As filed with the Securities and Exchange Commission on March 18, 1998
Registration No. 333-42039
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
ON
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HVIDE MARINE INCORPORATED
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 65-0524593
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
J. Erik Hvide, Chairman, President, and Chief Executive Officer
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of communications to:
Michael Joseph, Esq.
Dyer Ellis & Joseph
600 New Hampshire Avenue, N.W.
Washington, D.C. 20037
(202) 944-3000
Approximate Date of Commencement of Proposed Sale to the Public: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box.|_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class Amount Proposed maximum Proposed maximum Amount of
of securities to be offering price per aggregate registration
to be registered registered Senior Note(1) offering price(1) fee
<S> <C> <C> <C> <C>
Senior Notes due 2008............. 300,000 $1,000 $300,000,000 $88,500
- ---------------------------------- ---------------------- --------------------- ------------------------ --------------------
Subsidiary Guarantees of the 83/8% --- --- --- (2)
Senior Notes due 2008.............
- ---------------------------------- ---------------------- --------------------- ------------------------ --------------------
Total............................. 300,000 $1,000 $300,000,000 $88,500(3)
================================== ====================== ===================== ======================== ====================
</TABLE>
(1) Pursuant to Rule 457(f) under the Securities Act of 1933, as amended, the
registration fee has been calculated based on the market value of the
securities to be canceled in the exchange.
(2) Pursuant to Rule 457(n) under the Securities Act of 1933, as amended, no
separate fee is payable for the Guarantees. (3) A registration fee of
$52,265.70 was paid on December 11, 1997 with the initial filing of the
Registration Statement on Form S-3. An additional registration fee of
$36,234.30 has been paid in connection with this filing.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
- --------------------------------------------------------------------------------
<PAGE>
HVIDE MARINE INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 59-1789754
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
HVIDE MARINE TRANSPORT, INCORPORATED
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 59-2120296
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK TRANSMARINE II, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 59-1835095
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK AMERICA PARTNERSHIP, LTD.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 59-2324484
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK CHEMICAL CARRIERS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 59-1604658
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK OCEAN SYSTEMS CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 65-0021811
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK OCEAN SYSTEMS HOLDINGS CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 65-0021810
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK OFFSHORE, LTD.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 65-0156025
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK OFFSHORE ABU DHABI, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 65-0785745
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK OFFSHORE DUBAI, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 65-0804816
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK OFFSHORE HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK OFFSHORE INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 65-0608734
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK OFFSHORE OPERATORS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 to be applied for
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK TANKERS, LTD.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 59-1444561
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK TRANSMARINE PARTNERSHIP, LTD.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 59-2580172
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SUN STATE MARINE SERVICES, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Florida 4424 65-0511419
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
TAMPA BAY TOWING, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 4424 59-2754468
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
Post Office Box 5797
Tampa, Florida 33675
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
OCEAN SPECIALTY TANKERS CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 4424 76-0270930
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2700 Post Oak Boulevard, Suite 380
Houston, Texas 77056
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
KINSMAN LINES, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 4424 34-1331777
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK ST. TAMMANY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Louisiana 4424 72-0940744
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK OFFSHORE GLOBAL HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
SEABULK ALKATAR, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK ARABIAN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK ARCTIC EXPRESS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK ARIES II, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK ARZANAH, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK BARRACUDA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK BECKY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK BETSY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK BRAVO, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK BUL HANIN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK CAPRICORN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK CARDINAL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK CAROL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK CHAMP, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK CHRISTOPHER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK CLIPPER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK COMMAND, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK CONDOR, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK CONSTRUCTOR, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK COOT I, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK COOT II, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK CORMORANT, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK CYGNET I, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK CYGNET II, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK DANAH, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK DAYNA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK DEBBIE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK DEFENDER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK DIANA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK DISCOVERY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK DUKE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK EAGLE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK EAGLE II, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK EMERALD, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK ENERGY INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK EXPLORER INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK FALCON, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK FALCON II, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK FREEDOM, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK FULMAR, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK GABRIELLE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK GANNET I, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK GANNET II, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK GAZELLE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK GIANT, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK GREBE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK HABARA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK HAMOUR, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK HARRIER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK HATTA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK HAWK, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK HERCULES, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK HERON, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK HORIZON, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK HOUBARE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK HUNTER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK IBEX, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK ISABEL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK JEBEL ALI, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK KESTREL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK KING, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK KNIGHT, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK LAKE EXPRESS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK LARA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK LARK, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK LIBERTY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK LULU, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK MAINTAINER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK MALLARD, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK MARLENE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK MARTIN I, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK MARTIN II, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK MASTER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK MERLIN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK MUBARRAK, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK NADA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK NEPTUNE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK ORYX, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK OSPREY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK PELICAN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK PENGUIN I, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK PENGUIN II, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK PENNY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK PERSISTENCE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK PETREL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK PLOVER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK POWER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK PRIDE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK PRINCE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK PRINCESS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK PUFFIN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK QUEEN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK RAVEN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK ROOSTER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK RUBY, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SALIHU, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SAPPHIRE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK SARA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SEAHORSE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SENGALI, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SERVICE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK SHARI, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SHINDAGA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SKUA I, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SNIPE, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK STAR, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SUHAIL, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SWAN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK SWIFT, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK TAURUS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK TENDER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK TERN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK TIMS I, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK TITAN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK TOOTA, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK TOUCAN, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK TRADER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK TREASURE ISLAND, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK UMM SHAIF, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK VERITAS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK VIRGO I, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
SEABULK VOYAGER, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
SEABULK ZAKUM, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Marshall Islands 4424 N/A
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(954) 523-2200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
<PAGE>
Subject to Completion Dated March 17, 1998
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
PROSPECTUS
HVIDE MARINE INCORPORATED
OFFER TO EXCHANGE ITS
83/8% SENIOR NOTES DUE 2008,
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS OUTSTANDING
83/8% SENIOR NOTES DUE 2008
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON , 1998 UNLESS EXTENDED
Hvide Marine Incorporated, a Florida corporation (the "Company" or
"Hvide"), hereby offers, upon the terms and subject to the conditions set forth
in this Prospectus and the accompanying Letter of Transmittal (the "Letter of
Transmittal") to exchange ( the "Exchange Offer") its 83/8% Senior Notes Due
2008 (the "New Notes"), which have been registered under the Securities Act of
1933, as amended (the "Securities Act"), for an equal principal amount of its
83/8% Senior Notes Due 2008 (the "Old Notes"), of which an aggregate of
$300,000,000 in principal amount is outstanding as of the date hereof. The form
and terms of the New Notes are identical in all material respects to the form
and terms of the Old Notes except that (i) the New Notes are registered under
the Securities Act, and therefore will not bear any legends restricting their
transfer and (ii) holders of the New Notes, other than certain broker-dealers,
are not entitled to the rights of holders of Transfer Restricted Securities (as
defined herein) under the Registration Rights Agreement (as defined herein). The
New Notes evidence the same indebtedness as the Old Notes and have been issued
pursuant to, and are entitled to the benefits of, the Indenture (as defined
herein) governing the Old Notes. The New Notes and the Old Notes are
collectively referred to herein as the "Notes" or the "Senior Notes." See "The
Exchange Offer" and "Description of the Notes."
(continued on next page)
SEE "RISK FACTORS" BEGINNING ON PAGE FOR A DISCUSSION OF CERTAIN
FACTORS THAT SHOULD BE CONSIDERED IN CONNECTION WITH THE
EXCHANGE OFFER AND AN INVESTMENT IN THE NEW NOTES
OFFERED HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is March , 1998.
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<PAGE>
Interest on the New Notes will accrue from February 19, 1998, the date
of issuance of the Old Notes, and will be payable semi-annually in cash in
arrears on February 15 and August 15 of each year, commencing August 15, 1998.
The Notes will mature on February 15, 2008.
On or after February 15, 2003, Hvide may redeem the Notes, in whole or
in part, at the redemption prices set forth herein, plus accrued and unpaid
interest to the date of redemption. Notwithstanding the foregoing, at any time
prior to February 15, 2001, Hvide may redeem up to 35% of the original aggregate
principal amount of the Notes with the net proceeds of one or more Public Equity
Offerings (as defined herein) at a redemption price equal to 108.375% of the
principal amount thereof, plus accrued and unpaid interest to the date of
redemption, provided that at least 65% of the original aggregate principal
amount of the Notes remains outstanding immediately after such redemption. See
"Description of the Notes--Optional Redemption." Upon a Change of Control, each
holder of Notes will have the right to require Hvide to repurchase all or a
portion of such holder's Notes at a purchase price equal to 101% of the
principal amount thereof plus accrued and unpaid interest to the date of
repurchase. See "Description of the Notes--Change of Control."
The Notes are senior unsecured obligations of Hvide and rank pari passu
in right of payment with all Indebtedness (as defined herein) and other
liabilities of Hvide that are not subordinated by their terms to other
Indebtedness of Hvide and senior in right of payment to all Indebtedness of
Hvide that by its terms is so subordinated. The Notes are effectively
subordinated to all existing and future secured Indebtedness of Hvide to the
extent of the value of the assets securing such Indebtedness and are
structurally subordinated to all existing and future Indebtedness, if any, and
other liabilities of Hvide's Subsidiaries that are not Guarantors (as defined
herein). As of September 30, 1997, on a pro forma basis, after giving effect to
the issuance of the Old Notes and the application of the proceeds therefrom and
the Recent Acquisitions (as defined herein), Hvide and its subsidiaries would
have had outstanding $195.8 million of secured Indebtedness and $343.7 million
of unsecured senior Indebtedness and other liabilities. The Indenture permits
Hvide and its subsidiaries to incur additional Indebtedness, including
additional secured Indebtedness of up to $175.0 million under the revolving
credit portion of its Credit Facility (as defined herein), subject to certain
limitations. See "Risk Factors--Holding company Structure; Effective
Subordination of the Notes" and "Description of the Notes--Certain
Covenants--Limitation on Indebtedness." The Notes are jointly and severally
guaranteed by the Company's present principal operating subsidiaries and any
future Significant Subsidiaries (as defined herein).
The Company will accept for exchange any and all Old Notes validly
tendered and not withdrawn prior to 5:00 p.m., New York City time, on , 1998,
unless extended (as so extended, the "Expiration Date"). Tenders of Old Notes
may be withdrawn at any time prior to 5:00 p.m. New York City time on the
Expiration Date. The Exchange Offer is not conditioned upon any minimum
principal amount of Old Notes being tendered for exchange; however, the Exchange
Offer is subject to certain customary conditions. Old Notes may be tendered only
in denominations of $1,000 principal amount and integral multiples thereof. See
"The Exchange Offer."
The Old Notes were sold by the Company on February 19, 1998 to
Donaldson, Lufkin & Jenrette Securities Corporation, Morgan Stanley & Co.,
Incorporated, BancBoston Securities, Inc., and Citicorp Securities, Inc.
(collectively, the "Initial Purchasers") in a private transaction not subject to
the registration requirements of the Securities Act (the "Original Offering").
The Old Notes were thereupon offered and sold by the Initial Purchasers only to
(a) persons they reasonably believed to be qualified institutional buyers
("QIBs") in reliance on Rule 144A under the Securities Act and (b) to certain
eligible
2
<PAGE>
persons in "offshore transactions" pursuant to Regulation S under the Securities
Act, each of which agreed to comply with certain transfer restrictions and other
conditions. Accordingly, the Old Notes may not be offered, resold or otherwise
transferred unless registered under the Securities Act or unless an applicable
exemption from the registration requirements of the Securities Act is available.
The New Notes have been registered under the Securities Act and are being
offered hereunder in order to satisfy the obligations of the Company under the
Registration Rights Agreement entered into with the Initial Purchasers in
connection with the offering of the Old Notes. See "The Exchange Offer" and
"Description of the Notes--Exchange Offer; Registration Rights."
Based on interpretations by the staff of the Securities and Exchange
Commission (the "Commission") set forth in no-action letters issued to unrelated
parties, the Company believes that the New Notes issued pursuant to the Exchange
Offer in exchange for Old Notes may be offered for resale, resold and otherwise
transferred by any holder thereof (other than broker-dealers, as set forth
below, and any such holder that is an "affiliate" of the Company within the
meaning of Rule 405 under the Securities Act) without compliance with the
registration and prospectus-delivery provisions of the Securities Act, provided
that (i) the New Notes are acquired in the ordinary course of such holder's
business, (ii) such holder is not engaging in and does not intend to engage in a
distribution of the New Notes, and (iii) such holder does not have an
arrangement or understanding with any person to participate in the distribution
of the New Notes. Any holder who tenders in the Exchange Offer with the
intention to participate, or for the purpose of participating, in a distribution
of the New Notes or who is an affiliate of the Company may not rely upon such
staff interpretations and, in the absence of an exemption therefrom, must comply
with the registration and prospectus-delivery requirements of the Securities Act
in connection with any secondary resale transaction. Failure to comply with any
of the foregoing conditions may result in a holder incurring liabilities under
the Securities Act for which such holder is not indemnified by the Company.
Holders of Old Notes wishing to accept the Exchange Offer must represent to the
Company in the Letter of Transmittal that all of the foregoing conditions, if
applicable, have been met. Each broker-dealer that receives New Notes for its
own account in exchange for Old Notes, if such Old Notes were acquired by the
broker-dealer as a result of its market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Notes. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of New Notes received in
exchange for Old Notes if such Old Notes were acquired by such broker-dealer as
a result of market-making activities or other trading activities. The Company
has agreed, for a period of one year after the date of this Prospectus, to make
this Prospectus available to any broker-dealer for use in connection with any
such resale.
Prior to this Exchange Offer, there has been no public market for the
Notes. If such market were to develop, the Notes could trade at prices that may
be higher or lower than their principal amount. The Old Notes are eligible for
trading in the National Association of Securities Dealer's Private Offering,
Resales and Trading through Automated Linkages ("PORTAL") Market. The Company
does not intend to apply for listing of the New Notes on any securities exchange
or stock market. Although the Initial Purchasers have advised the Company that
one or more of them may act as market makers for the New Notes, they are not
obligated so to act and they may discontinue any market-making activities at any
time without notice. Therefore, there can be no assurance as to the liquidity of
any trading market for the New Notes or that an active public market for the New
Notes will develop. See "Risk Factors--Absence of Public Market for the New
Notes."
3
<PAGE>
Neither the Company nor the Guarantors will receive any proceeds from
this Exchange Offer. The Company has agreed to pay the expenses of the Exchange
Offer. No underwriter is being used in connection with this Exchange Offer.
4
<PAGE>
No person has been authorized to give any information or to make any
representations, other than those contained in this Prospectus, in connection
with the offering made, such information or representations must not be relied
upon as having been authorized by the Company, the underwriters, or any other
person. Neither the delivery of this Prospectus nor any sale made hereunder
shall under any circumstances create any implication that there has been no
change in the affairs of the Company since the date hereof. This Prospectus does
not constitute an offer or a solicitation of an offer to buy any securities by
anyone in any jurisdiction in which such offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified to do
so or to any person to who it is unlawful to make such offer or solicitation.
TABLE OF CONTENTS
Available Information..........................................
Incorporation of Certain Documents by Reference................
Summary........................................................
Risk Factors...................................................
Use of Proceeds................................................
Capitalization.................................................
Selected Consolidated Financial Data...........................
The Exchange Offer.............................................
Description of the Notes.......................................
Plan of Distribution...........................................
Legal Matters..................................................
Experts........................................................
5
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on
Form S-4 pursuant to the Securities Act (the "Exchange Offer Registration
Statement"), with respect to the New Notes offered hereby. This Prospectus does
not contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. Statements made in this Prospectus as to the contents of any
contract, agreement, or other document are summaries of the material terms of
such contract, agreement, or document. With respect to each such contract,
agreement, or other document filed as an exhibit to the Registration Statement,
reference is made to the exhibit for a more complete description of the matter
involved. The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations thereunder, and in accordance therewith files periodic reports
and proxy and other information statements with the Commission. All reports,
proxy and information statements, and other information filed by the Company
with the Commission may be inspected at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the regional offices of the Commission located at 7 World Trade Center,
13th Floor, New York, New York 10048, and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission also maintains a Web site
(http://www.sec.gov) that contains reports, proxy and information statements
regarding registrants, such as the Company, that file electronically with the
Commission. The Company's Common Stock is traded on the Nasdaq National Market
and reports, proxy statements and other information concerning the Company can
also be inspected at the offices of the National Association of Securities
Dealers, Inc. at 1735 K Street, N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K for the year ended
December 31, 1996, (ii) Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997, and September 30, 1997, (iii) Current Report on
Form 8-K dated June 9, 1997 and the amendment thereto dated June 26, 1997, (iv)
Current Report on Form 8-K dated February 25, 1998, (v) the combined statements
of assets to be sold of Care Offshore, Inc. as of December 31, 1995 and 1996 and
as of September 30, 1997 (unaudited), and the combined statements of vessel
operations for the years ended December 31, 1995 and 1996 and for the nine
months ended September 30, 1996 and 1997 (unaudited), filed with the Commission
on December 11, 1997 as part of the Company's Registration Statement on Form
S-3, Registration No. 333-42039, and (vi) the consolidated financial statements
of Bay Transportation Corporation as of December 31, 1995 and 1996 and for the
nine months ended September 30, 1996 and 1997, filed with the Commission on
December 11, 1997 as part of the Company's Registration Statement on Form S-3,
Registration No. 333-42039, which have been filed by the Company with the
Commission pursuant to the Exchange Act, are incorporated in and made a part of
this Prospectus.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14, or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the Exchange Offer shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
6
<PAGE>
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any and all of the documents which have been or may be
incorporated by reference in this Prospectus, except that exhibits to such
documents will not be provided unless they are specifically incorporated by
reference into such documents. Requests for copies of any such document should
be directed to Investor Relations, Hvide Marine Incorporated, 2200 Eller Drive,
P.O. Box 13038, Fort Lauderdale, Florida 33316, telephone number (954) 523-2200.
7
<PAGE>
SUMMARY
The following is a summary of certain information contained elsewhere
in this Prospectus or incorporated by reference herein and does not purport to
be complete. Reference is made to, and this Summary is qualified in its entirety
by and should be read in conjunction with, the more detailed information
contained elsewhere herein or incorporated by reference herein. Unless otherwise
defined herein, capitalized terms used in this Summary have the respective
meanings ascribed to them elsewhere in this Prospectus or in the Indenture.
The Company
Hvide (pronounced "vee-dah") is one of the world's leading providers of
marine support and transportation services, serving primarily the energy and
chemical industries. The Company has been an active consolidator in each of the
markets in which it operates, increasing its vessel fleet from 23 vessels in
1993 to 267 vessels currently. As a result, the Company is the third largest
operator of offshore energy support vessels in the U.S. Gulf of Mexico, the
largest operator of such vessels in the Arabian Gulf, and a leading operator of
energy support vessels offshore West Africa and Southeast Asia. In addition, the
Company is the sole provider of commercial tug services at Port Everglades,
Tampa, and Port Canaveral, Florida, and a leading provider of such services in
Mobile, Alabama, Lake Charles, Louisiana, and Port Arthur, Texas. The Company is
also the leading transporter of specialty chemicals in the U.S. domestic trade,
with 47% of the capacity, and also transports petroleum products in the domestic
trade.
Beginning with the May 1997 acquisition of a 35-vessel fleet of
offshore energy support vessels operating in the Arabian Gulf, the Company has
recently substantially expanded its offshore energy support operations into
several international markets and increased its deepwater capability. Since the
May 1997 acquisition, the Company has completed five substantial acquisitions
(the "Recent Acquisitions") that have further expanded its offshore energy
support fleet internationally and also increased its domestic offshore and
harbor towing and petroleum product transportation operations. These have
consisted of (i) the October 1997 acquisition of 30 offshore energy support
vessels operating primarily in the Arabian Gulf for $36.0 million, (ii) the
December 1997 acquisition of 14 offshore energy support vessels operating
primarily in the Arabian Gulf for $20.5 million, (iii) the February 1998
acquisition of 37 offshore energy support vessels operating primarily offshore
West Africa and Southeast Asia for $289.7 million, (iv) the October 1997
acquisition for $57.6 million of a company operating 14 tugs that expanded the
Company's harbor towing operations to the port of Tampa, Florida, and (v) the
March 1998 acquisition for $31.4 million of two petroleum product carriers and
seven harbor tugs.
The Original Offering and Use of Proceeds
The Old Notes were sold by the Company on February 19, 1998 to the
Initial Purchasers and were thereupon offered and sold by the Initial Purchasers
only to qualified buyers pursuant to Rule 144A and Regulation S under the
Securities Act. The net proceeds from the sale of the Old Notes, after deducting
discounts and commissions and estimated offering expenses, were approximately
$291.7 million, of which $141.7 million was used to repay outstanding
indebtedness under the Company's $300.0 million term loan, $125.0 million was
used to repay outstanding indebtedness under the Company's $175.0 million
revolving line of credit, and the balance is being used for general corporate
purposes, primarily vessel acquisitions.
8
<PAGE>
The Exchange Offer
The Exchange Offer relates to the exchange of up to $300.0 million
aggregate principal amount of New Notes for up to $300.0 million aggregate
principal amount of the Old Notes. The form and terms of the New Notes are
identical in all material respects to the form and terms of the Old Notes except
that (i) the New Notes are registered under the Securities Act and therefore
will not bear any legends restricting their transfer and (ii) holders of the New
Notes, other than certain broker-dealers, will not be entitled to the rights of
holders of Transfer Restricted Securities under the Registration Rights
Agreement. The New Notes evidence the same indebtedness as the Old Notes and are
entitled to the benefits of the Indenture governing the Old Notes. See
"Description of the Notes."
