effect
so long as any Letter of Credit, the Tender Guaranty, or
any amount due under this Agreement or the Notes or any of
the other Loan Documents remains outstanding or any Bank
has any obligation to make any Loans, London Branch has
any obligation to issue the Tender Guaranty, or the Agent
has any obligation to issue, extend or renew any Letter of
Credit, and for such further time as may be otherwise
expressly specified in this Agreement. All statements
contained in any certificate or other paper delivered to
any Bank or the Agent at any time by or on behalf of the
Parent, any of the Borrowers or any of the Guarantors
pursuant to this Agreement or in connection with the
transactions contemplated hereby shall constitute
representations and warranties by such Person hereunder.
Section 19. ASSIGNMENT AND PARTICIPATION.
Section 19.1. Conditions to Assignment by Banks.
Except as provided herein, each Bank may assign to one or
more Eligible Assignees all or a portion of its interests,
rights and obligations under this Agreement (including (i)
all or a portion of its Revolver Commitment and the same
portion of Revolver Loans owing to it, the US Revolver
Note and/or Norwegian Revolver Note held by it and its
participating interest in the risk relating to any Letters
of Credit and the Tender Guaranty, (ii) all or a portion
of its Norwegian Term A Commitment and the same portion of
Norwegian Term A Loan owing to it and the Norwegian Term A
Note held by it, (iii) all or a portion of its Dutch Term
A Commitment and the same portion of the Dutch Term A Loan
owing to it and the Dutch Term A Note held by it and/or
(iv) all or a portion of its Dutch Term B Commitment and
the same portion of the Dutch Term B Loan owing to it and
the Dutch Term B Note held by it); provided that (a) each
of the Agent and, unless a Default or an Event of Default
shall have occurred and be continuing, the applicable
Borrower shall have given its prior written consent to
such assignment, which consent will not be unreasonably
withheld, (b) each such assignment shall be of a constant,
and not a varying, percentage of all the assigning Bank's
rights and obligations with respect to the Revolver Loans,
Norwegian Term A Loan, Dutch Term A Loan or Dutch Term B
Loan (as the case may be) under this Agreement, (c) each
assignment shall be in a minimum amount of $5,000,000 or a
larger integral multiple of $1,000,000 (or less, if such
assignment would be all of such Bank's interests, rights
and obligations in respect of its Revolver Loans,
Norwegian Term A Loan, Dutch Term A Loan or Dutch Term B
Loan, as the case may be), and (d) the parties to such
assignment shall execute and deliver to the Agent, for
recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of
Exhibit D hereto (an "Assignment and Acceptance"),
together with any Notes subject to such assignment. Upon
such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least
five (5) Business Days after the execution thereof, (i)
the assignee thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder, and
(ii) the assigning Bank shall, to the extent provided in
such assignment and upon payment to the Agent of the
registration fee referred to in Section 19.3, be released
from its obligations under this Agreement.
Section 19.2. Certain Representations and
Warranties; Limitations; Covenants. By executing and
delivering an Assignment and Acceptance, the parties to
the assignment thereunder confirm to and agree with each
other and the other parties hereto as follows: (a) other
than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim, the assigning
Bank makes no representation or warranty, express or
implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or
value of this Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or
the attachment, perfection or priority of any security
interest or mortgage; (b) the assigning Bank makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of the Parent, any
of the Borrowers, any of the Guarantors or any of the
Parent's other Subsidiaries or any other Person primarily
or secondarily liable in respect of any of the
Obligations, or the performance or observance by the
Parent, any of the Borrowers, any of the Guarantors and
the Parent's other Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this
Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or
thereto; (c) such assignee confirms that it has received a
copy of this Agreement, together with copies of the most
recent financial statements referred to in Section 7.4 and
Section 8.4 and such other documents and information as it
has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (d)
such assignee will, independently and without reliance
upon the assigning Bank, the Agent or any other Bank and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this
Agreement; (e) such assignee represents and warrants that
it is an Eligible Assignee; (f) such assignee appoints and
authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement
and the other Loan Documents as are delegated to the Agent
by the terms hereof or thereof, together with such powers
as are reasonably incidental thereto; (g) such assignee
agrees that it will perform in accordance with their terms
all of the obligations that by the terms of this Agreement
are required to be performed by it as a Bank; (h) such
assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance;
and (i) such assignee acknowledges that it has made
arrangements with the assigning Bank satisfactory to such
assignee with respect to its pro rata share of Letter of
Credit Fees and Tender Guaranty Fees, if any, in respect
of outstanding Letters of Credit and the Tender Guaranty
and with respect to its pro rata share of Commitment Fees.