The Exchange Offer..............Pursuant to the Exchange Offer, $1,000
principal amount of New Notes will be
exchanged for each $1,000 principal
amount of Old Notes that are validly
tendered and not withdrawn. As of the
date hereof, Old Notes representing
$300.0 million aggregate principal
amount are outstanding.
Resales..........................Based on interpretations by the staff of
the Commission set forth in no- action
letters issued to unrelated parties, the
Company believes that the New Notes
issued pursuant to the Exchange Offer in
exchange for Old Notes may be offered
for resale, resold and otherwise
transferred by any holder thereof (other
than broker-dealers, as set forth below,
and any such holder that is an
"affiliate" of the Company within the
meaning of Rule 405 under the Securities
Act) without compliance with the
registration and prospectus-delivery
provisions of the Securities Act,
provided that (i) the New Notes are
acquired in the ordinary course of such
holder's business, (ii) such holder is
not engaging in and does not intend to
engage in a distribution of the New
Notes, and (iii) such holder does not
have an arrangement or understanding
with any person to participate in the
distribution of the New Notes. Any
holder who tenders in the Exchange Offer
with the intention to participate, or
for the purpose of participating, in a
distribution of the New Notes or who is
an affiliate of the Company may not rely
upon such staff interpretations and, in
the absence of an exemption therefrom,
must comply with the registration and
prospectus-delivery requirements of the
Securities Act in connection with any
secondary resale transaction. Failure to
comply with any of the foregoing
conditions may result in a holder
incurring liabilities under the
Securities Act for which such holder is
not indemnified by the Company. Holders
of Old Notes wishing to accept the
Exchange Offer must represent to the
Company in the Letter of Transmittal
that all of the foregoing conditions, if
applicable, have been met. Each
broker-dealer that receives New Notes
for its own account in exchange for Old
Notes, if such Old Notes were acquired
by the broker-dealer as a result of its
market-making activities or other
trading activities, must acknowledge
that it will deliver a prospectus in
connection with any resale of such New
Notes. The Letter of Transmittal states
that by so acknowledging and by
delivering a prospectus, a broker-dealer
will not be deemed to admit that it is
an "underwriter" within the meaning of
the Securities Act. This Prospectus, as
it may be amended or supplemented from
time to time,
9
<PAGE>
may be used by a broker-dealer in
connection with resales of New Notes
received in exchange for Old Notes if such
Old Notes were acquired by such
broker-dealer as a result of market-making
activities or other trading activities. The
Company has agreed, for a period of one
year after the date of this Prospectus, to
make this Prospectus available to any
broker-dealer for use in connection with
any such resale. The Exchange Offer is not
being made to, nor will the Company accept
surrenders for exchange from, holders of
Old Notes in any jurisdiction in which this
Exchange Offer or the acceptance thereof
would not be in compliance with the
securities or blue sky laws of such
jurisdiction.
Expiration Date.................. The Exchange Offer will expire at 5:00
p.m., New York City time, on , 1998,
unless extended, in which case, the term
"Expiration Date" shall mean the latest
date and time to which the Exchange
Offer is extended. See "The Exchange
Offer--Terms of the Exchange
Offer--Expiration Date; Extension;
Amendments."
Conditions to the
Exchange Offer................ The Exchange Offer is subject to customary
conditions, certain of which may be
waived by the Company. See "The Exchange
Offer--Terms of the Exchange
Offer--Conditions to the Exchange
Offer." The Exchange Offer is not
conditioned upon any minimum principal
amount of Old Notes being tendered.
Procedures for Tendering
Old Notes..................... Each holder of Old Notes wishing to accept
the Exchange Offer must complete, sign,
and date the Letter of Transmittal, or a
facsimile thereof, in accordance with
the instructions contained herein and
therein, and mail or otherwise deliver
the Letter of Transmittal, or a
facsimile, together with the Old Notes
and any other required documentation, to
the Exchange Agent (as defined herein)
at the address set forth herein and in
the Letter of Transmittal. Persons
holding Old Notes through the Depository
Trust Company ("DTC") and wishing to
accept the Exchange Offer must do so
pursuant to DTC's ATOP (as defined
herein), by which each tendering
Participant will agree to be bound by
the Letter of Transmittal. By executing
or agreeing to be bound by the Letter of
Transmittal, each holder will represent
to the Company that, among other things,
(i) the New Notes acquired pursuant to
the Exchange Offer are being acquired in
the ordinary course of such holder's
business, (ii) such holder is not
engaging and does not intend to engage
in a distribution of such New Notes,
(iii) such holder does not have an
arrangement or understanding with any
person to participate in the
distribution of such New Notes, and (iv)
such holder is not an "affiliate," as
defined in Rule 405 under the Securities
Act, of the Company.
10
<PAGE>
Special Procedures for
Beneficial Owners................ Any beneficial owner whose Old Notes are
registered in the name of a
broker-dealer, commercial bank, trust
company, or other nominee and who wishes
to tender such Old Notes in response to
the Exchange Offer should contact such
registered holder promptly and instruct
such registered holder to tender on such
beneficial owner's behalf. If such
beneficial owner wishes to tender on its
own behalf, such owner must, prior to
completing and executing the Letter of
Transmittal and delivering its Old
Notes, either make appropriate
arrangements to register ownership of
the Old Notes in such beneficial owner's
name or obtain a properly completed bond
power from the registered holder. The
transfer of registered ownership may
take considerable time, however, and may
not be able to be completed prior to the
Expiration Date. See "The Exchange
Offer--Terms of the Exchange
Offer--Procedures for Tendering Old
Notes." Guaranteed Delivery Procedures
Holders of Old Notes who wish to tender
their Old Notes and whose Old Notes are
not immediately available, or who cannot
deliver their Old Notes, the Letter of
Transmittal or any other documents
required by the Letter of Transmittal,
to the Exchange Agent prior to the
Expiration Date, must tender their Old
Notes according to the
guaranteed-delivery procedures set forth
in "The Exchange Offer--Terms of the
Exchange Offer--Guaranteed Delivery
Procedures."
Withdrawal......................... The tender of Old Notes pursuant to the
Exchange Offer may be withdrawn at any
time prior to 5:00 p.m., New York City
time, on the Expiration Date. Any Old
Notes not accepted for exchange for any
reason will be returned without expense
to the tendering holder as promptly as
practicable after the expiration or
termination of the Exchange Offer. See
"The Exchange Offer--Terms of the
Exchange Offer--Withdrawal Rights."
Acceptance of Old Notes
and Delivery of
New Notes.................. Subject to certain conditions (as
described more fully in "The Exchange
Offer--Terms of the Exchange
Offer--Conditions to the Exchange
Offer"), the Company will accept for
exchange any and all Old Notes that are
properly tendered in response to the
Exchange Offer prior to 5:00 p.m., New
York City time, on the Expiration Date.
The New Notes issued pursuant to the
Exchange Offer will be delivered
promptly following the Expiration Date.
See "The Exchange Offer--Terms of the
Exchange Offer."
Interest on the New Notes
and the Old Notes................. Interest on each New Note will accrue from
the date of issuance of the Old Note for
which the New Note is exchanged.
11
<PAGE>
Exchange Agent..................... The Bank of New York is serving as
Exchange Agent in connection with the
Exchange Offer. The address, telephone
number and facsimile number of the
Exchange Agent are set forth in "The
Exchange Offer--Exchange Agent."
Effect of Not Tendering............ Old Notes that are not tendered or that
are tendered but not accepted, will,
following the completion of the Exchange
Offer, continue to be subject to the
existing restrictions upon their
transfer. The Company will have no
further obligation (other than to
certain broker-dealers as described in
"Description of the Notes--Exchange
Offer; Registration Rights" with respect
to the Shelf Registration Statement (as
defined herein)) to provide for the
registration of such Old Notes under the
Securities Act.
Terms of the Notes
Securities Offered................. $300.0 million aggregate principal amount
of 83/8% Senior Notes due 2008.
Maturity.......................... February 15, 2008.
Interest Payment Dates............ Interest on the Notes is payable
semi-annually in cash in arrears on
February 15 and August 15 of each year,
commencing August 15, 1998.
Ranking........................... The Notes are senior unsecured obligations
of Hvide and rank pari passu in right of
payment with all Indebtedness and other
liabilities of Hvide that are not
subordinated by their terms to other
Indebtedness of Hvide and senior in
right of payment to all Indebtedness of
Hvide that by its terms is so
subordinated. The Notes are effectively
subordinated to all existing and future
secured Indebtedness of Hvide to the
extent of the value of the assets
securing such Indebtedness and are
structurally subordinated to all
existing and future Indebtedness, if
any, and other liabilities of its
Subsidiaries that are not Guarantors. As
of September 30, 1997, on a pro forma
basis, after giving effect to the
Original Offering and the application of
the proceeds therefrom and the Recent
Acquisitions, Hvide and its subsidiaries
would have had outstanding $195.8
million of secured Indebtedness and
$343.7 million of unsecured senior
Indebtedness and other liabilities. The
Indenture permits Hvide and its
subsidiaries to incur additional
Indebtedness, including additional
secured Indebtedness under the $175.0
million revolving credit facility
portion of its $325.0 million Credit
Facility, subject to certain
limitations.
Guarantees.......................... The Notes are unconditionally guaranteed,
on a joint and several basis, subsidiary
that guarantees any Indebtedness of
Hvide or the other guarantors of the
Notes. The Guarantees may be released
under certain circumstances. The
Guarantees are senior unsecured
obligations of each respective Guarantor
and rank pari passu in right of payment
with all other
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<PAGE>
Indebtedness and liabilities of such
Guarantor that are not subordinated by
their terms to other Indebtedness of
such Guarantor. A Guarantee of a
Guarantor is effectively subordinated to
secured Indebtedness of such Guarantor.
In addition, Hvide's obligations under
the Notes are effectively subordinated
to existing and future claims of
creditors (other than Hvide and the
Guarantors) of Hvide's subsidiaries
other than the Guarantors. Claims of
creditors (other than Hvide and the
Guarantors) of such subsidiaries,
including trade creditors, tort
claimants, secured creditors, taxing
authorities, and creditors holding
guarantees, generally will have priority
as to assets of such subsidiaries over
the claims and equity interest of Hvide
and thereby, indirectly, the holders of
Indebtedness of Hvide, including the
Notes and the Guarantees. See
"Description of the Notes--Guarantees of
Notes."
Optional Redemption................ On or after February 15, 2003, Hvide may
redeem the Notes, in whole or in part,
at the redemption prices set forth
herein, plus accrued and unpaid interest
to the date of redemption.
Notwithstanding the foregoing, at any
time prior to February 15, 2001, Hvide
may redeem up to 35% of the original
aggregate principal amount of the Notes
with the net proceeds of one or more
Public Equity Offerings at a redemption
price equal to 108.375% of the principal
amount thereof, plus accrued and unpaid
interest to the date of redemption;
provided that at least 65% of the
original aggregate principal amount of
the Notes remains outstanding
immediately after such redemption. See
"Description of the Notes--Optional
Redemption."
Change of Control.................. Upon a Change of Control, each holder of
Notes will have the right to require
Hvide to repurchase all or a portion of
such holder's Notes at a purchase price
equal to 101% of the principal amount
thereof plus accrued and unpaid interest
to the date of repurchase. See
"Description of the Notes--Change of
Control."
Certain Covenants.................. The Indenture contains certain covenants
that, among other things, limit the
ability of Hvide and its Subsidiaries
to: (i) incur additional Indebtedness
and issue Preferred Stock; (ii) pay
dividends or make other Restricted
Payments, including certain Investments;
(iii) consummate certain Asset Sales;
(iv) enter into certain transactions
with Affiliates; (v) enter into Sale and
Lease-Back Transactions; (vi) incur
liens; (vii) merge or consolidate with
any other Person; (viii) sell, assign,
transfer, lease, convey, or otherwise
dispose of all or substantially all of
the assets of Hvide and its
Subsidiaries, taken as a whole; or (ix)
engage in lines of business other than
the Related Business. Under certain
circumstances, Hvide is required to make
an offer to purchase Notes at a price
equal to 100% of the principal amount
thereof, plus accrued and unpaid
interest to the date of purchase, with
the proceeds from certain Asset Sales.
In addition, the Indenture imposes
restrictions on the ability of the
Subsidiaries to issue guarantees or to
create restrictions on their ability to
make distributions on their capital
stock or make loans to Hvide and its
Subsidiaries. These covenants are
13
<PAGE>
subject to important exceptions and
qualifications. See "Description of the
Notes--Certain Covenants."
Exchange Offer;
Registration Rights................. Pursuant to the Registration Rights
Agreement among Hvide, the Guarantors,
and the Initial Purchasers, under
certain circumstances Hvide and the
Guarantors will be required to file and
use their best efforts to cause a shelf
registration statement to become and
remain effective to effect the resale of
the Notes. See "Description of the
Notes--Exchange Offer; Registration
Rights."
For further information regarding the Notes, see "Description of the Notes."
14
<PAGE>
RISK FACTORS
In addition to the other information set forth elsewhere in this
Prospectus or incorporated by reference herein, the following factors relating
to the Company and this Exchange Offer should be considered by prospective
investors when evaluating any investment in the New Notes offered hereby.
Holding Company Structure; Effective Subordination of the Notes
Hvide is a holding company that conducts substantially all of its
operations through its U.S. and foreign subsidiaries, and substantially all of
its assets consist of equity in such subsidiaries. Accordingly, the Company is
and will be dependent on its ability to obtain funds from its subsidiaries to
service its indebtedness, including the Notes.
The Company's bank credit facility (the "Credit Facility") provides for
a $175.0 million revolving line of credit and a $150.0 million term loan.
Borrowings under the Credit Facility are initially secured by a portion of the
assets of the Company, primarily vessels, having an appraised market value of
approximately $400.0 million, whereas the Notes are not secured by any assets of
the Company. See "Description of the Notes." Accordingly, claims of the lenders
under the Credit Facility, and other secured debt of the Company with respect to
the assets constituting collateral for any indebtedness thereunder and the
assets of any subsidiary guaranteeing such indebtedness, will be satisfied prior
to the unsecured claims of holders of the Notes. In the event of a default on
the Notes or a bankruptcy, liquidation, or reorganization of the Company, such
assets will be available to satisfy obligations with respect to the indebtedness
secured thereby before any payment therefrom can be made on the Notes. Thus the
Notes are effectively subordinated to claims of the lenders under the Credit
Facility to the extent of such pledged collateral. Assuming the Credit Facility
had been in place at September 30, 1997, on a pro forma basis, after giving
effect to the Original Offering and the application of the proceeds therefrom
and the Recent Acquisitions, the Company would have had $195.8 million of
secured Indebtedness at that date and $175.0 million of borrowing capacity under
the Credit Facility, all of which would be effectively senior to the Notes.
In addition, the Notes are effectively subordinated to the claims of
all creditors, including trade creditors and tort claimants, of the Company's
subsidiaries that are not Guarantors and to all secured creditors of the
Guarantors including the lenders under the Credit Facility. In the event of the
insolvency, bankruptcy, liquidation, reorganization, dissolution or winding up
of the business of a subsidiary that is not a Guarantor, creditors of such
subsidiary will generally have the right to be paid in full before any
distribution is made to the Company or the holders of the Notes.
Enforceability of Subsidiary Guarantees
Substantially all of the subsidiaries of the Company have guaranteed
the Company's obligations under the Notes. There can be no assurance that any
such Subsidiary Guarantee can be enforced easily, if at all. Certain of the
Guarantors are, or may be, incorporated in jurisdictions outside the United
States. In the event of a default under a Subsidiary Guarantee, any enforcement
action in all likelihood will have to occur in the jurisdiction where the
Subsidiary's assets are located. The limited jurisprudence and experience with
such enforcement actions in the relevant jurisdiction may significantly
complicate, delay, or limit the scope of such enforcement action. The ability of
a foreign claimant to enforce a judgment or arbitral award obtained outside
those jurisdictions may be limited. In addition, the ability to enforce
15
<PAGE>
an "upstream guarantee" (i.e., a guarantee by a subsidiary of a parent's
obligations) is subject to some uncertainty not only in the United States but
also in other applicable jurisdictions.
Unenforceability and Releases of Subsidiary Guarantees
Although holders of the Notes are direct creditors of each Guarantor by
virtue of its Guarantee, existing or future creditors of a Guarantor, a trustee
in bankruptcy or a Guarantor as a debtor-in-possession could avoid or
subordinate such Guarantee, under U.S. fraudulent conveyance laws, if
applicable, in the event that it were successful in establishing that (i) the
Guarantee was incurred with intent to hinder, delay, or defraud any present or
future creditor or (ii) the Guarantor in question did not receive fair
consideration or reasonably equivalent value for issuing its Guarantee and that
it (a) was insolvent at the time of such issuance, or (b) was rendered insolvent
by reason of such issuance, or (c) was engaged in a business or transaction for
which its assets constituted unreasonably small capital to carry on its
business, or (d) intended to incur, or believed that it would incur, debts
beyond its ability to pay such debts as they matured. Among other things, a
legal challenge of the Guarantee on U.S. fraudulent conveyance grounds may focus
on the benefits, if any, realized by the Guarantor in question as a result of
the issuance by the Company of the Notes. The measure of insolvency for these
purposes will depend upon the governing law of the relevant jurisdiction.
Generally, however, a Person will be considered insolvent for these purposes if
the sum of that Person's debts is greater than the fair value or the fair
saleable value of all of that Person's property or if the present fair saleable
value of that Person's assets is less than the amount that will be required to
pay its probable liability on its existing debts as they become absolute and
matured. Moreover, regardless of solvency, a court could void an incurrence of
indebtedness, including the Notes, if it determined that such transaction was
made with the intent to hinder, delay, or defraud creditors. In addition, a
court could subordinate indebtedness, including the Notes, to the claims of all
existing and future creditors on similar grounds. The Company believes that,
after giving effect to the Original Offering, the Company was (i) neither
insolvent nor rendered insolvent by the incurrence of indebtedness in connection
with the Original Offering, (ii) in possession of sufficient capital to run its
business effectively, and (iii) incurring debts within its ability to pay as the
same mature or become due. A Guarantee may also be avoided, declared
unenforceable, or subordinated to other obligations of the applicable Guarantor
under any applicable foreign bankruptcy, reorganization, receivership,
insolvency, liquidation, or other similar legislation or legal principles under
any other applicable foreign law. To the extent any Guarantee is avoided as a
fraudulent conveyance or held unenforceable for any other reason, the holders of
the Notes will cease to have any claim in respect of the Guarantor in question
and will be solely creditors of the Company, and may be required to return all
amounts received pursuant to such Guarantee. In such event, or in the event of
the subordination of such Guarantee, the claims of the holders of the Notes
would be subject to the prior payment of all liabilities of the Guarantor in
question. There can be no assurance that, after providing for all prior claims,
there would be sufficient assets to satisfy the claims of the holders of the
Notes relating to any avoided, unenforceable, or subordinated portion of the
Guarantees.
Any Guarantor may be released from its Guarantee at any time upon any
sale, exchange, or transfer, in compliance with the provisions of the Indenture,
by the Company of the capital stock of such Guarantor or substantially all of
the assets of such Guarantor and in certain other circumstances. See
"Description of the Notes--Guarantees of Notes."
16
<PAGE>
Other Constraints to Realizing Cash from Subsidiaries
In addition to the risks described in "--Holding Company Structure;
Effective Subordination of the Notes" and "--Unenforceability and Releases of
Subsidiary Guarantees," the ability of the Company's subsidiaries to make
payments to the Company may be constrained by (i) the level of taxation,
particularly corporate profits and withholding taxes, in the jurisdictions in
which they operate, (ii) exchange controls and repatriation restrictions in
effect in the jurisdictions in which they operate, and (iii) the ownership
interests of other investors in the Company's subsidiaries.
If the Company is not able to realize sufficient cash flow from its
subsidiaries, the Company may be required to refinance its indebtedness, raise
funds in a public or private equity or debt offering, or sell some or all of its
and its subsidiaries' assets. If the Company is required to conduct an offering
of its capital stock or to refinance either the Notes or its other indebtedness,
its ability to do so on acceptable terms, if at all, will be affected by many
factors, including economic and industry cycles. There can be no assurance that
an offering of the Company's capital stock or a refinancing of the Notes or
other indebtedness can or will be completed on satisfactory terms, or that they
would be sufficient to enable Hvide to make payments with respect to the Notes.
Risk of Inability to Repurchase the Notes Upon a Change of Control
Upon a Change of Control, the Company is required to offer to purchase
all outstanding Notes at 101% of the aggregate principal amount thereof plus
accrued and unpaid interest to the Change of Control Payment Date. The source of
funds for any such purchase would be the Company's available cash or cash
generated from other sources, including borrowings, sales of assets, sales of
equity or funds provided by new controlling persons. A Change of Control would
give lenders under the Credit Facility the right to require the Company to repay
all indebtedness then outstanding thereunder. There can be no assurance that
sufficient funds will be available at the time of any Change of Control to make
any required purchases of validly tendered Notes and to repay any other
indebtedness then in default. See "Description of the Notes--Change of Control."
Absence of Public Market for the New Notes
The New Notes constitute a new issue of securities with no existing
trading market, and there can be no assurance as to the liquidity of any markets
that may develop for the New Notes, the ability of the holders of New Notes to
sell their New Notes, or the prices at which such holders will be able to sell
their New Notes. Future trading prices of the New Notes will depend on many
factors, including, among others, prevailing interest rates, the Company's
operating results, and the market for similar securities. The Company does not
intend to apply for listing of the New Notes on any securities exchange or to
seek the approval for quotation through an automated quotation system. Although
the Initial Purchasers have advised the Company that they currently intend to
make a market in the New Notes, they are not obligated to do so and may
discontinue such market-making activity at any time without notice. In addition,
such market-making activity will be subject to the limits imposed by the
Securities Act and the Exchange Act and may be limited during the Exchange
Offer. See "Plan of Distribution." Accordingly, no assurance can be given that
an active market will develop for the New Notes or as to the liquidity of, or
the trading market for, the New Notes.
17
<PAGE>
Leverage and Debt Service
As of September 30, 1997, on a pro forma basis, after giving effect to
the Recent Acquisitions and the Original Offering and the application of the
estimated net proceeds therefrom, the Company would have had outstanding
indebtedness and other liabilities of approximately $539.5 million and
significant debt service obligations, plus additional payments of interest on
$115.0 million of debentures relating to the issuance in July 1997 of Trust
Preferred Securities (the "Trust Preferred Securities") that are not classified
as indebtedness in the Company's financial statements. In addition, the Company
may incur additional indebtedness in the future.
The Company's high level of indebtedness will have several important
effects on its future operations, including the following: (i) the Company will
have significant cash requirements to service debt, thereby reducing funds
available for operations and future business opportunities and increasing the
Company's vulnerability to adverse general economic and industry conditions;
(ii) the Company may be restricted in the future from obtaining additional
financing, whether for acquisitions, working capital, or other purposes; (iii)
the Company will be required to comply with certain financial covenants and
other restrictions contained in the debt instruments; and (iv) the Company's
high level of indebtedness could make it more vulnerable to economic downturns
in the future.
The Company's ability to meet its debt service obligations will depend
on its future operating performance and financial results, which are subject to
economic, financial, competitive, and other factors beyond its control,
including fluctuations in charter rates and vessel values, government and
industry regulation, and levels of activity in offshore oil and gas exploration.
See "--Dependence on Oil and Gas Industry; Cyclical Industry Conditions." There
can be no assurance that the Company's business will generate sufficient cash
flow from operations in the future to service its debt and make necessary
capital expenditures. If the Company is unable to generate sufficient cash flow
in the future, it may be required to refinance all or a portion of its existing
debt, to sell assets, or to obtain additional financing. There can be no
assurance that any such refinancing would be possible or that any such sales of
assets or additional financing could be achieved.
Restrictive Covenants Under Debt Instruments
The terms of the Credit Facility (i) require the Company to meet
certain financial tests, including the maintenance of minimum leverage ratios,
debt service coverage ratios, and indebtedness to net worth ratios, (ii) limit
the creation or incurrence of certain liens, (iii) limit the incurrence of
additional indebtedness, (iv) restrict the Company from making certain
investments, (v) restrict certain payments, including dividends, with respect to
shares of any class of capital stock, (vi) restrict modification of the terms of
the Trust Preferred Securities, and in certain circumstances the repayment,
redemption, or repurchase of the Trust Preferred Securities, and (vii) limit
certain corporate acts of the Company, such as making certain dispositions of
assets, and entering into certain types of business transactions, including
certain mergers and acquisitions. Such provisions could adversely affect the
Company's ability to continue to pursue its strategy of growth through
acquisitions.
Dependence on Oil and Gas Industry; Cyclical Industry Conditions
The Company's current business and operations are substantially
dependent upon conditions in the oil and gas industry, particularly the
expenditures by oil and gas companies for offshore exploration and production
activities. The demand for offshore energy support and transportation services
is directly
18
<PAGE>
influenced by oil and gas prices, expectations concerning future prices, the
cost of producing and delivering oil and gas, government regulation, local and
international political and economic conditions, including the ability of the
Organization of Petroleum Exporting Countries ("OPEC") to set and maintain
production levels and prices, the level of production by non-OPEC countries, and
the policies of various governments regarding exploration and development of
their oil and gas reserves. There can be no assurance that current levels of
expenditures for offshore exploration and production will be maintained or that
demand for the Company's services will reflect the level of such expenditures.
To the extent that oil and natural gas prices continue their recent decline or
remain at present levels for an extended period of time, the Company's business
could be adversely affected due to a reduction in expenditures for offshore
exploration and production.
Historically, the marine support and transportation services industry
has been cyclical, with corresponding volatility in profitability and vessel
values. This industry cyclicality has been due to changes in the level of
general economic growth as well as changes in the supply of and demand for
vessel capacity, which impact charter rates and vessel values. The supply of
vessels is influenced by the number of vessels constructed and retired and by
government and industry regulation of maritime transportation practices. The
Company's offshore energy support services are dependent upon the levels of
activity in offshore oil and natural gas exploration, development, and
production, which are affected by oil and natural gas prices. Utilization of the
Company's towboat and fuel barge fleet is also partly dependent on such prices
as well as energy utilization, which is partly a function of the weather.
Risks of Acquisition Strategy; Management of Growth
A key component of the Company's business strategy is to pursue
selected acquisitions of complementary assets and businesses. The Company has
completed a number of substantial acquisitions since 1994 and has rapidly
expanded its international operations since May 1997. No assurance can be given
that the Company will be able to continue to identify additional suitable
acquisition opportunities, negotiate acceptable terms, obtain financing for
acquisitions on satisfactory terms, or successfully acquire identified targets.
Possible future acquisitions may be for purchase prices significantly higher
than those paid for recent acquisitions. Certain risks are inherent in an
acquisition strategy, such as increasing leverage and debt service requirements,
which could adversely affect the Company's operating results.
The success of any completed acquisition will depend in part on the
Company's ability to integrate effectively the acquired business into the
Company. The Company's recent rapid growth and the process of integrating the
acquired operations has placed, and is expected to continue to place,
substantial demands on the Company's management and operational resources. The
Company's failure to achieve consolidation savings, to incorporate the acquired
businesses and assets into its existing operations successfully, or to minimize
any unforeseen operational difficulties could have a material adverse effect on
the Company. In addition, the assumption of liabilities, whether disclosed or
undisclosed, associated with acquired businesses could have a material adverse
effect on the Company.
Risks of International Operations
The Company derives substantial revenue from international operations
primarily under dollar denominated contracts with major international oil
companies. The Company currently operates 124 vessels in international waters,
primarily the Arabian Gulf and to a lesser extent the waters offshore West
Africa and Southeast Asia, and other international locations. Risks associated
with operating in international markets include vessel seizure, foreign exchange
restrictions and currency fluctuations,
19
<PAGE>
foreign taxation, political instability, foreign and domestic monetary and tax
policies, expropriation, nationalization, nullification, modification or
renegotiation of contracts, war and civil disturbances or other risks that may
limit or disrupt markets. Additionally, the ability of the Company to compete in
the international offshore energy support market may be adversely affected by
foreign government regulations that favor or require the awarding of contracts
to local persons, or by regulations requiring foreign persons to employ citizens
of, or purchase supplies from, a particular jurisdiction. Further, the Company's
foreign subsidiaries may face governmentally imposed restrictions from time to
time on their ability to transfer funds to the Company. No predictions can be
made as to what foreign governmental regulations may be applicable to the
Company's operations in the future.
Age of Offshore Energy Support Fleet
Because of overcapacity within the marine support services industry on
a worldwide basis, there has been no significant construction of offshore energy
support vessels since 1983. As of September 30, 1997, the average age of the
Company's offshore energy support vessels (based on the date of construction)
was approximately 17 years. Management believes that after a vessel has been in
service for approximately 30 years, repair, vessel certification, and
maintenance costs may become no longer economically justifiable. There can be no
assurance that the Company will be able to maintain its fleet by extending the
economic life of existing vessels through major refurbishment or by acquiring
new or used vessels.
Hazardous Activities
The operation of ocean-going vessels carries an inherent risk of
catastrophic marine disasters and property losses caused by adverse weather
conditions, mechanical failures, human error, and other circumstances or events.
In addition, the transportation of petroleum and toxic chemicals is subject to
the risk of spills and environmental damage. Any such event could have a
material adverse effect on the Company. While the Company carries insurance to
protect against most of the accident-related risks involved in the conduct of
its business, including environmental damage and pollution insurance coverage,
there can be no assurance that all risks are adequately insured against, that
any particular claim will be paid, or that the Company will be able to procure
adequate insurance coverage at commercially reasonable rates in the future. In
particular, more stringent environmental regulations may result in increased
costs for, or the lack of availability of, insurance against the risks of
environmental damage or pollution.
Environmental Risk and Regulations
Current laws and regulations could impose substantial liability on the
Company for damages, remediation costs, and penalties associated with oil or
hazardous-substance spills or other discharge into the environment involving the
Company's vessel operations. Shoreside industrial operations, including two
marine maintenance facilities owned and operated by the Company, are also
subject to federal, state, and local environmental laws and regulations.
Amendment of these laws and regulations to impose more stringent requirements
would likely result in increased maintenance and operating expenses. In
addition, OPA 90 requires tanker owners and operators to establish and maintain
with the U.S. Coast Guard evidence of financial responsibility, as demonstrated
by a certificate of financial responsibility ("COFR"), with respect to potential
oil spill liability, which the Company and most of its competitors currently
satisfy by virtue of self- insurance or third-party insurance. Additional laws
and regulations may be
20
<PAGE>
adopted that could limit the ability of the Company to do business or increase
the cost of its doing business and could have a material adverse effect on its
operations.
Competition
The Company operates in a highly competitive industry. In addition to
price, service, and reputation, which affect all of the Company's operations,
the principal competitive factors with respect to its offshore energy support
vessels include operating conditions and intended use (both of which determine
the suitability of vessel types), complexity of maintaining logistical support,
and the cost of transferring equipment from one market to another. Some of the
Company's competitors have significantly greater financial resources than the
Company.
Potential Loss of Jones Act Protection
A substantial portion of the Company's operations is conducted in the
U.S. domestic trade, which, by virtue of the U.S. coastwise laws (often referred
to collectively as the "Jones Act"), is restricted to vessels built in the
United States, owned and crewed by U.S. citizens, and registered under U.S. law.
There have been repeated attempts to repeal the coastwise laws, and efforts to
effect such repeal are expected to continue in the future. The Company is
already subject to vigorous competition and potential additional competition in
all aspects of its operations, including competition by companies with financial
resources greater than those of the Company which could be committed to the
construction of new vessels in excess of market requirements. Repeal of the
coastwise laws would result in additional competition from vessels built in
lower-cost foreign shipyards and manned by foreign nationals accepting lower
wages than U.S. citizens and could have a material adverse effect on the
Company.
Mandated Removal of Vessels from Jones Act Trade
OPA 90 establishes a phase-out schedule, depending upon vessel size and
age, for single-hull vessels carrying crude oil and petroleum products which, in
the case of the Company's three petroleum products carriers (Seabulk Challenger,
Willamette, and Concho) and five chemical carriers (HMI Astrachem, Seabulk
Magnachem, HMI Dynachem, HMI Petrochem and Seabulk America), is 2003, 2008,
2000, 2000, 2007, 2011, 2011, and 2015, respectively; and in the case of some of
its fuel barges is 2015. As a result of this requirement, these vessels will be
prohibited from transporting petroleum products in U.S. waters after their
respective phase-out dates. There can be no assurance that future tanker market
rates will be sufficient to support construction of replacement vessels.
Although the Company's remaining vessels are not subject to mandatory
retirement, and the Company employs what it believes to be a rigorous
maintenance program for all its vessels, there can be no assurance that the
Company will be able to maintain its fleet by extending the economic lives of
existing vessels or acquiring new or used vessels.
Risk of Loss and Insurance
The business of the Company is affected by a number of risks, including
the mechanical failure of its vessels, collisions, vessel loss or damage, cargo
loss or damage, hostilities, and labor strikes. In addition, the operation of
any vessel is subject to the inherent possibility of a catastrophic marine
disaster, including oil, fuel, or chemical spills and other environmental
mishaps, as well as other liabilities arising from owning and operating vessels.
Any such event may result in loss of revenues and increased costs
21
<PAGE>
and other liabilities. Although the Company's losses from such hazards have not
historically exceeded its insurance coverage, there can be no assurance that
this will continue to be the case.
OPA 90, by imposing virtually unlimited liability upon vessel owners,
operators, and certain charterers for certain oil pollution accidents in the
United States, has made liability insurance more expensive and has also prompted
insurers to consider reducing available liability coverage. See
"Business--Environmental and Other Regulation." While the Company maintains
insurance, there can be no assurance that all risks are adequately insured
against particularly in light of the virtually unlimited liability imposed by
OPA 90, that any particular claim will be paid, or that the Company will be able
to procure adequate insurance coverage at commercially reasonable rates in the
future. Because it maintains mutual insurance, the Company is subject to funding
requirements and coverage shortfalls in the event claims exceed available funds
and reinsurance and to premium increases based on prior loss experience. Any
such shortfalls could have a material adverse impact on the Company.
Consequences of Failure to Exchange and Restrictions on Transfer
Holders of Old Notes who do not exchange their Old Notes for New Notes
pursuant to the Exchange Offer will continue to be subject to the restrictions
on transfer of Old Notes set forth in the legend thereon. In general, the Old
Notes may not be offered or sold, unless registered under the Securities Act,
except pursuant to an exemption from, or in a transaction not subject to, the
Securities Act and applicable state securities laws. Except as described herein
in the second paragraph under "The Exchange Offer--Purpose and Effect," the
Company does not anticipate registering the Old Notes under the Securities Act.
Forward-Looking Statements
This Prospectus and the information incorporated herein by reference
includes certain statements that may be deemed to be "forward-looking
statements" within the meaning of Section 27A of the Securities Act. All
statements, other than statements of historical fact, included in this
Prospectus and the information incorporated herein by reference that addresses
activities, events, or developments that the Company expects, projects,
believes, or anticipates will or may occur in the future, including such matters
as future levels of day rates for offshore energy support vessels, future
capital expenditures and investments in the acquisition and refurbishment of
vessels, repayment of debt, business strategies, future acquisitions, expansion
and growth of operations and other such matters, are forward-looking statements.
These statements are based on certain assumptions and analyses made by
management of the Company in light of its experience and its perception of
historical trends, current conditions, expected future developments, and other
factors it believes are appropriate in the circumstances. Such statements are
subject to a number of assumptions, risks and uncertainties, including the risk
factors discussed herein, general economic and business conditions, oil and gas
prices, foreign exchange and currency fluctuations, the business opportunities
(or lack thereof) that may be presented to and pursued by the Company, changes
in laws or regulations and other factors, many of which are beyond the control
of the Company. Prospective investors are cautioned that such forward-looking
statements are not guarantees of future performance and that actual results or
developments may differ materially from those projected in such statements.
22
<PAGE>
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
New Notes offered hereby. In consideration for issuing the New Notes as
contemplated in this Prospectus, the Company will receive in exchange a like
principal amount of Old Notes, the terms of which are identical in all material
respects to the New Notes. The Old Notes surrendered in exchange for the New
Notes will be retired and canceled and cannot be reissued. Accordingly, issuance
of the New Notes will not result in any change in capitalization of the Company.
See "Summary--The Original Offering and Use of Proceeds."
The Old Notes were sold by the Company on February 19, 1997 to the
Initial Purchasers and were thereupon offered and sold by the Initial Purchasers
only to qualified buyers pursuant to Rule 144A and Regulation S under the
Securities Act. The net proceeds to the Company from the sale of the Old Notes,
after deducting discounts and commissions and estimated offering expenses, were
approximately $291.7 million of which $141.7 million was used to repay
outstanding indebtedness under the Company's $300.0 million term loan, $125.0
million was used to repay outstanding indebtedness under the Company's $175.0
million revolving line of credit, and the balance is being used for general
corporate purposes, primarily vessel acquisitions.
23
<PAGE>
CAPITALIZATION
The following table sets forth the actual consolidated capitalization
of the Company as of September 30, 1997, and such capitalization as adjusted to
give effect to the February 1998 acquisition of 37 offshore energy support
vessels and the October 1997 acquisition of the company operating 14 tugs and as
further adjusted to give effect to the Original Offering and the application of
the estimated net proceeds therefrom. The information presented below should be
read in conjunction with the Company's consolidated financial statements and the
notes thereto incorporated by reference herein.
<TABLE>
<CAPTION>
September 30, 1997
As Further
Adjusted for
As Adjusted the Original
Actual for Acquisitions Offering
(In thousands)
<S> <C> <C> <C>
Current portion of long-term debt.................................... $ 8,381 $ 40,029 $ 40,029
Long-term debt (excluding current portion)(1)
Credit Facility................................................... $ 17,000 $ 53,500 $ --
Term Loan......................................................... -- 258,646 108,646
Title XI debt..................................................... 23,756 38,163 38,163
Senior Notes...................................................... -- -- 300,000
Other notes payable............................................... 6,408 6,408 6,408
Obligations under capital leases.................................. 6,312 6,312 6,312
Total long-term debt............................................ 53,476 363,029 459,529
Company-obligated mandatorily redeemable
preferred securities issued by a consolidated subsidiary(2) 115,000 115,000 115,000
Minority partners' equity in subsidiaries............................ 818 818 818
Stockholders' equity:
Class A Common Stock, par value $0.001; 100,000,000 shares
authorized; 12,095,568 shares issued and outstanding 12 12 12
Class B Common Stock, par value $0.001; 5,000,000 shares
authorized; 3,181,936 shares issued and outstanding 3 3 3
Additional paid-in capital........................................ 195,398 195,398 195,398
Retained earnings................................................. 19,641 19,641 19,095
Total stockholders' equity........................................... 215,054 215,054 214,508
Total minority partners' equity in subsidiaries and stockholders'
equity............................................................ 215,872 215,872 215,326
Total capitalization................................................. $ 384,348 $ 693,901 $ 789,855
</TABLE>
(1) Does not include an aggregate of $56.5 million of indebtedness incurred
after September 30, 1997 under the Credit Facility and the Term Loan
related to the October and December 1997 acquisitions of 30 and 14
offshore energy support vessels.
(2) The sole assets of the subsidiary, Hvide Capital Trust, are debentures
having an aggregate principal amount of $115.0 million. Upon redemption
or maturity of the debentures, the Trust Preferred Securities will be
mandatorily redeemable.
24
<PAGE>
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
The following table sets forth selected consolidated financial and
operating data for the dates and periods indicated. The financial information
for each of the years ended December 31, 1992 through 1996 is derived from the
Company's audited consolidated financial statements and notes thereto. The
selected consolidated financial data for the nine month periods ended September
30, 1996 and 1997 is derived from the unaudited consolidated statements of the
Company for such periods. In the opinion of management, the unaudited financial
statements of the Company reflect all adjustments (consisting of only normal
recurring adjustments) necessary for fair presentation of the financial
condition and results of operations for these periods. This information should
be read in conjunction with the consolidated financial statements and notes
thereto and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" set forth in the Company's Annual Report on Form 10-K for
the year ended December 31, 1996 and Quarterly Report on Form 10-Q for the
quarter ended September 30, 1997 incorporated by reference into this Prospectus.