Section 19.3. Register. The Agent shall maintain
a copy of each Assignment and Acceptance delivered to it
and a register or similar list (the "Register") for the
recordation of (a) the names and addresses of the Banks,
(b) the Revolver Percentages, Norwegian Term A
Percentages, Dutch Term A Percentages and/or Dutch Term B
Percentages of the Banks from time to time, (c) the
principal amount of the Loans owing to the Banks from time
to time, and (d) the Letter of Credit Participations and
Tender Guaranty Participations purchased by the Banks from
time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the
Borrowers, the Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder
for all purposes of this Agreement. The Register shall be
available for inspection by the Borrowers and the Banks at
any reasonable time and from time to time upon reasonable
prior notice. Upon each such recordation, the assigning
Bank agrees to pay to the Agent a registration fee in the
sum of $3,500, as to which payment the Borrowers shall
have no responsibility.
Section 19.4. New Notes. Upon its receipt of an
Assignment and Acceptance executed by the parties to such
assignment, together with each Note subject to such
assignment, the Agent shall (a) record the information
contained therein in the Register, and (b) give prompt
notice thereof to the Borrowers and the Banks (other than
the assigning Bank). Within five (5) Business Days after
receipt of such notice, the applicable Borrower, at its
own expense, shall execute and deliver to the Agent, in
exchange for each surrendered Note, a new Note to the
order of such Eligible Assignee in an amount equal to the
amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Bank has
retained some portion of its obligations hereunder, a new
Note to the order of the assigning Bank in an amount equal
to the amount retained by it hereunder. Such new Notes
shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes. Within five
(5) days of issuance of any new Notes pursuant to this
Section 19.4, the applicable Borrower shall deliver an
opinion of counsel, addressed to the Banks and the Agent,
relating to the due authorization, execution and delivery
of such new Notes and the legality, validity and binding
effect thereof, in form and substance satisfactory to the
Banks. The surrendered Notes shall be cancelled and
returned to the applicable Borrower.
Section 19.5. Participations. Each Bank may sell
participations to one or more banks or other entities in
all or a portion of such Bank's rights and obligations
under this Agreement and the other Loan Documents;
provided that (a) each such participation shall be in an
amount of $2,000,000 or a larger integral multiple of
$1,000,000, (b) any such sale or participation shall not
affect the rights and duties of the selling Bank hereunder
to the Borrowers and (c) the only rights granted to the
participant pursuant to such participation arrangements
with respect to waivers, amendments or modifications of
the Loan Documents shall be the rights to approve waivers,
amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the
term or increase the amount of the Commitment of such Bank
as it relates to such participant, reduce the amount of
any Commitment Fee or Letter of Credit Fees or Tender
Guaranty Participations to which such participant is
entitled or extend any regularly scheduled payment date
for principal or interest.
Section 19.6. Disclosure. The Parent and the
Borrowers agree that in addition to disclosures made in
accordance with standard and customary banking practices
any Bank may disclose information obtained by such Bank
pursuant to this Agreement to assignees or participants
and potential assignees or participants hereunder;
provided that such assignees or participants or potential
assignees or participants shall agree (a) to treat in
confidence such information unless such information
otherwise becomes public knowledge, (b) not to disclose
such information to a third party, except as required by
law or legal process and (c) not to make use of such
information for purposes of transactions unrelated to such
contemplated assignment or participation.
Section 19.7. Assignee or Participant Affiliated
with the Borrower. If any assignee Bank is an Affiliate
of the Parent or any of its Subsidiaries, then any such
assignee Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes
of agreeing to amendments or other modifications to any of
the Loan Documents or for purposes of making requests to
the Agent pursuant to Section 13.1 or Section 13.2, and
the determination of the Majority Banks, Majority Revolver
Banks and Requisite Banks shall for all purposes of this
Agreement and the other Loan Documents be made without
regard to such assignee Bank's interest in any of the
Loans. If any Bank sells a participating interest in any
of the Loans or Reimbursement Obligations to a
participant, and such participant is either of the
Borrowers or an Affiliate of the Parent or any of its
Subsidiaries, then such transferor Bank shall promptly
notify the Agent of the sale of such participation. A
transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes
of agreeing to amendments or modifications to any of the
Loan Documents or for purposes of making requests to the
Agent pursuant to Section 13.1 or Section 13.2 to the
extent that such participation is beneficially owned by
either of the Borrowers or any Affiliate of either of the
Borrowers, and the determination of the Majority Banks,
Majority Revolver Banks and Requisite Banks shall for all
purposes of this Agreement and the other Loan Documents be
made without regard to the interest of such transferor
Bank in the Loans to the extent of such participation.