<TABLE>
<CAPTION>
Nine Months
Ended
Year Ended December 31, September 30,
1992 1993 1994 1995 1996 1996 1997
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Statement of Operations Data:
Revenue........................................ $39,639 $41,527 $49,792 $ 70,562 $109,356 $72,130 $142,853
Operating expenses............................. 24,602 24,032 29,873 40,664 63,777 42,089 77,134
Overhead expenses.............................. 6,778 6,176 9,581 12,518 14,979 11,049 17,568
Depreciation and amortization.................. 4,106 4,735 4,500 6,308 9,830 6,115 13,021
Income from operations......................... 4,153 6,584 5,838 11,072 20,770 12,877 35,130
Interest expense, net.......................... 3,993 3,412 5,302 11,460 11,631 8,751 4,529
Other income (expense)......................... 8 519 11 26 437 199 (2,093)
Income (loss) before provision
for (benefit from) income taxes,
extraordinary item and cumulative effect
of a change in accounting principle......... 168 3,691 547 (362) 9,576 4,325 28,508
Provision for (benefit from) income taxes...... 158 1,873 189 (2) 3,543 1,616 10,662
Income (loss) before extraordinary item and
cumulative effect of a change in accounting
principle................................... 10 1,818 358 (360) 6,033 2,709 17,846
Loss on extinguishment of debt, net(1)......... -- -- -- -- (8,108) (8,016) (2,132)
Cumulative effect of a change in accounting
principle................................... -- 1,491 -- -- -- -- --
Net income (loss).............................. $ 10 $3,309 $ 358 $ (360) $ (2,075) $(5,30) $15,714
Basic Earnings (loss) per common share(2):
Income (loss) before extraordinary item and
cumulative effect of a change in accounting
principle................................... $(0.01) $ 0.26 $ 0.03 $ (0.14) $ 1.05 $ 0.68 $ 1.22
Net income (loss).............................. (0.01) 0.50 0.03 (0.14) (0.36) (1.32) 1.07
Weighted average number of common shares
outstanding................................. 6,268 6,268 5,302 2,535 5,763 4,012 14,620
Diluted earnings (loss) per common share(2):
Income (loss) before extraordinary item and
cumulative effect of a change in accounting
principle................................... $(0.01) $ 0.26 $ 0.03 $ (0.14) $ 0.99 $ 0.64 $ 1.17
Net income (loss).............................. (0.01) 0.50 0.03 (0.14) (0.24) (0.95) 1.04
Weighted average number of common shares and
common share equivalents outstanding........ 6,268 6,268 5,302 2,535 6,590 5,042 16,280
</TABLE>
25
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C> <C>
Other Financial Data:
EBITDA(3)...................................... $8,259 $11,319 $10,338 $ 17,380 $ 30,600 $18,992 $48,151
Ratio of earnings to fixed charges(4).......... 1.05 1.66 1.09 -- 1.58 1.33 3.81
Ratio of EBITDA to interest expense, net(3).... 2.07 3.32 1.95 1.52 2.63 2.17 10.63
Net Cash Provided by (Used in):
Operating activities........................... $ (930) $6,956 $ 2,858 $ 3,948 $ 22,584 $11,038 $18,137
Investing activities........................... (1,592) (2,247) (39,815) (8,066) (84,354) (62,45) (137,75)
Financing activities........................... (2,473) (6,158) 41,249 805 68,337 53,962 117,793
</TABLE>
<TABLE>
<CAPTION>
December 31, September 30,
1992 1993 1994 1995 1996 1997
(In thousands)
<S> <C> <C> <C> <C> <C> <C>
Balance Sheet Data:
Working capital.................................. $ 847 $2,640 $ 7,793 $4,315 $(8,704) $ 24,362
Total assets..................................... 83,718 82,373 135,471 143,683 273,473 433,267
Long-term obligations............................ 50,861 47,485 98,981 100,766 115,824 53,476
Total debt....................................... 57,011 51,273 104,281 109,051 141,642 61,857
Convertible preferred securities
of subsidiary trust........................... -- -- -- -- -- 115,000
Stockholders' and minority partners' equity ..... 15,858 19,926 14,903 13,999 101,989 215,872
</TABLE>
(1) Reflects the loss on the extinguishment of debt from a portion of the
proceeds of the Company's two public offerings of common stock, net of
applicable income taxes of $1,474,000 for the year ended December 31,
1996 and nine months ended September 30, 1996 and $1,252,000 for the nine
months ended September 30, 1997.
(2) Statement of Financial Accounting Standards No. 128, adopted by the
Company, requires the presentation of basic and diluted earnings per
share and replaces the prior presentation of primary and fully diluted
earnings per share. Basic earnings per share is calculated on the basis
of weighted average outstanding common shares, after giving effect to
preferred stock dividends. Diluted earnings per share is computed on the
basis of weighted average outstanding common shares, outstanding options
that are dilutive, and equivalent shares assuming conversion of
outstanding convertible securities, where dilutive.
The following table sets forth the computation of basic and diluted
earnings per share.
<TABLE>
<CAPTION>
Year Ended December 31,
1994 1995 1996
<S> <C> <C> <C>
Income (loss) before extraordinary item............................. $ 358 $ (360) $ 6,033
Less: Class A Preferred Stock Cash Dividends........................ 222 -- --
Income available to common shareholders
for basic earnings per share................................... 136 (360) 6,033
Effect of dilutive securities:
Convertible preferred securities.................................. -- -- --
Convertible Junior Notes(a)....................................... -- -- 515
Income (loss) available to common shareholders before extraordinary
item for diluted earnings per share............................... $ 136 $ (360) $ 6,548
Weighted average shares outstanding
for basic earnings per share..................................... 5,302 2,535 5,763
Effect of dilutive securities:
Convertible preferred stock....................................... -- -- --
Convertible Junior Notes(a)....................................... -- -- 772
Stock options..................................................... -- -- 55
Dilutive potential common shares.................................... -- -- 828
Adjusted weighted average shares for
diluted earnings per share....................................... 5,302 2,535 6,590
Basic earnings per share............................................ $ 0.03 $ (0.14) $ 1.05
Dilutive earnings per share......................................... $ 0.03 $ (0.14) $ 0.99
</TABLE>
(a) Diluted earnings per share for the years ended December 31, 1994
and 1995 does not reflect any potential shares relating to the
conversion of the Junior Note due to the loss for that year. The
assumed issuance of any additional shares would be antidilutive.
26
<PAGE>
(3) EBITDA (net income from continuing operations before interest expense,
income tax expense, depreciation expense, amortization expense, minority
interests, and other non-operating income) is frequently used by securities
analysts and is presented here to provide additional information about the
Company's operations. EBITDA is not required by generally accepted
accounting principles, should not be considered as an alternative to net
income as an indicator of the Company's operating performance or as an
alternative to cash flows from operations as a measure of liquidity, and
does not represent funds available for management's use. The Company's
EBITDA may not be comparable to similarly titled measures reported by other
companies.
(4) The ratio of earnings to fixed charges is computed by dividing the
Company's pre-tax income from continuing operations adjusted for fixed
charges less minority interest in the income or loss of majority-owned
subsidiaries divided by fixed charges. Fixed charges include interest and
amortization of debt expense and discount. Earnings for the year ended
December 31, 1995 were not able to cover fixed charges by $499,000.
27
<PAGE>
The following table sets forth the computation of basic and diluted
earnings per share.
<TABLE>
<CAPTION>
Year Ended December 31,
1995 1996 1997
<S> <C> <C> <C>
Income (loss) before extraordinary item......................... $ (360) $ 6,033 $ 27,655
Income available to common shareholders
for basic earnings per share................................ (360) 6,033 27,655
Effect of dilutive securities:
Convertible preferred securities............................. -- -- 2,369
Convertible Junior Notes (a)................................. -- 515 --
Income (loss) available to common shareholders
before extraordinary item for diluted earnings
per share.................................................... $ (360) $ 6,548 $ 30,024
Weighted average shares outstanding for basic
earnings per share........................................... 2,535 5,763 14,785
Effect of dilutive securities:
Convertible preferred stock.................................. -- -- 2,067
Convertible Junior Notes(a).................................. -- 772 --
Stock options................................................ -- 56 268
Dilutive potential common shares................................ -- 828 2,335
Adjusted weighted average shares for diluted
earnings per share........................................... 2,535 6,591 17,120
Basic earnings per share........................................ $ (0.14) $ 1.05 $ 1.87
Dilutive earnings per share..................................... $ (0.14) $ 0.99 $ 1.75
</TABLE>
(a) Diluted earnings per share for the year ended December 31, 1995 does not
reflect any potential shares relating to the conversion of the Junior Note
due to the loss for that year. The assumed issuance of any additional
shares would be antidilutive.
28
<PAGE>
THE EXCHANGE OFFER
Purpose and Effect
The Old Notes, having been sold by the Company in a private transaction
not subject to the registration requirements of the Securities Act, are subject
to certain restrictions on transfer. In connection with the sale of the Old
Notes, the Company entered into the Registration Rights Agreement with the
Initial Purchasers (the "Registration Rights Agreement"), which requires that
the Company conduct the Exchange Offer. The Registration Rights Agreement
further provides that the Company use its reasonable best efforts to (i) cause a
registration statement with respect to the Exchange Offer (the "Exchange Offer
Registration Statement") to be declared effective on or before the 90th day
after the date on which the Old Notes were originally issued under the Indenture
(the "Closing Date") and (ii) consummate the Exchange Offer on or before the
120th day after the Closing Date. Except as provided below, upon the completion
of the Exchange Offer, the Company's obligation with respect to the registration
of the New Notes will terminate. The summary herein of certain provisions of the
Registration Rights Agreement does not purport to be complete and is subject to,
and is qualified in its entirety by reference thereto. Copies of the
Registration Rights Agreement are available as set forth under "Description of
the Notes--Additional Information." As a result of the filing and effectiveness
of the Exchange Offer Registration Statement, Special Interest on the Notes
provided for in the Registration Rights Agreement will not become payable by the
Company. Following the completion of the Exchange Offer (except as set forth in
the paragraph immediately below), certain holders of Old Notes not tendered will
not have any further registration rights and those Old Notes will continue to be
subject to certain restrictions on transfer.
In order to participate in the Exchange Offer, a holder must represent
to the Company, among other things, that (i) the New Notes acquired pursuant to
the Exchange Offer are being obtained in the ordinary course of such holder's
business, (ii) such holder is not engaging in and does not intend to engage in a
distribution of the New Notes, (iii) such holder does not have an arrangement or
understanding with any person to participate in the distribution of the New
Notes, and (iv) such holder is not an "affiliate," as defined under Rule 405
promulgated under the Securities Act, of the Company. Pursuant to the
Registration Rights Agreement, the Company is required to file a Shelf
Registration Statement for a continuous offering pursuant to Rule 415 under the
Securities Act in respect of the Old Notes (and cause such shelf registration
statement to be declared effective by the Commission and keep it continuously
effective, supplemented, and amended for prescribed periods) if (i) the Company
is not permitted to consummate the Exchange Offer because the Exchange Offer is
not permitted by applicable law or Commission policy, or (ii) any holder of
Transfer Restricted Securities (as defined in the Registration Rights Agreement)
notifies the Company prior to the 30th day following consummation of the
Exchange Offer (A) that such holder is prohibited by law or Commission policy
from participating in the Exchange Offer or (B) that such holder may not resell
the New Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the Exchange Offer
Registration Statement would not be available for such resale by such holder.
Other than as set forth in this paragraph, no holder will have the right to
participate in the Shelf Registration Statement nor otherwise to require that
the Company register such holder's shares of Old Notes under the Securities Act.
See "Description of the Notes--Exchange Offer; Registration Rights."
The Company has not requested, and does not intend to request, an
interpretation by the staff of the Commission with respect to whether the New
Notes issued pursuant to the Exchange Offer in exchange for the Old Notes may be
offered for sale, resold, or otherwise transferred by any holder
29
<PAGE>
without compliance with the registration and prospectus-delivery provisions of
the Securities Act. Based on interpretations by the staff of the Commission set
forth in no-action letters issued to parties unrelated to the Company, the
Company believes that New Notes issued pursuant to the Exchange Offer in
exchange for Old Notes may be offered for resale, resold and otherwise
transferred by holders thereof (other than any such holder or such other person
that is an "affiliate" of the Company within the meaning of Rule 405 under the
Securities Act), without compliance with the registration and
prospectus-delivery provisions of the Securities Act, provided that (i) the New
Notes are acquired in the ordinary course of such holder's business, (ii) such
holder is not engaging in and does not intend to engage in a distribution of the
New Notes, and (iii) such holder does not have an arrangement or understanding
with any person to participate in the distribution of the New Notes. Any holder
who tenders in the Exchange Offer with the intention to participate, or for the
purpose of participating, in a distribution of the New Notes or who is an
affiliate of the Company may not rely upon such interpretation by the staff of
the Commission and, in the absence of an exemption therefrom, must comply with
the registration and prospectus-delivery requirements of the Securities Act in
connection with any secondary resale transaction. Failure to comply with such
requirements in such instance may result in such holder incurring liabilities
under the Securities Act for which the holder is not indemnified by the Company.
Each broker-dealer that receives New Notes for its own account in exchange for
Old Notes, where those Old Notes were acquired by the broker-dealer as a result
of its market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of these New
Notes. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. The Company has
agreed that, for a period of one year after the effective date of the Exchange
Offer Registration Statement, it will make the Prospectus available to any
broker-dealer for use in connection with any such resale.
The Exchange Offer is not being made to, nor will the Company accept
surrenders for exchange from, holders of Old Notes in any jurisdiction in which
this Exchange Offer or the acceptance thereof would not be in compliance with
the securities or blue sky laws of such jurisdiction.
Participation in the Exchange Offer is voluntary and holders should
carefully consider whether to tender their Old Notes. Holders of the Old Notes
are urged to consult their financial and tax advisors in making their own
decisions on whether to participate in the Exchange Offer.
Consequences of Failure to Exchange
Old Notes that are not tendered for exchange in the Exchange Offer will
remain outstanding and interest thereon will continue to accrue. Following the
completion of the Exchange Offer (except as set forth above in the second
paragraph under "--Purpose and Effect"), holders of Old Notes not tendered will
not have any further registration rights and those Old Notes will remain
restricted securities within the meaning of Rule 144 of the Securities Act.
Accordingly, the liquidity of the market for a holder's Old Notes could be
adversely affected upon completion of the Exchange Offer if the holder does not
participate in the Exchange Offer.
30
<PAGE>
Terms of the Exchange Offer
General
Upon the terms and subject to the conditions set forth in this
Prospectus and in the Letter of Transmittal, the Company will accept any and all
Old Notes validly tendered and not withdrawn prior to 5:00 p.m., New York City
time, on the Expiration Date. The Company will issue $1,000 principal amount of
New Notes in exchange for each $1,000 principal amount of outstanding Old Notes
accepted in the Exchange Offer. Holders may tender some or all of their Old
Notes pursuant to the Exchange Offer. Old Notes may be tendered, however, only
in integral multiples of $1,000 in principal amount.
The form and terms of the New Notes are identical in all material
respects to the form and terms of the Old Notes except that (i) the New Notes
have been registered under the Securities Act and, therefore, will not bear
legends restricting their transfer and (ii) holders of the New Notes, other than
certain broker-dealers, will not be entitled to the rights of holders of the
Transfer Restricted Securities under the Registration Rights Agreement. The New
Notes will evidence the same indebtedness as the Old Notes, will be issued
pursuant to, and entitled to the benefits of, the Indenture pursuant to which
the Old Notes were issued, and will be treated as a single class thereunder with
any Old Notes that remain outstanding. The Exchange Offer is not conditioned
upon any minimum aggregate principle amount of Old Notes being tendered for
exchange.
As of the date of this Prospectus, $300.0 million aggregate principal
amount of Old Notes were outstanding and there were registered holders. This
Prospectus, together with the Letter of Transmittal, is being sent to such
registered holders and to others believed to have beneficial interests in the
Old Notes. Holders of Old Notes do not have any appraisal or dissenters' rights
under the Florida Business Corporation Act or the Indenture in connection with
the Exchange Offer. The Company intends to conduct the Exchange Offer in
accordance with the applicable requirements of the Exchange Act and the rules
and regulations of the Commission promulgated thereunder.
The Company will be deemed to have accepted validly tendered Old Notes
when, as and if the Company has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering holders
of Old Notes for the purpose of receiving the New Notes from the Company and
delivering the New Notes to such holders. If any tendered Old Notes are not
accepted for exchange because of an invalid tender, the occurrence of certain
other events set forth herein or otherwise, certificates for any such unaccepted
Old Notes will be returned, without expense, to the tendering holder thereof as
promptly as practicable after the Expiration Date.
Holders who tender Old Notes in the Exchange Offer will not be required
to pay brokerage commissions or fees or, subject to the instructions in the
Letter of Transmittal, transfer taxes with respect to the exchange of Old Notes
pursuant to the Exchange Offer. The Company will pay all charges and expenses,
other than certain applicable taxes, in connection with the Exchange Offer. See
"--Fees and Expenses."
Expiration Date; Extensions; Amendments
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
, 1998, unless the Company, in its sole discretion, extends the Exchange Offer,
in which case the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended. In order
31
<PAGE>
to extend the Exchange Offer, the Company will notify the Exchange Agent and
each registered holder of any extension by oral or written notice prior to 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. During any extension of the Exchange Offer, all Old
Notes previously tendered pursuant to the Exchange Offer and not withdrawn will
remain subject to the Exchange Offer. The date of the exchange of the New Notes
for Old Notes will be the first Nasdaq National Market ("NNM") trading day
following the Expiration Date.
The Company reserves the right, in its sole discretion, (i) to delay
accepting any Old Notes, to extend the Exchange Offer or, if any of the
conditions set forth under "--Conditions to Exchange Offer" have not been
satisfied and have not been waived by the Company, to terminate the Exchange
Offer, by giving oral or written notice of such delay, extension, or
termination, to the Exchange Agent, or (ii) to amend the terms of the Exchange
Offer in any manner deemed by it to be advantageous to the holders of the Old
Notes. Any such delay in acceptance, extension, termination or amendment will be
followed as promptly as practicable by oral or written notice thereof to the
registered holders. If the Exchange Offer is amended in any manner determined by
the Company to constitute a material change, the Company will promptly disclose
such amendment by means of a prospectus supplement that will be distributed to
the registered holders, and the Company will extend the Exchange Offer for a
period of time, depending upon the significance of the amendment and the manner
of disclosure to the registered holders, if the Exchange Offer would otherwise
expire during such period.
Interest on the New Notes
The New Notes bear interest payable semi-annually on February 15 and
August 15 of each year, commencing August 15, 1998. Holders of New Notes of
record on August 1, 1998 will receive interest on August 15, 1998 from the date
of issuance of the New Notes, plus an amount equal to the accrued interest on
the Old Notes from the date of issuance of the Old Notes, February 19, 1998, to
the date of exchange thereof. Consequently, assuming the Exchange Offer is
consummated prior to the record date in respect of the August 15, 1998 interest
payment for the Old Notes, holders who exchange their Old Notes for New Notes
will receive the same interest payment on August 15, 1998 that they would have
received had they not accepted the Exchange Offer. Interest on the Old Notes
accepted for exchange will cease to accrue upon issuance of the New Notes.
Procedures for Tendering Old Notes
The tender to the Company of Old Notes by a holder thereof pursuant to
one of the procedures set forth below will constitute an agreement between such
holder and the Company in accordance with the terms and subject to the
conditions set forth herein and in the Letter of Transmittal. A holder of the
Old Notes may tender such Old Notes by (i) properly completing, signing, and
dating a Letter of Transmittal or a facsimile thereof (all references in this
Prospectus to Letter of Transmittal shall be deemed to include a facsimile
thereof) and delivering the same, together with any corresponding certificate or
certificates representing the Old Notes being tendered (if in certificated form)
and any required signature guarantees, to the Exchange Agent at its address set
forth in the Letter of Transmittal on or prior to the Expiration Date (or
complying with the procedure for book-entry transfer described below), or (ii)
complying with the guaranteed-delivery procedures described below.
If tendered Old Notes are registered in the name of the signer of the
Letter of Transmittal and the New Notes to be issued in exchange therefor are to
be issued (and any untendered Old Notes are to be reissued) in the name of the
registered holder (which term, for the purposes described herein, shall
32
<PAGE>
include any participant in DTC (also referred to as a book-entry facility) whose
name appears on a security listing as the owner of Old Notes), the signature of
such signer need not be guaranteed. In any other case, the tendered Old Notes
must be endorsed or accompanied by written instruments of transfer in form
satisfactory to the Company and duly executed by the registered holder, and the
signature on the endorsement or instrument of transfer must be guaranteed by an
eligible guarantor institution that is a member of or a participant in the
Securities Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Program, the Stock Exchange Medallion Program or an
"eligible guarantor institution" within the meaning of Rule 17Ad-15 under the
Exchange Act (an "Eligible Institution"). If the New Notes or Old Notes not
exchanged are to be delivered to an address other than that of the registered
holder appearing on the note register for the Old Notes, the signature in the
Letter of Transmittal must be guaranteed by an Eligible Institution.
THE METHOD OF DELIVERY OF OLD NOTES, THE LETTER OF TRANSMITTAL, AND ALL
OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF
THE HOLDER. IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED MAIL,
PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED, BE USED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT
BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR OLD NOTES SHOULD BE SENT
TO THE COMPANY. ONLY HOLDERS OF OLD NOTES MAY TENDER SUCH OLD NOTES IN THE
EXCHANGE OFFER. HOLDERS MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS,
COMMERCIAL BANKS, TRUST COMPANIES, OR NOMINEES TO EFFECT THESE TRANSACTIONS FOR
SUCH HOLDERS.
Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company, or other nominee and who wishes
to tender should contact the registered holder promptly and instruct the
registered holder to tender on the beneficial owner's behalf. If the beneficial
owner wishes to tender on the owner's own behalf, the owner must, prior to
completing and executing the Letter of Transmittal and delivering the owner's
Old Notes, either make appropriate arrangements to register ownership of the Old
Notes in the beneficial owner's name or obtain a properly completed bond power
from the registered holder. The transfer of registered ownership may take
considerable time.
The Company understands that the Exchange Agent has confirmed with DTC
that any financial institution that is a participant in DTC's system may utilize
DTC's Automated Tender Offer Program ("ATOP") to tender Old Notes. The Company
further understands that the Exchange Agent will request, within two business
days after the date the Exchange Offer commences, that DTC establish an account
with respect to the Old Notes for the purpose of facilitating the Exchange
Offer, and any participant may make book-entry delivery of Old Notes by causing
DTC to transfer such Old Notes into the Exchange Agent's account in accordance
with DTC's ATOP procedures for transfer. However, the exchange of the Old Notes
so tendered will be made only after timely confirmation (a "Book-Entry
Confirmation") of such book-entry transfer and timely receipt by the Exchange
Agent of an Agent's Message (as defined in the next sentence), and any other
documents required by the Letter of Transmittal. The term "Agent's Message"
means a message, transmitted by DTC and received by the Exchange Agent and
forming a part of Book-Entry Confirmation, which states that DTC has received an
express acknowledgment from a participant tendering Old Notes which are the
subject of such Book-Entry Confirmation and that such participant has received
and agrees to be bound by the terms of the Letter of Transmittal and that the
Company may enforce such agreement against such participant.