Section 19.8. Miscellaneous Assignment
Provisions. Any assigning Bank shall retain its rights to
be indemnified pursuant to Section 17 with respect to any
claims or actions arising prior to the date of such
assignment. If any assignee Bank is not incorporated
under the laws of the United States of America or any
state thereof, it shall, prior to the date on which any
interest or fees are payable hereunder or under any of the
other Loan Documents for its account, deliver to the
Borrowers and the Agent certification as to its exemption
from deduction or withholding of any United States federal
income taxes. Anything contained in this Section 19 to
the contrary notwithstanding, any Bank may at any time
pledge all or any portion of its interest and rights under
this Agreement (including all or any portion of its Notes)
to any of the twelve Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section
341. No such pledge or the enforcement thereof shall
release the pledgor Bank from its obligations hereunder or
under any of the other Loan Documents.
Section 19.9. Assignment by Borrowers. The
Borrowers shall not assign or transfer any of their rights
or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
Section 20. NOTICES, ETC. Except as otherwise
expressly provided in this Agreement, all notices and
other communications made or required to be given pursuant
to this Agreement or the Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in
hand, mailed by United States registered or certified
first class mail, postage prepaid, sent by overnight
courier, or sent by telegraph, telecopy, facsimile or
telex and confirmed by delivery via courier or postal
service, addressed as follows:
(a)if to the Parent or any of the Borrowers, at
Trico Marine Services, Inc., 2401 Fountainview, Suite
626, Houston, Texas 77057, Attention: President, or
at such other address for notice as the Parent and
the Borrowers shall last have furnished in writing to
the Person giving the notice, with a copy to Jones,
Walker, Waechter, Poitevent, Carrere & Denegre,
L.L.P., Place St. Charles, 201 St. Charles Avenue,
New Orleans, Louisiana 70170, Attention: William B.
Masters, Esq.;
(b)if to the Agent, at 100 Federal Street,
Boston, Massachusetts 02110, USA, Attention: Daniel
O'Connor, Managing Director, or such other address
for notice as the Agent shall last have furnished in
writing to the Person giving the notice; and
(c)if to any Bank, at such Bank's address set
forth on Schedule 1.1 hereto, or such other address
for notice as such Bank shall have last furnished in
writing to the Person giving the notice.
Any such notice or demand shall be deemed to have
been duly given or made and to have become effective (i)
if delivered by hand, overnight courier or facsimile to a
responsible officer of the party to which it is directed,
at the time of the receipt thereof by such officer or the
sending of such facsimile and (ii) if sent by registered
or certified first-class mail, postage prepaid, on the
third Business Day following the mailing thereof. Each of
the Norwegian Borrower and the Dutch Borrower, by its
execution of this Agreement, irrevocably appoints the
Parent as its agent for the service of process in all
suits in connection with this Agreement and the other Loan
Documents.
Section 21. GOVERNING LAW. THIS AGREEMENT AND
EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS OTHERWISE
SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER SEAL
UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF SAID COMMONWEALTH
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF
LAW). EACH OF THE BORROWERS AND THE PARENT AGREES THAT
ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF
THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN
ANY SUCH SUIT BEING MADE UPON SUCH BORROWER OR THE PARENT
BY MAIL AT THE ADDRESS SPECIFIED IN Section 20. EACH OF
THE BORROWERS AND THE PARENT HEREBY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
Section 22. HEADINGS. The captions in this
Agreement are for convenience of reference only and shall
not define or limit the provisions hereof.
Section 23. COUNTERPARTS. This Agreement and any
amendment hereof may be executed in several counterparts
and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and
all of which together shall constitute one instrument. In
proving this Agreement it shall not be necessary to
produce or account for more than one such counterpart
signed by the party against whom enforcement is sought.
Section 24. ENTIRE AGREEMENT, ETC. The Loan
Documents and any other documents executed in connection
herewith or therewith express the entire understanding of
the parties with respect to the transactions contemplated
hereby. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated, except as
provided in Section 26.