33
<PAGE>
A tender will be deemed to have been received as of the date when (i)
the tendering holder's properly completed and duly signed Letter of Transmittal
accompanied by the Old Notes (or a confirmation of book-entry transfer of such
Old Notes into the Exchange Agent's account at DTC), is received by the Exchange
Agent, or (ii) a Notice of Guaranteed Delivery or letter, telegram, or facsimile
transmission to similar effect from an Eligible Institution is received by the
Exchange Agent. Issuances of New Notes in exchange for Old Notes tendered
pursuant to a Notice of Guaranteed Delivery or letter, telegram, or facsimile
transmission to similar effect by an Eligible Institution will be made only
against submission of a duly signed Letter of Transmittal (and any other
required documents) and deposit of the tendered Old Notes.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance, and withdrawal of tendered Old Notes will be determined by
the Company, in its sole discretion, which determination will be final and
binding. The Company reserves the absolute right to reject any or all tenders
not in proper form or the acceptance for exchange of which may, in the opinion
of counsel for the Company, be unlawful. The Company also reserves the absolute
right to waive any of the conditions of the Exchange Offer or any defect or
irregularity in the tender of any Old Notes. The Company's interpretation of the
terms and conditions of the Exchange Offer (including the instructions in the
Letter of Transmittal) will be final and binding on all parties. Unless waived,
any defects or irregularities in connection with tenders of Old Notes must be
cured within such time as the Company shall determine. Although the Company
intends to notify holders of defects or irregularities with respect to tenders
of Old Notes, neither the Company, the Exchange Agent, nor any other person
shall be under any duty to give notification of any defects or irregularities in
tenders or incur any liability for failure to give such notification. Tenders of
Old Notes will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Old Notes received by the Exchange
Agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the Exchange
Agent to the tendering holders, unless otherwise provided in the Letter of
Transmittal, as soon as practicable following the Expiration Date.
In addition, the Company reserves the right in its sole discretion to
purchase or make offers for any Old Notes that remain outstanding after the
Expiration Date or, as set forth under "--Conditions to the Exchange Offer," to
terminate the Exchange Offer and, to the extent permitted by applicable law,
purchase Old Notes in the open market, in privately negotiated transactions, or
otherwise. The terms of any such purchases or offers could differ from the terms
of the Exchange Offer.
In all cases, issuance of New Notes for Old Notes that are accepted for
exchange pursuant to the Exchange Offer will be made only after timely receipt
by the Exchange Agent of certificates for such Old Notes or a timely Book-Entry
Confirmation of such Old Notes into the Exchange Agent's account at DTC, a
properly completed and duly executed Letter of Transmittal (or, with respect to
DTC and its participants, electronic instructions in which the tendering holder
acknowledges its receipt of and agreement to be bound by the Letter of
Transmittal), and all other required documents. If any tendered Old Notes are
not accepted for any reason set forth in the terms and conditions of the
Exchange Offer or if Old Notes are submitted for a greater principal amount than
the holder desires to exchange, such unaccepted or non-exchanged Old Notes will
be returned without expense to the tendering Holder thereof (or, in the case of
Old Notes tendered by book-entry transfer into the Exchange Agent's account at
DTC pursuant to the book-entry transfer procedures described below, such
non-exchanged Old Notes will be credited to an account maintained with such
book-entry transfer facility) as promptly as practicable after the expiration or
termination of the Exchange Offer.
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Each broker-dealer that receives New Notes for its own account in
exchange for Old Notes, if the Old Notes were acquired by such broker-dealer as
a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such New Notes.
Guaranteed-Delivery Procedures
If the holder desires to accept the Exchange Offer and time will not
permit a Letter of Transmittal or Old Notes to reach the Exchange Agent before
the Expiration Date or the procedure for book-entry transfer cannot be completed
on a timely basis, a tender may be effected if the Exchange Agent has received
at its office, on or prior to the Expiration Date, a letter, telegram, or
facsimile transmission from an Eligible Institution setting forth the name and
address of the tendering holder, the name(s) in which the Old Notes are
registered and the certificate number(s) of the Old Notes to be tendered, and
stating that the tender is being made thereby and guaranteeing that, within five
NNM trading days after the date of execution of such letter, telegram, or
facsimile transmission by the Eligible Institution, such Old Notes, in proper
form for transfer (or a confirmation of book-entry transfer of such Old Notes
into the Exchange Agent's account at DTC), will be delivered by such Eligible
Institution together with a properly completed and duly executed Letter of
Transmittal (and any other required documents). Unless Old Notes being tendered
by such method are deposited with the Exchange Agent within the time period set
forth above (accompanied or preceded by a properly completed Letter of
Transmittal and any other required documents), the Company may, at its option,
reject the tender. Copies of a Notice of Guaranteed Delivery that may be used by
Eligible Institutions for the purposes described in this paragraph are available
from the Exchange Agent.
Terms and Conditions of the Letter of Transmittal
The Letter of Transmittal contains, among other things, certain terms
and conditions that are summarized below and are part of the Exchange Offer.
Each holder who participates in the Exchange Offer will be required to
represent that any New Notes received by it will be acquired in the ordinary
course of its business, that such holder is not participating in, and has no
arrangement with any person to participate in, the distribution (within the
meaning of the Securities Act) of the New Notes, and that such holder is not an
affiliate of the Company.
Old Notes tendered in exchange for New Notes (or a timely confirmation
of a book-entry transfer of such Old Notes into the Exchange Agent's account at
DTC) must be received by the Exchange Agent, with the Letter of Transmittal and
any other required documents, by the Expiration Date or within the time periods
set forth above pursuant to a Notice of Guaranteed Delivery from an Eligible
Institution. Each holder tendering the Old Notes for exchange sells, assigns,
and transfers the Old Notes to the Exchange Agent, as agent of the Company, and
irrevocably constitutes and appoints the Exchange Agent as the holder's agent
and attorney-in-fact to cause the Old Notes to be transferred and exchanged. The
holder warrants that it has full power and authority to tender, exchange, sell,
assign, and transfer the Old Notes and to acquire the New Notes issuable upon
the exchange of such tendered Old Notes, that the Exchange Agent, as agent of
the Company, will acquire good and unencumbered title to the tendered Old Notes,
free and clear of all liens, restrictions, charges and encumbrances, and that
the Old Notes tendered for exchange are not subject to any adverse claims when
accepted by the Exchange Agent, as agent of the Company. The holder also
warrants and agrees that it will, upon request, execute and deliver any
additional documents deemed by the Company or the Exchange Agent to be necessary
or desirable to
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complete the exchange, sale, assignment and transfer of the Old Notes. All
authority conferred or agreed to be conferred in the Letter of Transmittal by
the holder will survive the death, incapacity or dissolution of the holder and
any obligation of the holder shall be binding upon the heirs, personal
representatives, successors and assigns of such holder.
Withdrawal Rights
Except as otherwise provided herein, tenders of Old Notes may be
withdrawn at any time prior to 5:00 p.m., New York City time, on the Expiration
Date unless previously accepted for exchange.
To withdraw a tender of Old Notes in the Exchange Offer, a written,
facsimile, or (for DTC participation) electronic ATOP transmission notice of
withdrawal must be received by the Exchange Agent at its address set forth
herein prior to 5:00 p.m., New York City time, on the Expiration Date prior to
acceptance for exchange thereof by the Company. Any such notice of withdrawal
must (i) specify the name of the person having deposited the Old Notes to be
withdrawn (the "Depositor"), (ii) identify the Old Notes to be withdrawn
(including the certificate number or numbers and principal amount of such Old
Notes), (iii) contain a statement that such holder is withdrawing its election
to have such Old Notes exchanged, (iv) be signed by the holder in the same
manner as the original signature on the Letter of Transmittal by which such Old
Notes were tendered (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Trustee register the
transfer of such Old Notes in the name of the person withdrawing the tender, and
(v) specify the name in which any such Old Notes are to be registered, if
different from that of the Depositor. If Old Notes have been tendered pursuant
to the procedure for book-entry transfer, any notice of withdrawal must specify
the name and number of the account at the book-entry transfer facility. All
questions as to the validity, form, and eligibility (including time of receipt)
of such notices will be determined by the Company, whose determination shall be
final and binding on all parties. Any Old Notes so withdrawn will be deemed not
to have been validly tendered for purposes of the Exchange Offer and no Exchange
Notes will be issued with respect thereto unless the Old Notes so withdrawn are
validly returned. Any Old Notes that have been tendered but are not exchanged
for any reason will be returned to the holder thereof without cost to such
holder as soon as practicable after withdrawal, rejection of tender, or
termination of the Exchange Offer. Properly withdrawn Old Notes may be
retendered by following one of the procedures (described above) under
"--Procedures for Tendering Old Notes" at any time on or prior to the Expiration
Date.
Conditions to the Exchange Offer
Notwithstanding any other provision of the Exchange Offer, the Company
will not be required to accept for exchange, or to issue New Notes in exchange
for, any Old Notes and may terminate or amend the Exchange Offer if at any time
before the acceptance of such Old Notes for exchange or the exchange of the New
Notes for such Old Notes, the Company determines that the Exchange Offer
violates applicable law or Commission policy.
If the Company determines that it may terminate the Exchange Offer, as
set forth above, the Company may (i) refuse to accept any Old Notes and return
any Old Notes that have been tendered to the holders thereof, (ii) extend the
Exchange Offer and retain all Old Notes tendered prior to the Expiration of the
Exchange Offer, subject to the rights of such holders of tendered Old Notes to
withdraw their tendered Old Notes, or (iii) waive such termination event with
respect to the Exchange Offer and accept all properly tendered Old Notes that
have not been withdrawn. If such waiver constitutes a material change in the
Exchange Offer, the Company will disclose such change by means of a supplement
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to this Prospectus that will be distributed to each registered holder of Old
Notes, and the Company will extend the Exchange Offer for a period of time,
depending upon the significance of the waiver and the manner of disclosure to
the registered holders of the Old Notes, if the Exchange Offer would otherwise
expire during such period. Holders of Old Notes will have certain rights against
the Company under the Registration Rights Agreement should the Company fail to
consummate the Exchange Offer. See "Description of the Notes--Exchange Offer;
Registration Rights."
The foregoing conditions are for the sole benefit of the Company and
may be asserted by the Company regardless of the circumstances giving rise to
any such condition or may be waived by the Company in whole or in part at any
time and from time to time in its sole discretion. The failure by the Company at
any time to exercise any of the foregoing rights shall not be deemed a waiver of
any such right and each such right shall be deemed an ongoing right which may be
asserted at any time and from time to time.
In addition, the Company will not accept for exchange any Old Notes
tendered, and no New Notes will be issued in exchange for, any such Old Notes,
if at such time any stop order shall be threatened or in effect with respect to
the Exchange Offer Registration Statement of which this Prospectus constitutes a
part of the qualification of the Indenture under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). In any such event the Company is
required to use every reasonable effort to obtain the withdrawal of any stop
order at the earliest possible time.
Exchange Agent
The Bank of New York has been appointed as Exchange Agent for the
Exchange Offer. Questions and requests for assistance and requests for
additional copies of this Prospectus or of the Letter of Transmittal should be
directed to the Exchange Agent addressed as follows:
For Information by Telephone:
(Eligible Institutions Only)
(212) 815-6333
By Registered or Certified Mail: By Hand or Overnight Delivery Service:
The Bank of New York The Bank of New York
101 Barclay Street, 7E 101 Barclay Street
New York, New York 10286 Corporate Trust Services Window
Attn: Reorganization Section Ground Level
New York, New York 10286
By Facsimile Transmission:
(212) 571-3080
Fees and Expenses
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitations
may be made by telecopy, telephone, or in person by officers and regular
employees of the Company. No additional compensation will be paid to any such
officers and employees who engage in soliciting tenders. The Company will not
make any payments to brokers, dealers, or other persons soliciting acceptances
of the Exchange Offer. The Company will,
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however, pay the Exchange Agent reasonable and customary fees for its services
and will reimburse the Exchange Agent for its reasonable out-of-pocket expenses
in connection therewith. The Company may also pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this Prospectus, Letters of Transmittal
and related documents to the beneficial owners of the Old Notes and in handling
or forwarding tenders for exchange.
The expenses to be incurred in connection with the Exchange Offer,
including fees and expenses of the Exchange Agent, accounting, legal and related
fees and expenses, will be paid by the Company.
DESCRIPTION OF THE NOTES
The Notes were issued pursuant to an indenture, dated as of February
19, 1998 (the "Indenture") by and among the Company, the Guarantors, and The
Bank of New York, as trustee under the Indenture (the "Trustee"), in a private
transaction not subject to the registration requirements of the Securities Act.
Upon the effectiveness of the Exchange Offer Registration Statement, the
Indenture was qualified under the Trust Indenture Act. The Notes are subject to
the terms stated in the Indenture and the Trust Indenture Act. Holders of the
Notes are referred to the Indenture and the Trust Indenture Act for a statement
of those terms. The statements and definitions of terms under this caption
relating to the Notes, the Guarantees, and the Indenture described below are
summaries and do not purport to be complete. Such summaries make use of certain
terms defined in the Indenture and are qualified in their entirety by express
reference to the Indenture. A copy of the Indenture is available as set forth
under "--Additional Information." For purposes of this section of this
Prospectus references to the "Company" means Hvide Marine Incorporated,
excluding its subsidiaries. Certain terms used herein are defined below under
"--Certain Definitions."
General
The Notes are general unsecured senior obligations of the Company,
limited in aggregate principal amount at Stated Maturity to $300.0 million. The
Indebtedness evidenced by the Notes ranks pari passu in right of payment with
all indebtedness and other liabilities of the Company that are not subordinated
by their express terms to other Indebtedness of the Company and senior to all
Indebtedness of the Company that by its terms is so subordinated, including the
Debentures, the Debenture Indenture, and the Trust Preferred Securities
Guarantee. The Notes are effectively subordinated to all existing and future
secured Indebtedness of the Company to the extent of the value of the assets
securing such Indebtedness (including up to $325.0 million under the Credit
Facility). To the extent that the value of such collateral is not sufficient to
satisfy the indebtedness secured thereby, amounts remaining outstanding on such
Indebtedness would be entitled to share with the claims of holders of the Notes
and the Trustee with respect to any other assets of the Company. As of September
30, 1997, after giving effect to the Original Offering and the application of
the proceeds therefrom and the Recent Acquisitions, the Company and its
subsidiaries would have had outstanding approximately $195.8 million of secured
Indebtedness and approximately $343.7 million of unsecured Senior Indebtedness
and other liabilities. See "--Certain Covenants--Limitation on Indebtedness" and
"--Limitation on Subsidiary Indebtedness and Preferred Stock."
The Indenture provides that each of the Company's Subsidiaries that has
guaranteed Indebtedness of the Company or other Obligor (and any other
Subsidiary that guarantees any Indebtedness of the Company or other Obligor in
the future) is a Guarantor. The Guarantees are senior unsecured obligations of
each respective Guarantor and rank pari passu in right of payment with all other
Indebtedness and
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liabilities of such Guarantor that are not subordinated by their terms to other
Indebtedness of such Guarantor, and senior in right of payment to all
Subordinated Indebtedness of such Guarantor. However, the Guarantees are
effectively subordinated to secured indebtedness of the Guarantors (including
guarantees of the Credit Facility and the Term Loan). The holders of any secured
Indebtedness of a Guarantor have claims with respect to the assets of such
Guarantor securing such Indebtedness that is prior to claims of holders of the
Notes and the Trustee under its Guarantee. In the event of a bankruptcy,
liquidation, or reorganization of such Guarantor, such assets will be available
to satisfy obligations with respect to the Indebtedness secured thereby before
any payment therefrom could be made on the Notes or the Guarantees.
The Notes are effectively subordinated to claims of creditors (other
than the Company or any Guarantor) of the Company's Subsidiaries other than the
Guarantors. Claims of creditors (other than the Company or a Guarantor) of such
Subsidiaries, including trade creditors, tort claimants, secured creditors,
taxing authorities and creditors holding guarantees, do have priority as to
assets of such Subsidiaries over the claims and equity interests of the Company
and/or the Guarantors and, thereby indirectly, the holders of the indebtedness
of the Company or the Guarantors, as applicable, including the Notes and the
Subsidiary Guarantees. The Indenture permits under limited circumstances the
creation of, or the designation of existing Subsidiaries as, Unrestricted
Subsidiaries. The Notes are effectively subordinated to claims of creditors
(other than the Company or a Guarantor) of any Unrestricted Subsidiaries.
Unrestricted Subsidiaries are not generally subject to the covenants applicable
to the Company and the Subsidiaries under the Indenture. See "--Certain
Covenants--Unrestricted Subsidiaries."
Principal, Maturity and Interest
The Notes are limited in aggregate principal amount to $300.0 million
and mature on February 15, 2008. The Notes bear interest at 83/8% per annum from
the most recent interest payment date to which interest has been paid or
provided for, or, if no interest has been paid, from the date of original
issuance. Interest on the Notes is payable semi-annually in arrears on February
15 and August 15 of each year, commencing August 15, 1998, to the Persons in
whose names such Notes are registered at the close of business on the January 31
or July 31, immediately preceding such interest payment date. Interest is
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The Notes may be presented or surrendered for payment of principal,
premium, if any, and interest and for registration of transfer or exchange, at
the office or agency of the Company within the City and State of New York,
maintained for such purpose. In addition, in the event the Notes do not remain
in book-entry form, interest may be paid, at the option of the Company, by check
mailed to the registered holders of the Notes at the respective addresses as set
forth on the Note Register. The Notes are issued only in fully registered form,
without coupons, in denominations of $1,000 and integral multiples thereof. No
service charge will be made for any registration of transfer or exchange or
redemption of Notes, but the Company or the Trustee may require in certain
circumstances payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Guarantees of Notes
Each Guarantor has unconditionally guaranteed, jointly and severally,
to each holder and the Trustee, the full and prompt performance of the Company's
Obligations under the Indenture and the Notes, including the payment of
principal of, premium, if any, and interest on the Notes pursuant to its
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Guarantee. As of the Issue Date, the Initial Guarantors are the only Guarantors.
Such Guarantors guarantee the obligations of the Company under the Company's
existing Credit Agreement. The Company will cause each Subsidiary that
guarantees any Indebtedness of the Company or any other Obligor to execute and
deliver a supplement to the Indenture pursuant to which such Subsidiary will
guarantee the payment of the Notes on the same terms and conditions as the
Guarantees by the Initial Guarantors. The maximum aggregate liability of Seabulk
Transmarine Partnership, Ltd. and Seabulk America Partnership, Ltd. under their
Guarantees is limited to 66 2/3% of the fair market value, from time to time, of
the Seabulk America, Official No. 961357.
The Obligations of each Guarantor is limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or
on behalf of any other Guarantor in respect of the Obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
the Indenture, result in the Obligations of such Guarantor under its Guarantee
not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law or otherwise not being void, voidable, or unenforceable under any
bankruptcy, reorganization, receivership, insolvency, liquidation, or other
similar legislation or legal principles under any applicable foreign law. Each
Guarantor that makes a payment or distribution under a Guarantee shall be
entitled to a contribution from each other Guarantor in a pro rata amount based
on the Adjusted Net Assets of each Guarantor.
Each Guarantor may consolidate with or merge into or sell or otherwise
dispose of all or substantially all of its Property and assets to the Company or
another Guarantor without limitation, except to the extent any such transaction
is subject to the "Consolidation, Merger, Conveyance, Lease or Transfer"
covenant of the Indenture. Each Guarantor may consolidate with or merge into or
sell all or substantially all of its Property and assets to a Person other than
the Company or another Guarantor (whether or not Affiliated with the Guarantor),
provided that (a) if the surviving Person is not the Guarantor, the surviving
Person agrees to assume such Guarantor's Guarantee and all its Obligations
pursuant to the Indenture (except to the extent the following paragraph would
result in the release of such Guarantee) and (b) such transaction does not (i)
violate any of the covenants described below under "--Certain Covenants" or (ii)
result in a Default or Event of Default being in existence or continuing
immediately thereafter.
Upon the sale or other disposition (by merger or otherwise) of a
Guarantor (or all or substantially all of its Property and assets) to a Person
other than the Company or another Guarantor and pursuant to a transaction that
is otherwise in compliance with the Indenture (including as described in clause
(b) of the foregoing paragraph and as described below in the covenant described
"--Certain Covenants--Limitation on Asset Sales"), such Guarantor (unless it
otherwise remains a Subsidiary) shall be deemed released from its Guarantee and
the related Obligations set forth in the Indenture; provided that any such
termination shall occur only to the extent that all Obligations of such
Guarantor under all of its guarantees of and under all of its pledges of assets
or other security interests which secure, other Indebtedness of the Company or
any other Subsidiary shall also terminate or be released upon such sale or other
disposition. Each Guarantor that is designated as an Unrestricted Subsidiary in
accordance with the Indenture shall be released from its Guarantee and the
related Obligations set forth in the Indenture so long as it remains an
Unrestricted Subsidiary.
The Indenture provides that any Guarantee by a Subsidiary (including an
Initial Guarantor) shall be automatically and unconditionally released and
discharged, as evidenced by a supplemental indenture executed by the Company,
the Guarantors, if any, and the Trustee, upon the release or discharge of the
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guarantee which resulted in the creation of such Subsidiary's Guarantee and all
other guarantees of the Obligations of any Obligor on the Notes, except a
discharge or release by, or as a result of, payment under such guarantee.
Optional Redemption
Except as provided in the next paragraph, the Notes are not redeemable
at the option of the Company prior to February 15, 2003. On or after such date,
the Notes will be redeemable at the option of the Company, in whole at any time
or in part from time to time, at the following prices (expressed in percentages
of the principal amount thereof), if redeemed during the twelve-month period
beginning February 15 of the years indicated below, in each case together with
interest accrued to the redemption date (subject to the right of holders of
record on the relevant record date to receive interest due on the relevant
interest payment date):
Year Percentage
2003.............................................. 104.188%
2004.............................................. 102.792%
2005.............................................. 101.396%
2006 and thereafter............................... 100.000%
Notwithstanding the foregoing, at any time during the first 36 months
after the Issue Date, the Company may, at its option, redeem up to a maximum of
35% of the aggregate principal amount of the Notes with the net cash proceeds of
one or more Public Equity Offerings at a redemption price equal to 108.375% of
the principal amount thereof, plus accrued and unpaid interest thereon to the
redemption date; provided that at least 65% of the aggregate principal amount of
Notes originally issued shall remain outstanding immediately after the
occurrence of any such redemption; and provided, further, that each such
redemption shall occur within 90 days of the closing of such Public Equity
Offering.
If fewer than all the Notes are redeemed, selection for redemption will
be made by the Trustee in accordance with the principal stock exchange, if any,
on which the Notes are listed, or, if the Notes are not so listed, on a pro rata
basis, by lot or by any other means which the Trustee determines to be fair and
appropriate.
Change of Control
Upon the occurrence of a Change of Control, each holder will have the
right to require the Company to repurchase such holder's Notes in whole or in
part (the "Change of Control Offer") at a purchase price (the "Change of Control
Purchase Price") in cash equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon, if any, and Special Interest,
if any, to the Change of Control Payment Date (as defined below) on the terms
described below.
Within 30 days following any Change of Control, the Company or the
Trustee (at the expense of the Company) will mail a notice to each holder and to
the Trustee stating, among other things, (i) that a Change of Control has
occurred and a Change of Control Offer is being made as provided for in the
Indenture, and that, although holders are not required to tender their Notes,
all Notes that are validly tendered will be accepted for payment; (ii) the
Change of Control Purchase Price and the repurchase date, which will be no
earlier than 30 days and no later than 60 days after the date such notice is
mailed (the "Change of Control Payment Date"); (iii) that any Note accepted for
payment pursuant to the Change
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of Control Offer (and duly paid for on the Change of Control Payment Date) will
cease to accrue interest and Special Interest, if applicable, after the Change
of Control Payment Date; (iv) that any Notes (or portions thereof) not validly
tendered will continue to accrue interest and Special Interest, if applicable;
(v) the procedures that holders of Notes must follow to withdraw an election to
tender Notes (or portions thereof); and (vi) the instructions and any other
information necessary to enable holders to tender their Notes (or portions
thereof) and have such Notes (or portions thereof) purchased pursuant to the
Change of Control Offer. The Company will comply with any applicable tender
offer rules (including, without limitation, any applicable requirements of Rule
14e-1 under the Exchange Act) in the event that the Change of Control Offer is
triggered under the circumstances described herein.
The existence of the holders' rights to require, subject to certain
conditions, the Company to repurchase Notes upon a Change of Control may deter a
third party from acquiring the Company in a transaction that constitutes a
Change of Control. The source of funds for the repurchase of Notes upon a Change
of Control will be the Company's cash or cash generated from operations or other
sources, including borrowings or sales of assets; however, a "Change of Control"
(as defined in the Revolving Credit Agreement) constitutes an event of default
thereunder that alleviates the lenders from any obligation to make loans and
allows them to accelerate the Indebtedness outstanding thereunder. There can be
no assurance that sufficient funds will be available at the time of any Change
of Control to repay all amounts owing under such other Indebtedness or to make
the required payments of the Notes. See "Risk Factors--Risk of Inability to
Repurchase the Notes Upon a Change of Control." In the event that a Change of
Control Offer occurs at a time when the Company does not have sufficient
available funds to pay the Change of Control Purchase Price for all Notes
validly tendered pursuant to such offer or at a time when the Company is
prohibited from purchasing the Notes (and the Company is unable either to obtain
the consent of the holders of the relevant Indebtedness or to repay such
Indebtedness), an Event of Default would occur under the Indenture. In addition,
one of the events that constitutes a Change of Control under the Indenture is a
sale, conveyance, transfer or lease of all or substantially all of the assets of
the Company or the Company and the Subsidiaries, taken as a whole. The Indenture
is governed by New York law, and there is no established quantitative definition
under New York law of "substantially all" of the assets of a corporation.
Accordingly, if the Company or its Subsidiaries were to engage in a transaction
in which it or they disposed of less than all of the assets of the Company or
the Company and its Subsidiaries taken as a whole, as applicable, a question or
interpretation could arise as to whether such disposition was of "substantially
all" of its assets and whether the Company was required to make a Change of
Control Offer.
The Company will not be required to make a Change of Control Offer upon
a Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in the Indenture applicable to a Change of Control Offer made by the Company and
repurchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
Except as described above with respect to a Change of Control, the
Indenture does not contain provisions that permit the holders to require the
Company to repurchase or redeem the Notes in the event of a takeover,
recapitalization, or similar restructuring. The provisions of the Indenture may
not afford holders protection in the event of a highly leveraged transaction,
reorganization, restructuring, merger, or similar transaction affecting the
Company that may adversely affect holders because (i) such transactions may not
involve a shift in voting power or beneficial ownership or, even if they do, may
not involve a shift of the magnitude required under the definition of Change of
Control to require the Company to make a Change of Control Offer or (ii) such
transactions may include an actual shift in
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voting power or beneficial ownership to a Permitted Holder which is excluded
under the definition of Change of Control from the amount of shares involved in
determining whether or not the transaction involves a shift of the magnitude
required to trigger the provisions. A transaction involving the management of
the Company or its Affiliates, or a transaction involving a recapitalization of
the Company, will result in a Change of Control only if it is the type of
transaction specified in such definition.
Certain Covenants
Set forth below are certain covenants contained in the Indenture.
Transactions with Affiliates. The Indenture provides that, the Company
will not, and will not permit any Subsidiary to, directly or indirectly, enter
into or permit to exist any transaction or series of related transactions
(including, but not limited to, the purchase, sale or exchange of Property, the
making of any Investment, the giving of any guarantee or the rendering of any
service with any Affiliate of the Company, other than transactions among the
Company and any Subsidiaries) unless (i) such transaction or series of related
transactions is on terms no less favorable to the Company or such Subsidiary
than those that could be obtained in a comparable arm's length transaction with
a Person that is not such an Affiliate, and (ii) (a) with respect to a
transaction or series of related transactions that has a Fair Market Value in
excess of $2.0 million, the transaction or series of related transactions is
approved by a majority of the Board of Directors of the Company (including a
majority of the disinterested directors), which approval is set forth in a Board
Resolution certifying that such transaction or series of transactions complies
with clause (i) above , and (b) with respect to a transaction or series of
related transactions that has a Fair Market Value in excess of $10.0 million,
the Company delivers an opinion as to the fairness from a financial point of
view to the Company or such Subsidiary issued by an investment banking firm of
nationally recognized standing or other independent appraisal firm or expert of
nationally recognized standing that is qualified, in the reasonable and good
faith judgment of the Board of Directors, to perform the task for which it has
been engaged. The foregoing provisions shall not be applicable to (i) reasonable
and customary compensation, indemnification and other benefits paid or made
available to an officer, director, or employee of the Company or a Subsidiary
for services rendered in such person's capacity as an officer, director, or
employee (including reimbursement or advancement of reasonable out-of-pocket
expenses and provisions of directors' and officers' liability insurance) or (ii)
the making of any Restricted Payment otherwise permitted by the Indenture.
Limitation on Restricted Payments. The Company will not, and will not
permit any Subsidiary to, make any Restricted Payment, unless at the time of and
after giving effect to the proposed Restricted Payment, (a) no Default shall
have occurred and be continuing (or would result therefrom), (b) the Company
could incur at least $1.00 of additional Indebtedness under the test described
in the first sentence under the caption"--Certain Covenants--Limitation on
Indebtedness" and (c) the aggregate amount of all Restricted Payments declared
or made on or after the Issue Date by the Company or any Subsidiary shall not
exceed the sum of (i) $15.0 million, plus (ii) 50% (or if such Consolidated Net
Income shall be a deficit, minus 100% of such deficit) of the aggregate
Consolidated Net Income accrued during the period beginning on the first day of
the fiscal quarter in which the Issue Date falls and ending on the last day of
the fiscal quarter ending immediately prior to the date of such proposed
Restricted Payment, minus 100% of the amount of any writedowns, write-offs, and
other negative extraordinary charges not otherwise reflected in Consolidated Net
Income during such period, plus (iii) an amount equal to the aggregate net cash
proceeds received by the Company, subsequent to the Issue Date, from the
issuance or sale (other than to a Subsidiary) of shares of its Capital Stock
(excluding Redeemable Stock,
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but including Capital Stock issued upon the exercise of options, warrants, or
rights to purchase Capital Stock (other than Redeemable Stock) of the Company)
and the liability (expressed as a positive number) as expressed on the face of a
balance sheet in accordance with GAAP in respect of any Indebtedness of the
Company or any of its Subsidiaries, or the carrying value of Redeemable Stock,
which has been converted into, exchanged for or satisfied by the issuance of
shares of Capital Stock (other than Redeemable Stock) of the Company, subsequent
to the Issue Date, plus (iv) 100% of the net reduction in Restricted
Investments, subsequent to the Issue Date, in any Person, resulting from
payments of interest on Indebtedness, dividends, repayments of loans or
advances, or other transfers of Property (but only to the extent such interest,
dividends, repayments or other transfers of Property are not included in the
calculation of Consolidated Net Income), in each case to the Company or any
Subsidiary from any Person (including, without limitation, from Unrestricted
Subsidiaries) or from redesignations of Unrestricted Subsidiaries as
Subsidiaries (valued in each case as provided in the definition of
"Investments"), not to exceed in the case of any Person the amount of Restricted
Investments previously made by the Company or any Subsidiary in such Person and
in each such case which was treated as a Restricted Payment.
The foregoing provisions will not prevent (A) the payment of any
dividend on Capital Stock of any class within 60 days after the date of its
declaration if at the date of declaration such payment would be permitted by the
Indenture; (B) any repurchase or redemption of Capital Stock or Subordinated
Indebtedness of the Company or a Subsidiary made by exchange for Capital Stock
of the Company (other than Redeemable Stock), or out of the net cash proceeds
from the substantially concurrent issuance or sale (other than to a Subsidiary)
of Capital Stock of the Company (other than Redeemable Stock), provided that the
net cash proceeds from such sale are excluded from computations under clause
(c)(iii) above to the extent that such proceeds are applied to purchase or
redeem such Capital Stock or Subordinated Indebtedness; (C) so long as no
Default shall have occurred and be continuing or should occur as a consequence
thereof, any repurchase or redemption of Subordinated Indebtedness of the
Company or a Subsidiary solely in exchange for, or out of the net cash proceeds
from the substantially concurrent sale of, new Subordinated Indebtedness of the
Company or a Subsidiary, so long as such Subordinated Indebtedness is permitted
under the covenant described under "--Limitation on Indebtedness" and (x) is
subordinated to the Notes at least to the same extent as the Subordinated
Indebtedness so exchanged, purchased, or redeemed, (y) has a stated maturity
later than the stated maturity of the Subordinated Indebtedness so exchanged,
purchased, or redeemed and (z) has an Average Life at the time incurred that is
greater than the remaining Average Life of the Subordinated Indebtedness so
exchanged, purchased, or redeemed; and (D) Investments in any Joint Ventures in
an aggregate amount not to exceed $25.0 million. Notwithstanding the foregoing,
the amount available for Investments in Joint Ventures pursuant to clause (D) of
the preceding sentence may be increased by the aggregate amount received by the
Company and its Subsidiaries from a Joint Venture on or before such date
resulting from payments of interest on Indebtedness, dividends, repayments of
loans or advances or other transfers of Property made to such Joint Venture (but
only to the extent such interest, dividends, repayments or other transfers of
Property are not included in the calculation of Consolidated Net Income).
Restricted Payments permitted to be made as described in the first sentence of
this paragraph will be excluded in calculating the amount of Restricted Payments
thereafter, except that any such Restricted Payments permitted to be made
pursuant to clause (D) will be included in calculating the amount of Restricted
Payments made pursuant to such clause (D) thereafter.
For purposes of this covenant, if a particular Restricted Payment
involves a non-cash payment, including a distribution of assets, then such
Restricted Payment shall be deemed to be an amount equal
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to the cash portion of such Restricted Payment, if any, plus an amount equal to
the Fair Market Value of the non-cash portion of such Restricted Payment.
Limitation on Indebtedness. The Company will not, and will not permit
any Subsidiary to, directly or indirectly, incur any Indebtedness (including
Acquired Indebtedness), unless after giving pro forma effect to the incurrence
of such Indebtedness, the Consolidated Interest Coverage Ratio for the
Determination Period preceding the Transaction Date is at least 2.25 to 1.0.
Notwithstanding the foregoing, the Company or any Subsidiary may incur Permitted
Indebtedness which such Person is permitted thereby to incur. Any Indebtedness
of a Person existing at the time at which such Person becomes a Subsidiary
(whether by merger, consolidation, acquisition, or otherwise) shall be deemed to
be incurred by such Subsidiary at the time at which it becomes a Subsidiary.
Limitation on Subsidiary Indebtedness and Preferred Stock. The Company
will not permit any Subsidiary to, directly or indirectly, incur any
Indebtedness or issue any Preferred Stock except:
(a) Indebtedness or Preferred Stock issued to and held by the
Company or a Subsidiary, so long as any transfer of such Indebtedness
or Preferred Stock to a Person other than the Company or a Subsidiary
will be deemed to constitute an incurrence of such Indebtedness or
Preferred Stock by the issuer thereof as of the date of such transfer;
(b) Acquired Indebtedness or Preferred Stock of a Subsidiary
issued and outstanding prior to the date on which such Subsidiary was
acquired by the Company (other than Indebtedness or Preferred Stock
issued in connection with or in anticipation of such acquisition);
(c) Indebtedness or Preferred Stock outstanding on the Issue
Date and listed in a schedule attached to the Indenture;
(d) Indebtedness permitted to be incurred by the first
sentence of the covenant described in "--Limitation on Indebtedness"
and Indebtedness described in clauses (b), (c), (d), (e), (f), (g), and
(h) under the definition of "Permitted Indebtedness";
(e) Permitted Subsidiary Refinancing Indebtedness of such
Subsidiary; and
(f) Indebtedness of a Subsidiary which represents the
assumption by such Subsidiary of Indebtedness of another Subsidiary in
connection with a merger of such Subsidiaries, provided that no
Subsidiary or any successor (by way of merger) thereto existing on the
Issue Date shall assume or otherwise become responsible for any
Indebtedness of an entity which is not a Subsidiary on the Issue Date,
except to the extent that a Subsidiary would be permitted to incur such
Indebtedness under this paragraph.
Limitations on Dividends and Other Payment Restrictions Affecting
Subsidiaries. The Company will not, and will not permit any Subsidiary, directly
or indirectly, to create, enter into any agreement with any Person or otherwise
cause or suffer to exist or become effective any consensual encumbrance or
restriction of any kind which by its terms restricts the ability of any
Subsidiary to (a) pay dividends, in cash or otherwise, or make any other
distributions on its Capital Stock to the Company or any Subsidiary, (b) pay any
Indebtedness owed to the Company or any Subsidiary, (c) make loans or advances
to the Company or any Subsidiary, or (d) transfer any of its Property or assets
to the Company or any Subsidiary except any encumbrance or restriction contained
in any agreement or instrument:
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(i) existing on the Issue Date;
(ii) relating to any Property or assets acquired after the
Issue Date, so long as such encumbrance or restriction relates only to
the Property or assets so acquired and is not and are not created in
anticipation of such acquisition;
(iii) relating to any Acquired Indebtedness of any Subsidiary
at the date on which such Subsidiary was acquired by the Company or any
Subsidiary (other than Indebtedness incurred in anticipation of such
acquisition);
(iv) effecting a refinancing of Indebtedness incurred pursuant
to an agreement referred to in the foregoing clauses (i) through (iii),
so long as the encumbrances and restrictions contained in any such
refinancing agreement are no more restrictive than the encumbrances and
restrictions contained in such agreements;
(v) constituting customary provisions restricting subletting
or assignment of any lease of the Company or any Subsidiary or
provisions in license agreements or similar agreements that restrict
the assignment of such agreement or any rights thereunder;
(vi) constituting restrictions on the sale or other
disposition of any Property securing Indebtedness as a result of a
Permitted Lien on such Property;
(vii) constituting any temporary encumbrance or restriction
with respect to a Subsidiary pursuant to an agreement that has been
entered into for the sale or disposition of all or substantially all of
the Capital Stock of, or Property and assets of, such Subsidiary; or
(viii) governing Senior Debt permitted to be incurred under
the Indenture, provided that the terms and conditions of any such
restrictions and encumbrances are not materially more restrictive than
those contained in the Indenture.
Limitation on Asset Sales. The Company will not engage in, and will not
permit any Subsidiary to engage in, any Asset Sale unless (a) except in the case
of an Asset Sale resulting from the requisition of title to, seizure or
forfeiture of any Property or assets or any actual or constructive total loss or
an agreed or compromised total loss, the Company or such Subsidiary, as the case
may be, receives consideration at the time of such Asset Sale at least equal to
the Fair Market Value of the Property; (b) at least 75% of such consideration
consists of Cash Proceeds (or the assumption of Indebtedness of the Company or
such Subsidiary relating to the Capital Stock or Property or asset that was the
subject of such Asset Sale and the unconditional release of the Company or such
Subsidiary from such Indebtedness); (c) after giving effect to such Asset Sale,
the total non-cash consideration held by the Company from all such Asset Sales
does not exceed $10.0 million; and (d) the Company delivers to the Trustee an
Officers' Certificate certifying that such Asset Sale complies with clauses (a),
(b), and (c). The Company or such Subsidiary, as the case may be, may apply the
Net Available Proceeds from each Asset Sale (x) to the acquisition of one or
more Replacement Assets, or (y) to repurchase or repay Senior Debt (with a
permanent reduction of availability in the case of revolving credit borrowings);
provided that such acquisition or such repurchase or repayment shall be made
within 365 days after the consummation of the relevant Asset Sale; provided,
further, that any such Net Available Proceeds that are applied to the
acquisition of Replacement Assets pursuant to any binding agreement to construct
any new marine vessel useful in the business of the Company or any of its
Subsidiaries shall be deemed to have been applied
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for such purpose within such 365-day period so long as they are so applied
within 18 months of the effective date of such agreement but no later than two
years after the date of receipt of such Net Available Proceeds.
Any Net Available Proceeds from any Asset Sale that are not used to so
acquire Replacement Assets or to repurchase or repay Senior Debt within 365 days
after consummation of the relevant Asset Sale constitute "Excess Proceeds." When
the aggregate amount of Excess Proceeds exceeds $15.0 million, the Company shall
within 30 days thereafter, or at any time after receipt of Excess Proceeds but
prior to there being $15.0 million of Excess Proceeds, the Company may, at its
option, make a pro rata offer (an "Asset Sale Offer") to all holders of Notes
and holders of Senior Debt, if and to the extent the Company is required by the
instruments governing such Senior Debt to make such an offer, to purchase Notes
and such Senior Debt in an aggregate amount equal to the Excess Proceeds, at a
price in cash (the "Asset Sale Offer Purchase Price") equal to 100% of the
outstanding principal of the Notes plus accrued interest and Special Interest,
if any, to the date of purchase and, in the case of such other Senior Debt, 100%
of the principal amount thereof, plus accrued and unpaid interest, if any,
thereon to the date of purchase, in accordance with the procedures set forth in
the Indenture. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset to zero and the Company may use any remaining amount for
general corporate purposes.
The Company will comply with any applicable tender offer rules
(including, without limitation, any applicable requirements of Rule 14e-1 under
the Exchange Act) in the event that an Asset Sale Offer is required under the
circumstances described herein.
Limitation on Sale and Lease-Back Transactions. The Company will not,
and will not permit any Subsidiary to, directly or indirectly, enter into,
assume, guarantee, or otherwise become liable with respect to any Sale and
Lease-Back Transaction unless (i) the proceeds from such Sale and Lease-Back
Transaction are at least equal to the Fair Market Value of such Property being
transferred and (ii) the Company or such Subsidiary would have been permitted to
enter into such transaction under the covenants described in "--Certain
Covenants--Limitation on Indebtedness," "--Certain Covenants--Limitation on
Liens," and "--Certain Covenants--Limitation on Subsidiary Indebtedness and
Preferred Stock."
Limitation on Liens. The Company will not, and will not permit any
Subsidiary to, directly or indirectly, create, affirm, incur, assume, or suffer
to exist any Liens of any kind other than Permitted Liens on or with respect to
any Property or assets of the Company or such Subsidiary or any interest therein
or any income or profits therefrom, whether owned at the Issue Date or
thereafter acquired, without effectively providing that the Notes shall be
secured equally and ratably with (or prior to) the Indebtedness so secured for
so long as such obligations are so secured.