Section 25. WAIVER OF JURY TRIAL. The Parent and
each of the Borrowers hereby waives its right to a jury
trial with respect to any action or claim arising out of
any dispute in connection with this Agreement, the Notes
or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of
such rights and obligations. Except as prohibited by law,
the Parent and each of the Borrowers hereby waives any
right it may have to claim or recover in any litigation
referred to in the preceding sentence any special,
exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages.
The Parent and each of the Borrowers (a) certifies that no
representative, agent or attorney of any Bank or the Agent
has represented, expressly or otherwise, that such Bank or
the Agent would not, in the event of litigation, seek to
enforce the foregoing waivers and (b) acknowledges that
each of the Agent and the Banks have been induced to enter
into this Agreement, the other Loan Documents to which it
is a party by, among other things, the waivers and
certifications contained herein.
Section 26. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Agreement,
any consent or approval required or permitted by this
Agreement to be given by one or more or all of the Banks
may be given, and any term of this Agreement or of any
other instrument related hereto or mentioned herein may be
amended, and the performance or observance by the Parent
and the Borrowers of any terms of this Agreement or such
other instrument or the continuance of any Default or
Event of Default may be waived (either generally or in a
particular instance and either retroactively or
prospectively) with, but only with, the written consent of
the Parent or the applicable Borrower (as the case may be)
and the written consent of the Majority Banks.
Notwithstanding the foregoing, (i) the amount of the
respective Loans, the rate of interest on the Notes (other
than interest accruing pursuant to Section 5.8 following
the effective date of any waiver by the Majority Banks of
the Default or Event of Default relating thereto), the
term of, and scheduled payments on, the Notes, the amount
of the Revolver Commitments of the Revolver Banks, the
Norwegian Limit, the amount of the Norwegian Term A
Commitments of the Norwegian Term A Banks, the amount of
the Dutch Term A Commitments of the Dutch Term A Banks,
the amount of the Dutch Term B Commitments of the Dutch
Term B Banks, and the rate of the Commitment Fee, Tender
Guaranty Fees and the Letter of Credit Fees hereunder may
not be changed without the written consent of the Parent,
the Borrowers and the written consent of each Bank
affected thereby; (ii) the definitions of Majority Banks
and this Section 26 may not be amended without the written
consent of each of the Banks; (iii) the definitions of
Majority Revolver Banks, Requisite Banks and Revolver
Percentage may not be amended without the written consent
of all of the Revolver Banks, (iv) the definition of
Norwegian Term A Percentage and Requisite Banks may not be
amended without the written consent of all of the
Norwegian Term A Banks, (v) the definition of Dutch Term A
Percentage may not be amended without the written consent
of all of the Dutch Term A Banks, (vi) the definition of
Dutch Term B Percentage may not be amended without the
written consent of all of the Dutch Term B Banks; (vii) no
Collateral may be released without the written consent of
all of the Banks if, after giving effect to such release,
the Parent and the Borrowers would not be in compliance
with Section 10.4 hereof; and (viii) the amount of the
Agent's Fee, any Tender Guaranty Fees or Letter of Credit
Fees payable for the Agent's account, Section 3 and
Section 15 may not be amended without the written consent
of the Agent. No waiver shall extend to or affect any
obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or
omission on the part of any Bank in exercising any right
shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the
Parent, the Borrowers or any Guarantor shall entitle the
Parent, the Borrowers or any Guarantor to other or further
notice or demand in similar or other circumstances.
Section 27. SEVERABILITY. The provisions of this
Agreement are severable and if any one clause or provision
hereof shall be held invalid or unenforceable in whole or
in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or
provision, or part thereof, in such jurisdiction, and
shall not in any manner affect such clause or provision in
any other jurisdiction, or any other clause or provision
of this Agreement in any jurisdiction.
Section 28. Pari Passu treatment.
(a)Notwithstanding anything to the contrary set
forth herein, each payment or prepayment of principal
and interest received after the occurrence of an
Event of Default hereunder shall be distributed pari
passu among the Banks, in accordance with the
aggregate outstanding principal amount of the
Obligations owing to each Bank (including its Letter
of Credit Participations, Tender Guaranty
Participations and any Reimbursement Obligations
owing to it) divided by the aggregate outstanding
principal amount of all Obligations (including any
Obligations not then due and payable).