Limitation on Guarantees by Subsidiaries. The Company will not permit
any Subsidiary to guarantee the payment of any Subordinated Indebtedness of the
Company unless such Subsidiary becomes a Guarantor and such guarantee is
subordinated to such Guarantor's Guarantee at least to the same extent as such
Subordinated Indebtedness is subordinated to the Notes; provided that this
covenant will not be applicable to any guarantee of any Guarantor that (i)
existed at the time at which such Person became a Subsidiary of the Company and
(ii) was not incurred in connection with, or in contemplation of, such Person's
becoming a Subsidiary of the Company.
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Unrestricted Subsidiaries. The Indenture provides that the Company may
designate a subsidiary (including a newly formed or newly acquired subsidiary)
of the Company or any of its Subsidiaries as an Unrestricted Subsidiary;
provided that (i) immediately after giving effect to the transaction, the
Company could incur $1.00 of additional Indebtedness pursuant to the first
sentence of "--Certain Covenants--Limitation on Indebtedness" and (ii) such
designation is at the time permitted under "--Certain Covenants--Limitation on
Restricted Payments." Notwithstanding any provisions of this covenant all
subsidiaries of an Unrestricted Subsidiary will be Unrestricted Subsidiaries.
The Indenture further provides that the Company will not, and will not
permit any of its Subsidiaries to, take any action or enter into any transaction
or series of transactions that would result in a Person (other than a newly
formed subsidiary having no outstanding Indebtedness (other than Indebtedness to
the Company or a Subsidiary) at the date of determination) becoming a Subsidiary
(whether through an acquisition, the redesignation of an Unrestricted
Subsidiary, or otherwise) unless, after giving effect to such action,
transaction or series of transactions on a pro forma basis, (i) the Company
could incur at least $1.00 of additional Indebtedness pursuant to the first
sentence of "--Certain Covenants--Limitation on Indebtedness" and (ii) no
Default or Event of Default would occur.
Subject to the preceding paragraphs, an Unrestricted Subsidiary may be
redesignated as a Subsidiary. The designation of a subsidiary as an Unrestricted
Subsidiary or the designation of an Unrestricted Subsidiary as a Subsidiary in
compliance with the preceding paragraphs shall be made by the Board of Directors
pursuant to a Board Resolution delivered to the Trustee and shall be effective
as of the date specified in such Board Resolution, which shall not be prior to
the date such Board Resolution is delivered to the Trustee. Any Unrestricted
Subsidiary shall become a Subsidiary if it incurs any Indebtedness other than
Non-Recourse Indebtedness. If at any time Indebtedness of an Unrestricted
Subsidiary which was Non-Recourse Indebtedness no longer so qualifies, such
Indebtedness shall be deemed to have been incurred when such Non-Recourse
Indebtedness becomes Indebtedness.
Limitations on Line of Business. The Indenture provides that neither
the Company nor any of its Subsidiaries will directly or indirectly engage to
any substantial extent in any line or lines of business activity other than a
Related Business.
Reports. The Indenture provides that, whether or not the Company is
subject to Section 13(a) or 15(d) of the Exchange Act, or any successor
provision thereto, the Company shall file with the Commission the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) or
any successor provision thereto if the Company were subject thereto, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Company would have been required to
file them. The Company shall also (whether or not it is required to file reports
with the Commission), within 30 days of each Required Filing Date, (i) transmit
by mail to all holders of Notes, as their names and addresses appear in the
applicable Security Register, without cost to such holders or Persons, and (ii)
file with the Trustee, copies of the annual reports, quarterly reports and other
documents (without exhibits) which the Company has filed or would have filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act, any
successor provisions thereto or this covenant. The Company shall not be required
to file any report with the Commission if the Commission does not permit such
filing.
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Consolidation, Merger, Conveyance, Lease, or Transfer
The Company will not, in any transaction or series of transactions,
consolidate with or merge into any other Person (other than a merger of a Wholly
Owned Subsidiary into the Company in which the Company is the continuing
corporation), continue in a new jurisdiction or sell, convey, assign, transfer,
lease or otherwise dispose of all or substantially all of the Property and
assets of the Company and the Subsidiaries, taken as a whole, to any Person,
unless
(i) either (a) the Company shall be the continuing corporation
or (b) the corporation (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person which
acquires, by sale, assignment, conveyance, transfer, lease or
disposition, all or substantially all of the Property and assets of the
Company and the Subsidiaries, taken as a whole (such corporation or
Person, the "Surviving Entity"), shall be a corporation organized and
validly existing under the laws of the United States of America, any
political subdivision thereof or any state thereof or the District of
Columbia, and shall expressly assume, by a supplemental indenture, the
due and punctual payment of the principal of (and premium, if any) and
interest (including Special Interest, if any) on all the Notes and the
performance of the Company's covenants and obligations under the
Indenture;
(ii) immediately before and after giving effect to such
transaction or series of transactions on a pro forma basis (including,
without limitation, any Indebtedness incurred or anticipated to be
incurred in connection with or in respect of such transaction or series
of transactions), no Event of Default or Default shall have occurred
and be continuing or would result therefrom;
(iii) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of
transactions), the Company (or the Surviving Entity if the Company is
not continuing) shall have a Consolidated Net Worth equal to or greater
than the Consolidated Net Worth of the Company immediately prior to
such transactions; and
(iv) immediately after giving effect to any such transaction
or series of transactions on a pro forma basis as if such transaction
or series of transactions had occurred on the first day of the
Determination Period, the Company (or the Surviving Entity if the
Company is not continuing) would be permitted to incur $1.00 of
additional Indebtedness pursuant to the test described in the first
sentence under the caption "--Certain Covenants--Limitation on
Indebtedness."
The provision of clause (iv) shall not apply to any merger or
consolidation into or with, or any such transfer of all or substantially all of
the Property and assets of the Company and the Subsidiaries taken as a whole
into, the Company.
In connection with any consolidation, merger, continuance, transfer of
assets or other transactions contemplated by this provision, the Company shall
deliver, or cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and an opinion
of counsel, each stating that such consolidation, merger, continuance, sale,
assignment, conveyance, or transfer and the supplemental indenture in respect
thereto comply with the provisions of the Indenture and that all conditions
precedent in the Indenture relating to such transactions have been complied
with.
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Upon any transaction or series of transactions that are of the type
described in, and are effected in accordance with, the foregoing paragraphs, the
Surviving Entity shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under the Indenture and the Notes with the
same effect as if such Surviving Entity had been named as the Company in the
Indenture; and when a Surviving Person duly assumes all of the obligations and
covenants of the Company pursuant to the Indenture and the Notes, except in the
case of a lease, the predecessor Person shall be relieved of all such
obligations.
Events of Default
Each of the following is an "Event of Default" under the Indenture:
(a) default in the payment of interest on, or Special
Interest, if any, with respect to, any Note issued pursuant to the
Indenture when the same becomes due and payable, and the continuance of
such default for a period of 30 days;
(b) default in the payment of the principal of (or premium, if
any, on) any Note issued pursuant to the Indenture at its Maturity,
whether upon optional redemption, required repurchase (including
pursuant to a Change of Control Offer or an Asset Sale Offer) or
otherwise or the failure to make an offer to purchase any such Note as
required;
(c) the Company fails to comply with any of its covenants or
agreements contained in "--Change of Control," "--Certain
Covenants--Limitation on Restricted Payments," "--Certain
Covenants--Limitation on Asset Sales," "--Certain Covenants--Limitation
on Indebtedness," "--Certain Covenants--Limitation on Subsidiary
Indebtedness and Preferred Stock," "--Certain Covenants--Limitation on
Sale and Lease-Back Transactions" or "--Consolidation, Merger,
Conveyance, Lease or Transfer";
(d) default in the performance, or breach, of any covenant or
warranty of the Company in the Indenture (other than a covenant or
warranty addressed in clause (a), (b) or (c) above) and continuance of
such Default or breach for a period of 30 days after written notice
thereof has been given to the Company by the Trustee or to the Company
and the Trustee by holders of at least 25% of the aggregate principal
amount at Stated Maturity of the outstanding Notes;
(e) Indebtedness of the Company or any Subsidiary is not paid
when due within the applicable grace period, if any, or is accelerated
by the holders thereof and, in either case, the principal amount of
such unpaid or accelerated Indebtedness exceeds $10.0 million;
(f) the entry by a court of competent jurisdiction of one or
more final judgments against the Company or any Subsidiary in an
uninsured or unindemnified aggregate amount in excess of $5.0 million
which is not discharged, waived, appealed, stayed, bonded, or satisfied
for a period of 60 consecutive days;
(g) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under U.S.
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal, state, or foreign bankruptcy, insolvency, or other
similar law or (ii) a decree or order adjudging the Company or any
Significant Subsidiary a bankrupt or insolvent, or approving as
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properly filed a petition seeking reorganization, arrangement,
adjustment, or composition of or in respect of the Company or any
Significant Subsidiary under U.S. bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, state or foreign
bankruptcy, insolvency, or similar law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator, or other similar
official of the Company or any Significant Subsidiary or of any
substantial part of the Property or assets of the Company or any
Significant Subsidiary, or ordering the winding up or liquidation of
the affairs of the Company or any Significant Subsidiary, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days;
(h) (i) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under U.S. bankruptcy
laws, as now or hereafter constituted, or any other applicable Federal,
state or foreign bankruptcy, insolvency or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent; or
(ii) the consent by the Company or any Significant Subsidiary to the
entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under U.S.
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal, state, or foreign bankruptcy, insolvency or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against the Company or any Significant Subsidiary; or
(iii) the filing by the Company or any Significant Subsidiary of a
petition or answer or consent seeking reorganization or relief under
U.S. bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal, state or foreign bankruptcy, insolvency or other
similar law; or (iv) the consent by the Company or any Significant
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or of any substantial part of the Property or
assets of the Company or any Significant Subsidiary, or the making by
the Company or any Significant Subsidiary of an assignment for the
benefit of creditors; or (v) the admission by the Company or any
Significant Subsidiary in writing of its inability to pay its debts
generally as they become due; or (vi) the taking of corporate action by
the Company or any Significant Subsidiary in furtherance of any such
action; or
(i) any Guarantee shall for any reason cease to be, or be
asserted by the Company or any Guarantor, as applicable, not to be, in
full force and effect (except pursuant to the release of any such
Guarantee in accordance with the Indenture).
If any Event of Default (other than an Event of Default specified in
clause (g) or (h) above) occurs and is continuing, then and in every such case
the Trustee or the holders of not less than 25% of the outstanding aggregate
principal amount at Stated Maturity of the Notes, may declare the principal
amount at Stated Maturity, premium, if any, and any accrued and unpaid interest
on all such Notes then outstanding to be immediately due and payable by a notice
in writing to the Company (and to the Trustee if given by holders of such
Notes), and upon any such declaration all amounts payable in respect of the
Notes will become and be immediately due and payable. If any Event of Default
specified in clause (g) or (h) above occurs, the principal amount at Stated
Maturity, premium, if any, and any accrued and unpaid interest (including
Special Interest, if any) on the Notes then outstanding shall become immediately
due and payable without any declaration or other act on the part of the Trustee
or any holder of such Notes. In the event of a declaration of acceleration
because an Event of Default set forth in clause (e) above has occurred and is
continuing, such declaration of acceleration shall be automatically rescinded
and annulled if the event of default triggering such Event of Default pursuant
to clause (e) shall be
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remedied or cured or waived by the holders of the relevant Indebtedness within
30 days after such event of default; provided that no judgment or decree for the
payment of the money due on the Notes has been obtained by the Trustee as
provided in the Indenture. Under certain circumstances, the holders of a
majority in principal amount at Stated Maturity of the outstanding Notes by
notice to the Company and the Trustee may rescind an acceleration and its
consequences.
The holders of a majority in aggregate principal amount at Stated
Maturity of the Notes then outstanding by notice to the Trustee may on behalf of
the holders of all such Notes waive any existing Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest (including Special Interest, if any) on, premium, if any on
or the principal of, such Notes. Subject to the provisions of the Indenture
relating to the duties of the Trustee, the Trustee is under no obligation to
exercise any of its rights or powers under the Indenture at the request, order,
or direction of any of the holders, unless such holders have offered to such
Trustee reasonable security or indemnity. Subject to the provisions of the
Indenture and applicable law, the holders of a majority in aggregate principal
amount at Stated Maturity of the Notes at the time outstanding have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the
Trustee.
The Company is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Company is required within five
Business Days after becoming aware of any Default or Event of Default, to
deliver to the Trustee a statement describing such Default or Event of Default,
its status and what action the Company is taking or proposes to take with
respect thereto.
Amendment, Supplement and Waiver
The Company, the Guarantors, and the Trustee may, at any time and from
time to time, without notice to or consent of any holder, enter into one or more
indentures supplemental to the Indenture (a) to evidence the succession of
another Person to the Company and the Guarantors and the assumption by such
successor of the covenants and Obligations of the Company under the Indenture
and contained in the Notes and of the Guarantors contained in the Indenture and
the Guarantees, (b) to add to the covenants of the Company, for the benefit of
the holders, or to surrender any right or power conferred upon the Company or
the Guarantors by the Indenture, (c) to add any additional Events of Default,
(d) to provide for uncertificated Notes in addition to or in place of
certificated Notes, (e) to evidence and provide for the acceptance of
appointment under the Indenture by the successor Trustee, (f) to secure the
Notes and/or the Guarantees, (g) to cure any ambiguity, to correct or supplement
any provision in the Indenture which may be inconsistent with any other
provision therein or to add any other provisions with respect to matters or
questions arising under the Indenture, provided that such actions will not
adversely affect the interests of the holders in any material respect, (h) to
add or release any Guarantor pursuant to the terms of the Indenture, or (i) to
comply with the requirements of the Commission to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
With the consent of the holders of not less than a majority in
aggregate principal amount at Stated Maturity of the outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer
for the Notes), the Company, the Guarantors and the Trustee may enter into one
or more indentures supplemental to the Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of modifying in any manner the rights of the holders; provided
that no such supplemental indenture will, without the consent of the holder of
each outstanding Note affected thereby, (a) change the Stated Maturity of the
principal of, or any
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installment of interest on, any Note, or reduce the principal amount thereof (or
premium, if any), or the interest thereon that would be due and payable upon
Maturity thereof, or change the place of payment where, or the coin or currency
in which, any Note or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, (b) reduce the percentage in principal amount at Stated
Maturity of the outstanding Notes, the consent of whose Holders is necessary for
any such supplemental indenture or required for any waiver of compliance with
certain provisions of the Indenture, or certain Defaults thereunder, (c) modify
the Obligations of the Company to make offers to purchase Notes upon a Change of
Control or from the proceeds of Asset Sales, (d) subordinate in right of
payment, or otherwise subordinate, the Notes or the Guarantees to any other
Indebtedness, (e) amend, supplement, or otherwise modify the provisions of the
Indenture relating to Guarantees, or (f) modify any of the provisions of this
paragraph (except to increase any percentage set forth herein).
The holders of not less than a majority in aggregate principal amount
at Stated Maturity of the outstanding Notes may on behalf of the holders of all
the Notes waive any past Default or Event of Default under the Indenture and its
consequences, except a Default or Event of Default (a) in the payment of the
principal of (or premium, if any) or interest (including Special Interest, if
any) on any Note or (b) in respect of a covenant or provision hereof which under
the proviso to the prior paragraph cannot be modified or amended without the
consent of the Holder of each outstanding Note affected thereby.
Satisfaction and Discharge of the Indenture; Defeasance
The Company may terminate its obligations and the obligations of the
Guarantors under the Notes, the Indenture, and the Guarantees when (i) either
(A) all outstanding Notes have been delivered to the Trustee for cancellation or
(B) all such Notes not therefore delivered to the Trustee for cancellation have
become due and payable, will become due and payable within one year, or are to
be called for redemption within one year under irrevocable arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name and at the expense of the Company, and the Company has
irrevocably deposited or caused to be deposited with the Trustee funds in an
amount sufficient to pay and discharge the entire indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for principal of
(premium, if any, on) and interest (including Special Interest, if any) to the
date of deposit or Maturity or date of redemption; (ii) the Company has paid or
caused to be paid all sums then due and payable by the Company under the
Indenture; and (iii) the Company has delivered an Officers' Certificate and an
opinion of counsel relating to compliance with the conditions set forth in the
Indenture.
The Company, at its election, shall (a) be deemed to have paid and
discharged its debt on the Notes and the Indenture and Guarantees shall cease to
be of further effect as to all outstanding Notes (except as to (i) rights of
registration of transfer, substitution and exchange of Notes, (ii) the Company's
right of optional redemption, (iii) rights of holders to receive payments of
principal of, premium, if any, and interest on the Notes (but not the Change of
Control Purchase Price or the Asset Sale Offer Purchase Price) and any rights of
the holders with respect to such amounts, (iv) the rights, obligations and
immunities of the Trustee under the Indenture, and (v) certain other specified
provisions in the Indenture) or (b) cease to be under any obligation to comply
with certain restrictive covenants that are described in the Indenture, after
the irrevocable deposit by the Company with the Trustee, in trust for the
benefit of the holders, at any time prior to the Stated Maturity of the Notes,
of (A) money in an amount, (B) U.S. Government Obligations which through the
payment of interest and principal will provide, not later than one Business Day
before the due date of payment in respect of such Notes, money in an amount, or
(C) a
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combination thereof sufficient to pay and discharge the principal of, premium,
if any, on, and interest (including Special Interest, if any) on, such Notes
then outstanding on the dates on which any such payments are due in accordance
with the terms of the Indenture and of such Notes. Such defeasance or covenant
defeasance shall be deemed to occur only if certain conditions are satisfied,
including, among other things, delivery by the Company to the Trustee of an
opinion of outside counsel acceptable to the Trustee to the effect that (i) such
deposit, defeasance, and discharge will not be deemed, or result in, a taxable
event for federal income tax purposes with respect to the holders; and (ii) the
Company's deposit will not result in the trust or such Trustee being subject to
regulation under the Investment Company Act of 1940.
Additional Information
Anyone who receives this Prospectus may obtain a copy of the Indenture
or the Registration Rights Agreement without charge by writing to the Company at
2200 Eller Drive, P.O. Box 13038, Fort Lauderdale, Florida 33316.
Book-Entry, Delivery; Form and Transfer
The Notes sold to QIBs initially were in the form of one or more
registered global notes without interest coupons (collectively, the "U.S. Global
Notes"). Upon issuance, the U.S. Global Notes were deposited with the Trustee,
as custodian for DTC, in New York, New York, and registered in the name of DTC
or its nominee, in each case for credit to the accounts of DTC's Direct and
Indirect Participants (as defined below). The Notes sold in offshore
transactions in reliance on Regulation S initially were in the form of one or
more registered, global book-entry notes without interest coupons (the "Reg S
Global Notes"). The Reg S Global Notes were deposited with the Trustee, as
custodian for DTC, in New York, New York, and registered in the name of a
nominee of DTC (a "Nominee") for credit to the accounts of Indirect Participants
at Euroclear and CEDEL. During the 40-day period commencing on the day after the
later of the Offering Date and the original Issue Date (as defined) of the Notes
(the "40-Day Restricted Period"), beneficial interests in the Reg S Global Note
may be held only through Euroclear or CEDEL, and, pursuant to DTC's procedures,
Indirect Participants that hold a beneficial interest in the Reg S Global Note
will not be able to transfer such interest to a person that takes delivery
thereof in the form of an interest in the U.S. Global Notes. After the 40-Day
Restricted Period, (i) beneficial interests in the Reg S Global Notes may be
transferred to a person that takes delivery in the form of an interest in the
U.S. Global Notes and (ii) beneficial interests in the U.S. Global Notes may be
transferred to a person that takes delivery in the form of an interest in the
Reg S Global Notes, provided, in each case, that the certification requirements
described below are complied with. See "--Transfers of Interests in One Global
Note for Interests in Another Global Note." All registered global notes are
referred to herein collectively "Global Notes."
Beneficial interests in all Global Notes and all Certificated Notes (as
defined below) will be subject to the applicable rules and procedures of DTC and
its Direct or Indirect Participants (including, if applicable, those of
Euroclear and CEDEL), which may change from time to time.
The Global Notes may be transferred, in whole and not in part, only to
another nominee of DTC or to a successor of DTC or its nominee in certain
limited circumstances. Beneficial interests in the Global Notes may be exchanged
for Notes in certificated form in certain limited circumstances. See "--Transfer
of Interests in Global Notes for Certificated Notes."
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Initially, the Trustee is acting as Paying Agent and Registrar. The
Notes may be presented for registration of transfer and exchange at the offices
of the Registrar.
Depositary Procedures
DTC has advised Hvide that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Direct Participants") and to facilitate the clearance and settlement of
transactions in those securities between Direct Participants through electronic
book-entry changes in accounts of Participants. The Direct Participants include
securities brokers and dealers (including the Initial Purchasers), banks, trust
companies, clearing corporations and certain other organizations, including
Euroclear and CEDEL. Access to DTC's system is also available to other entities
that clear through or maintain a direct or indirect, custodial relationship with
a Direct Participant (collectively, the "Indirect Participants").
DTC has advised Hvide that, pursuant to DTC's procedures, (i) upon
deposit of the Global Notes, DTC credited the accounts of the Direct
Participants designated by the Initial Purchasers with portions of the principal
amount of the Global Notes allocated by the Initial Purchasers to such Direct
Participants, and (ii) DTC maintains records of the ownership interests of such
Direct Participants in the Global Notes and the transfer of ownership interests
by and between Direct Participants. DTC does not maintain records of the
ownership interests of, or the transfer of ownership interests by and between,
Indirect Participants or other owners of beneficial interests in the Global
Notes. Direct Participants and Indirect Participants must maintain their own
records of the ownership interests of, and the transfer of ownership interests
by and between, Indirect Participants and other owners of beneficial interests
in the Global Notes.