(b)Following the occurrence and during the
continuance of any Event of Default, each Bank agrees
that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against any
Borrower (pursuant to Section 14 or otherwise),
including a secured claim under Section 506 of the
Bankruptcy Code or other security or interest arising
from or in lieu of, such secured claim, received by
such Bank under any applicable bankruptcy, insolvency
or other similar law or otherwise, obtain payment
(voluntary or involuntary) in respect of the Notes,
Loans and other Obligations held by it as a result of
which the unpaid principal portion of the Notes and
the Obligations held by it shall be proportionately
less than the unpaid principal portion of the Notes
and Obligations held by any other Bank, it shall be
deemed to have simultaneously purchased from such
other Bank a participation in the Notes and
Obligations held by such other Bank, so that the
aggregate unpaid principal amount of the Notes,
Obligations and participations in Notes and
Obligations held by each Bank shall be in the same
proportion to the aggregate unpaid principal amount
of the Notes and Obligations then outstanding as the
principal amount of the Notes and other Obligations
held by it prior to such exercise of banker's lien,
setoff or counterclaim was to the principal amount of
all Notes and other Obligations outstanding prior to
such exercise of banker's lien, setoff or
counterclaim; provided, however, that if any such
purchase or purchases or adjustments shall be made
pursuant to this Section 28 and the payment giving
rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the
purchase price or prices or adjustments restored
without interest.
(c) Following the occurrence and during the
continuance of any Event of Default, each Bank agrees
that it shall be deemed to have, automatically upon
the occurrence of such Event of Default, purchased
from each other Bank a participation in the risk
associated with the Notes and Obligations held by
such other Bank, so that the aggregate principal
amount of the Notes and Obligations held by each Bank
shall be equivalent to such Bank's Overall Percentage
as at the date of such Event of Default. Upon demand
by the Agent, made at the request of the Majority
Banks, each Bank that has purchased such
participation shall pay the amount of such
participation to one or more Bank(s) whose
outstanding Loans, Tender Guaranty Participations,
and Letter of Credit Participations exceed their
respective Overall Percentages as at such date.
(d) Each Borrower expressly consents to the
foregoing arrangements and agrees that any Person
holding such a participation in the Notes and the
Obligations deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys
owing by such Borrower to such Person as fully as if
such Person had made a Loan directly to such Borrower
in the amount of such participation.
Section 29. TRANSITIONAL ARRANGEMENTS. On the
Closing Date the Existing Credit Agreement shall be
amended and restated as set forth in this Agreement and
the rights and obligations of the parties evidenced by
Existing Credit Agreement shall be evidenced by this
Agreement and the other Loan Documents, the Loans as
defined in Existing Credit Agreement shall be converted to
US Revolver Loans hereunder and the Letters of Credit as
defined in the Existing Credit Agreement shall be
converted to Letters of Credit hereunder, without
constituting a novation or discharge thereof. All
interest, fees and expenses, if any, owing or accrued
under or in respect of the Existing Credit Agreement
through the Closing Date shall be calculated as of the
Closing Date (pro-rated in the case of any fractional
periods), and shall be paid on the Closing Date.
Section
30. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
Section 30.1Sharing of Information with Section 20
Subsidiary. The Parent and the Borrowers acknowledge that
from time to time financial advisory, investment banking
and other services may be offered or provided to the
Parent and/or the Borrowers or one or more of the Parent's
other Subsidiaries, in connection with this Agreement or
otherwise, by a Section 20 Subsidiary. Each of the Parent
and the Borrowers, for itself and each of the Parent's
other Subsidiaries, hereby authorizes (a) such Section 20
Subsidiary to share with the Agent and each Bank any
information delivered to such Section 20 Subsidiary by the
Parent or the Borrowers or any of the Parent's other
Subsidiaries, and (b) the Agent and each Bank to share
with such Section 20 Subsidiary any information delivered
to the Agent or such Bank by the Parent or the Borrowers
or any of the Parent's other Subsidiaries pursuant to this
Agreement, or in connection with the decision of such Bank
to enter into this Agreement; it being understood, in each
case, that any such Section 20 Subsidiary receiving such
information shall be bound by the confidentiality
provisions of this Agreement. Such authorization shall
survive the payment and satisfaction in full of all of
Obligations.
Section 30.2Confidentiality. Each of the Banks
and the Agent agrees, on behalf of itself and each of its
affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep
confidential, in accordance with their customary
procedures for handling confidential information of the
same nature and in accordance with safe and sound banking
practices, any non-public information supplied to it by
the Parent, the Borrowers or any of the Parent's other
Subsidiaries pursuant to this Agreement that is identified
by such Person as being confidential at the time the same
is delivered to the Banks or the Agent, provided that
nothing herein shall limit the disclosure of any such
information (a) after such information shall have become
public other than through a violation of this Section 30,
(b) to the extent required by statute, rule, regulation or
judicial process, (c) to counsel for any of the Banks or
the Agent, (d) to bank examiners or any other regulatory
authority having jurisdiction over any Bank or the Agent,
or to auditors or accountants, (e) to the Agent, any Bank
or any Section 20 Subsidiary, (f) in connection with any
litigation to which any one or more of the Banks, the
Agent or any Section 20 Subsidiary is a party, or in
connection with the enforcement of rights or remedies
hereunder or under any other Loan Document, (g) to a
Subsidiary or affiliate of such Bank as provided in
Section 30.1 or (h) to any assignee or participant (or
prospective assignee or participant) so long as such
assignee or participant agrees to be bound by the
provisions of Section 19.6 and this Section 30.2.
Section 30.3Prior Notification. Unless
specifically prohibited by applicable law or court order,
each of the Banks and the Agent shall, prior to disclosure
thereof, notify the Parent and the Borrowers of any
request for disclosure of any such non-public information
by any governmental agency or representative thereof
(other than any such request in connection with an
examination of the financial condition of such Bank by
such governmental agency) or pursuant to legal process.
Section 30.4Other. In no event shall any Bank or
the Agent be obligated or required to return any materials
furnished to it or any Section 20 Subsidiary by the
Parent, the Borrower or any of the Parent's other
Subsidiaries. The obligations of each Bank under this
Section 30 shall be binding upon any assignee of, or
purchaser of any participation in, any interest in any of
the Loans or Reimbursement Obligations from any Bank.
IN WITNESS WHEREOF, the undersigned have duly
executed this Agreement as a sealed instrument as of the
date first set forth above.
TRICO MARINE OPERATORS, INC.
By: /s/ Victor M. Perez
Name: Victor M. Perez
Title: Vice President, Chief Financial
Officer and Secretary
TRICO MARINE ASSETS, INC.
By: /s/ Victor M. Perez
Name: Victor M. Perez
Title: Vice President, Chief Financial
Officer and Secretary
TRICO MARINE SERVICES, INC.
By: /s/ Victor M. Perez
Name: Victor M. Perez
Title: Vice President, Chief Financial
Officer and Secretary
TRICO MARINE INTERNATIONAL
HOLDINGS B.V.
By: /s/ Victor M. Perez
Name: Victor M. Perez
Title: Attorney-in-fact
SAEVIK SHIPPING AS
By:____________________________________
Name:
Title:
BANKBOSTON, N.A.
individually and
as Agent
By: /s/ Daniel O'Connor
Name: Daniel O'Connor
Title: Managing Director
BANKBOSTON, N.A., acting
through its London branch
By: /s/ Daniel O'Connor
Name: Daniel O'Connor
Title: Managing Director
The Board of Directors
Saevik Supply ASA
Consent of Independent Accountants
We consent to the incorporation by reference in this report on Form 8-K of our
report dated March 6, 1997, with respect to the consolidated balance sheet of
Saevik Supply ASA and subsidiaries as of December 31, 1996 and the related
statements of earnings and cash flows for the year then ended, appearing in the
registration statement on Form S-3 as amended (SEC File No. 333-39597) of Trico
Marine Services, Inc.
We also consent to the reference to our firm under the caption "Experts".
Aalesund, Norway
December 9, 1997
KPMG as
/s/ Gerd Leira
Gerd Leira
State Authorised Public Accountant (Norway)
[Deloitte & Touche Letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this report on Form 8-K of our
report dated November 4, 1997, on our audit of the statements of assets acquired
and liabilities assumed for the fleet of vessels acquired by Saevik Supply ASA
from Viking Supply Ships AS (Viking Vessels) for the year ended December 31,
1996 and the statement of revenue less direct operating expenses for the years
ended December 31, 1996, 1995 and 1994, appearing in the registration statement
on Form S-3 as amended (SEC File No. 333-39597) of Trico Marine Services, Inc.
filed with the Securities and Exchange Commission pursuant the Securities Act
of 1933.
DELOITTE & TOUCHE
Norway, December 9, 1997
/s/ Roar Skuland
Roar Skuland
State Authorized Public Accountant Norway