Investors in the U.S. Global Notes may hold their interests therein
directly through DTC if they are Direct Participants in DTC or indirectly
through organizations that are Direct Participants in DTC. Investors in the Reg
S Global Notes may hold their interests therein directly through Euroclear or
CEDEL or indirectly through organizations that are participants in Euroclear or
CEDEL. After the expiration of the 40-Day Restricted Period (but not earlier),
investors may hold interests in the Reg S Global Notes through organizations
other than Euroclear and CEDEL that are Direct Participants in DTC system.
Morgan Guaranty Trust Company of New York, Brussels office, is the operator and
depository of Euroclear and Citibank, N.A. is the operator and depository of
CEDEL (each a "Nominee" of Euroclear and CEDEL, respectively). Therefore, they
will each be recorded on DTC's records as the holders of all ownership interests
held by them on behalf of Euroclear and CEDEL, respectively. Euroclear and CEDEL
will maintain on their records the ownership interests, and transfer of
ownership interests by and between, their own customer's securities accounts.
DTC will not maintain records of the ownership interests of, or the transfer of
ownership interests by and between, customers of Euroclear or CEDEL. All
ownership interests in any Global Notes, including those of customers'
securities accounts held through Euroclear or CEDEL, may be subject to the
procedures and requirements of DTC.
The laws of some states in the United States require that certain
persons take physical delivery in definitive, certificated form, of securities
that they own. This limits or curtails the ability to transfer beneficial
interests in a Global Note to such persons. Because DTC can act only on behalf
of Direct Participants, which in turn act on behalf of Indirect Participants and
others, the ability of a person having a beneficial interest in a Global Note to
pledge such interest to persons or entities that are not Direct Participants in
DTC, or to otherwise take actions in respect of such interests, may be affected
by the lack
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of physical certificates evidencing such interests. For certain other
restrictions on the transferability of the Notes see "--Transfers of Interests
in Global Notes for Certificated Notes."
Except as described in "--Transfer of Interests in Global Notes for
Certificated Notes," owners of beneficial interests in the Global Notes did not
have Notes registered in their names, did not receive physical delivery of Notes
in certificated form and are not considered the registered owners or holders
thereof under the Indenture for any purpose.
Under the terms of the Indenture, Hvide, the Guarantors, and the
Trustee will treat the persons in whose names the Notes are registered
(including Notes represented by Global Notes) as the owners thereof for the
purpose of receiving payments and for any and all other purposes whatsoever.
Payments in respect of the principal, premium, Special Interest, if any, and
interest on Global Notes registered in the name of DTC or its nominee will be
payable by the Trustee to DTC or its nominee as the registered holder under the
Indenture. Consequently, neither Hvide, the Trustee, nor any agent of Hvide, or
the Trustee has or will have any responsibility or liability for (i) any aspect
of DTC's records or any Direct Participant's or Indirect Participant's records
relating to or payments made on account of beneficial ownership interests in the
Global Notes or for maintaining, supervising, or reviewing any of DTC's records
or any Direct Participant's or Indirect Participant's records relating to the
beneficial ownership interests in any Global Note or (ii) any other matter
relating to the actions and practices of DTC or any of its Direct Participants
or Indirect Participants.
DTC has advised Hvide that its current payment practice (for payments
of principal, interest, and the like) with respect to securities such as the
Notes is to credit the accounts of the relevant Direct Participants with such
payment on the payment date in amounts proportionate to such Direct
Participant's respective ownership interests in the Global Notes as shown on
DTC's records. Payments by Direct Participants and Indirect Participants to the
beneficial owners of the Notes will be governed by standing instructions and
customary practices between them and will not be the responsibility of DTC, the
Trustee, Hvide, or the Guarantors. Neither Hvide, the Guarantors, nor the
Trustee will be liable for any delay by DTC or its Direct Participants or
Indirect Participants in identifying the beneficial owners of the Notes and
Hvide and the Trustee may conclusively rely on and will be protected in relying
on instructions from DTC or its nominee as the registered owner of the Notes for
all purposes.
The Global Notes trade in DTC's Same-Day Funds Settlement System and,
therefore, transfers between Direct Participants in DTC will be effected in
accordance with DTC's procedures, and will be settled in immediately available
funds. Transfers between Indirect Participants (other than Indirect Participants
who hold an interest in the Notes through Euroclear or CEDEL) who hold an
interest through a Direct Participant will be effected in accordance with the
procedures of such Direct Participant but generally will settle in immediately
available funds. Transfers between and among Indirect Participants who hold
interests in the Notes through Euroclear and CEDEL will be effected in the
ordinary way in accordance with their respective rules and operating procedures.
Subject to compliance with the transfer restrictions applicable to the
Notes described herein, cross-market transfers between Direct Participants in
DTC, on the one hand, and Indirect Participants who hold interests in the Notes
through Euroclear or CEDEL, on the other hand, will be effected by Euroclear or
CEDEL's respective nominee through DTC in accordance with DTC's rules on behalf
of Euroclear or CEDEL; however, delivery of instructions relating to
cross-market transactions must be made directly to Euroclear or CEDEL, as the
case may be, by the counterparty in accordance with the rules and procedures of
Euroclear or CEDEL and within their established deadlines (Brussels time for
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Euroclear and UK time for CEDEL). Indirect Participants who hold interest in the
Notes through Euroclear and CEDEL may not deliver instructions directly to
Euroclear's or CEDEL's Nominee. Euroclear or CEDEL will, if the transaction
meets its settlement requirements, deliver instructions to its respective
Nominee to deliver or receive interests on Euroclear's or CEDEL's behalf in the
relevant Global Note in DTC, and make or receive payment in accordance with
normal procedures for same-day fund settlement applicable to DTC.
Because of time zone differences, the securities accounts of an
Indirect Participant who holds an interest in the Notes through Euroclear or
CEDEL purchasing an interest in a Global Note from a Direct Participant in DTC
will be credited, and any such crediting will be reported to Euroclear or CEDEL
during the European business day immediately following the settlement date of
DTC in New York. Although recorded in DTC's accounting records as of DTC's
settlement date in New York, Euroclear and CEDEL customers will not have access
to the cash amount credited to their accounts as a result of a sale of an
interest in a Reg S Global Note to a DTC Participant until the European business
day for Euroclear or CEDEL immediately following DTC's settlement date.
DTC advised the Company that it will take any action permitted to be
taken by a holder of Notes only at the direction of one or more Direct
Participants to whose accounts interests in the Global Notes are credited and
only in respect of such portion of the aggregate principal amount of the Notes
as to which such Direct Participant or Direct Participants has or have given
direction. However, if there is an Event of Default under the Notes, DTC
reserves the right to exchange Global Notes (without the direction of one or
more of its Direct Participants) for legended Notes in certificated form, and to
distribute such certificated forms of Notes to its Direct Participants. See
"--Transfers of Interests in Global Notes for Certificated Notes."
Although DTC, Euroclear, and CEDEL have agreed to the foregoing
procedures to facilitate transfers of interests in the Reg S Global Notes and in
the U.S. Global Notes among Direct Participants, Euroclear and CEDEL, they are
under no obligation to perform or to continue to perform such procedures, and
such procedures may be discontinued at any time. None of Hvide, the Guarantors,
the Initial Purchasers or the Trustee will have any responsibility for the
performance by DTC, Euroclear and CEDEL or their respective Direct and Indirect
Participants of their respective obligations under the rules and procedures
governing any of their operations.
The information in this section concerning DTC, Euroclear and CEDEL and
their book-entry systems has been obtained from sources that the Company
believes to be reliable, but the Company takes no responsibility for the
accuracy thereof.
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Transfers of Interests in One Global Note for Interests in Another Global Note
Prior to the expiration of the 40-Day Restricted Period, an Indirect
Participant who holds an interest in the Reg S Global Note through Euroclear and
CEDEL will not be permitted to transfer its interest to a U.S. Person who takes
delivery in the form of an interest in U.S. Global Notes. After the expiration
of the 40-Day Restricted Period, an Indirect Participant who holds an interest
in Reg S Global Notes will be permitted to transfer its interest to a U.S.
Person who takes delivery in the form of an interest in U.S. Global Notes only
upon receipt by the Trustee of a written certification from the transferor to
the effect that such transfer is being made in accordance with the restrictions
on transfer set forth under "Notice to Investors" and set forth in the legend
printed on the Reg S Global Notes.
Prior to the expiration of the 40-Day Restricted Period, Direct and
Indirect Participants who hold an interest in a U.S. Global Note will not be
permitted to transfer their interests to any person that takes delivery thereof
in the form of an interest in the Reg S Global Notes. After the expiration of
the 40-Day Restricted Period, a Direct or Indirect Participant who holds an
interest in U.S. Global Notes may transfer its interests to a person who takes
delivery in the form of an interest in Reg S Global Notes only upon receipt by
the Trustee of a written certification from the transferor to the effect that
such transfer is being made in accordance with Rule 904 of Regulation S.
Transfers involving an exchange of a beneficial interest in Reg S
Global Notes for a beneficial interest in U.S. Global Notes or vice versa will
be effected by DTC by means of an instruction originated by the Trustee through
DTC/Deposit Withdraw at Custodian (DWAC) system. Accordingly, in connection with
such transfer, appropriate adjustments will be made to reflect a decrease in the
principal amount of the one Global Note and a corresponding increase in the
principal amount of the other Global Note, as applicable. Any beneficial
interest in the one Global Note that is transferred to a person who takes
delivery in the form of the other Global Note will, upon transfer, cease to be
an interest in such first Global Note and become an interest in such other
Global Note and, accordingly, will thereafter be subject to all transfer
restrictions and other procedures applicable to beneficial interests in such
other Global Note for as long as it remains such an interest.
Transfers of Interests in Global Notes for Certificated Notes
An entire Global Note may be exchanged for definitive Notes in
registered, certificated form without interest coupons ("Certificated Notes") if
(i) DTC (x) notifies Hvide that it is unwilling or unable to continue as
depositary for the Global Notes and Hvide thereupon fails to appoint a successor
depositary within 90 days or (y) has ceased to be a clearing agency registered
under the Exchange Act, (ii) Hvide, at its option, notifies the Trustee in
writing that it elects to cause the issuance of Certificated Notes or (iii)
there shall have occurred and be continuing a Default or an Event of Default
with respect to the Notes. In any such case, Hvide will notify the Trustee in
writing that, upon surrender by the Direct and Indirect Participants of their
interest in such Global Note, Certificated Notes will be issued to each person
that such Direct and Indirect Participants and DTC identify as being the
beneficial owner of the related Notes.
Beneficial interests in Global Notes held by any Direct or Indirect
Participant may be exchanged for Certificated Notes upon request to DTC, by such
Direct Participant (for itself or on behalf of an Indirect Participant), to the
Trustee in accordance with customary DTC procedures. Certificated Notes
delivered in exchange for any beneficial interest in any Global Note will be
registered in the names, and
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issued in any approved denominations, requested by DTC on behalf of such Direct
and Indirect Participants (in accordance with DTC's customary procedures).
In all cases described herein, such Certificated Notes will bear the
restrictive legend referred to in "Notice to Investors," unless the Company
determines otherwise in compliance with applicable law.
Neither Hvide, the Guarantors, nor the Trustee will be liable for any
delay by the holder of the Global Notes or DTC in identifying the beneficial
owners of Notes, and Hvide, the Guarantors and the Trustee may conclusively rely
on, and will be protected in relying on, instructions from the holder of the
Global Note or DTC for all purposes.
Transfers of Certificated Notes for Interests in Global Notes
A Certificated Note may only be transferred if the transferor first
delivers to the Trustee a written certificate (and in certain circumstances, an
opinion of counsel) confirming that, in connection with such transfers, it has
complied with all restrictions on transfer applicable to such Certificated Note.
Same Day Settlement and Payment
The Indenture requires that payments in respect of the Notes
represented by the Global Notes (including principal, premium, if any, interest
and Special Interest, if any) be made by wire transfer of immediately available
same day funds to the accounts specified by the holder of interests in such
Global Note. With respect to Certificated Notes, Hvide will make all payments of
principal, premium, if any, interest and Special Interest, if any, by wire
transfer of immediately available same day funds to the accounts specified by
the holders thereof or, if no such account is specified, by mailing a check to
each such holder's registered address. Hvide expects that secondary trading in
the Certificated Notes will also be settled in immediately available funds.
Exchange Offer; Registration Rights
In the event that applicable interpretations of the staff of the
Commission do not permit the Company to effect the Exchange Offer, or if for any
other reason the Exchange Offer is not consummated within 120 days of the date
of the Registration Rights Agreement, or if the Initial Purchasers so request
with respect to Old Notes not eligible to be exchanged for New Notes in the
Exchange Offer, or if any holder of Old Notes is not eligible to participate in
the Exchange Offer or does not receive freely tradable New Notes in the Exchange
Offer, the Company will, at its cost, (a) as promptly as practicable, file a
Shelf Registration Statement covering resales of the Old Notes or the New Notes,
as the case may be, (b) use its best efforts to cause the Shelf Registration
Statement to be declared effective under the Securities Act and (c) keep the
Shelf Registration Statement effective until the earlier of (i) the time when
the Old Notes covered by the Shelf Registration Statement can be sold pursuant
to Rule 144 without any limitations under clauses (c), (e), (f) and (h) of Rule
144 and (ii) two years from the date the Old Notes were issued. The Company
will, in the event a Shelf Registration Statement is filed, among other things,
provide to each holder for whom such Shelf Registration Statement was filed
copies of the prospectus which is a part of the Shelf Registration Statement,
notify each such holder when the Shelf Registration Statement has become
effective and take certain other actions as are required to permit unrestricted
resales of the Old Notes or the New Notes, as the case may be. A holder selling
such Old Notes or New Notes pursuant to the Shelf Registration Statement
generally would be required to be named as a selling security holder in the
related prospectus and to deliver a prospectus to purchasers, will be subject to
certain of
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the civil liability provisions under the Securities Act in connection with such
sales and will be bound by the provisions of the Registration Rights Agreement
which are applicable to such holder (including certain indemnification
obligations).
Certain Definitions
Set forth below is a summary of certain of the defined terms used in
the Indenture. Reference is made to the Indenture for the full definition of all
such terms, as well as any capitalized terms used herein for which no definition
is provided.
"Acquired Indebtedness" means, with respect to any specified Person,
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other
Person merging with or into or becoming a subsidiary of such specified Person,
but excluding Indebtedness which is extinguished, retired, or repaid in
connection with such other Person merging with or into or becoming a subsidiary
of such specified Person.
"Adjusted Net Assets" of a Guarantor at any date shall mean the amount
by which the fair value of the Property and other assets of such Guarantor
exceeds the total amount of liabilities, including, without limitation,
contingent liabilities (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date), but excluding liabilities under
the Guarantee of such Guarantor.
"Affiliate" of any specified Person means another Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by,"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that beneficial ownership of 10% or more of the Voting Stock of a Person shall
be deemed to be control.
"Asset Sale" means any direct or indirect sale, conveyance, transfer,
lease, or other disposition (including, without limitation, by way of merger or
consolidation or by means of a Sale and Lease-Back Transaction) by the Company
or any Subsidiary to any Person other than the Company or a Subsidiary, in one
transaction, or a series of related transactions, of (i) any Capital Stock of
any Subsidiary (except for directors' qualifying shares or certain minority
interests sold to other Persons solely due to local law requirements that there
be more than one stockholder, but which are not in excess of what is required
for such purpose), or (ii) any other Property or assets of the Company or any
Subsidiary, other than (A) sales of obsolete or worn out equipment in the
ordinary course of business or other assets that, in the Company's reasonable
judgment, are no longer used or useful in the conduct of the business of the
Company and its Subsidiaries), (B) any charter (bareboat or otherwise) or other
lease of Property or other assets entered into by the Company or any Subsidiary
in the ordinary course of business, other than any Bargain Purchase Contract,
(C) a Restricted Payment or Restricted Investment permitted under "--Certain
Covenants--Limitation on Restricted Payments," (D) a Change of Control, and (E)
a consolidation, merger, continuance, or the disposition of all or substantially
all of the assets of the Company and the Subsidiaries, taken as a whole in
compliance with the provision of the Indenture described in "--Consolidation,
Merger, Conveyance, Lease, or Transfer." An Asset Sale shall include the
requisition
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of title to, seizure of, or forfeiture of any Property or assets, or any actual
or constructive total loss or an agreed or compromised total loss of any
Property or assets.
"Attributable Indebtedness" in respect of a Sale and Lease-Back
Transaction means, at any date of determination, the present value (discounted
at the interest rate borne by the Notes, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease (or to the first date on which the lessee is permitted to terminate such
lease without the payment of a penalty) included in such Sale and Lease-Back
Transaction (including any period for which such lease has been extended).
"Average Life" means, as of any date, with respect to any debt
security, the quotient obtained by dividing (i) the sum of the products of (x)
the number of years from such date to the date of each scheduled principal
payment (including any sinking fund or mandatory redemption payment
requirements) of such debt security multiplied in each case by (y) the amount of
such principal payment by (ii) the sum of all such principal payments.
"Bargain Purchase Contract" means a charter or lease that provides for
acquisition of the Property subject thereto by the other party to such agreement
during or at the end of the term thereof for less than the Fair Market Value
thereof at the time such right to acquire such Property is granted.
"Board of Directors" of any Person means the Board of Directors of such
Person, or any authorized committee of such Board of Directors.
"Board Resolution" means a duly authorized resolution of the Board of
Directors in full force and effect of the terms of determination and certified
as such.
"Capital Lease Obligation" means, at any time as to any Person with
respect to any Property leased by such Person as lessee, the amount of the
liability with respect to such lease that would be required at such time to be
capitalized and accounted for as a capital lease on the balance sheet of such
Person prepared in accordance with GAAP.
"Capital Stock" in any Person means any and all shares, interests,
partnership interests, participations, or other equivalents in the equity
interest (however designated) in such Person and any rights (other than debt
securities convertible into an equity interest), warrants or options to acquire
any equity interest in such Person.
"Cash Proceeds" means, with respect to any Asset Sale by any Person,
the aggregate consideration received for such Asset Sale by such Person in the
form of cash or cash equivalents (including any amounts of insurance or other
proceeds received in connection with an Asset Sale of the type described in the
last sentence of the definition thereof or marketable securities that are
converted into cash or cash equivalents within 30 days of an Asset Sale),
including payments in respect of deferred payment obligations when received in
the form of cash or cash equivalents (except to the extent that such obligations
are financed or sold with recourse to such Person or any subsidiary thereof).
"Change of Control" means (i) a determination by the Company that any
Person or group (as defined in Section 13(d)(3) or 14(d)(2) of the Exchange Act)
has become the direct or beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of more than 50% of the voting power of the
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outstanding Voting Stock of the Company other than Permitted Holders; (ii) the
Company is merged with or into or consolidated with another corporation and,
immediately after giving effect to the merger or consolidation, less than 50% of
the outstanding voting securities entitled to vote generally in the election of
directors or persons who serve similar functions of the surviving or resulting
entity are then beneficially owned (within the meaning of Rule 13d-3 of the
Exchange Act) in the aggregate by (x) the stockholders of the Company
immediately prior to such merger or consolidation, or (y) if the record date has
been set to determine the stockholders of the Company entitled to vote on such
merger or consolidation, the stockholders of the Company as of such a record
date; (iii) the Company, either individually or in conjunction with one or more
Subsidiaries, sells, conveys, transfers, or leases, or the Subsidiaries sell,
convey, transfer, or lease, all or substantially all of the assets of the
Company or the Company and the Subsidiaries, taken as a whole (either in one
transaction or a series of related transactions), including Capital Stock of the
Subsidiaries, to any Person (other than a Wholly Owned Subsidiary); (iv) the
liquidation or dissolution of the Company; or (v) the first day on which a
majority of the individuals who constitute the Board of Directors of the Company
are not Continuing Directors.
"Consolidated Interest Coverage Ratio" means as of the date of the
transaction giving rise to the need to calculate the Consolidated Interest
Coverage Ratio (the "Transaction Date"), the ratio of (a) the aggregate amount
of EBITDA of the Company and its consolidated Subsidiaries for the four fiscal
quarters for which financial information in respect thereof is available
immediately prior to the applicable Transaction Date (the "Determination
Period") to (b) the aggregate Consolidated Interest Expense of the Company and
its consolidated Subsidiaries that is anticipated to accrue during a period
consisting of the fiscal quarter in which the Transaction Date occurs and the
three fiscal quarters immediately subsequent thereto (based upon the pro forma
amount and maturity of, and interest payments in respect of, Indebtedness of the
Company and its consolidated Subsidiaries expected by the Company to be
outstanding on the Transaction Date), assuming for the purposes of this
measurement the continuation of market interest rates prevailing on the
Transaction Date and base interest rates in respect of floating interest rate
obligations equal to the base interest rates on such obligations in effect as of
the Transaction Date; provided that if the Company or any of its consolidated
Subsidiaries is a party to any Interest Swap Obligation that would have the
effect of changing the interest rate on any Indebtedness of the Company or any
of its consolidated Subsidiaries for such four-quarter period (or a portion
thereof), the resulting rate shall be used for such four-quarter period or
portion thereof; provided, further, that any Consolidated Interest Expense of
the Company with respect to Indebtedness incurred or retired by the Company or
any of its Subsidiaries during the fiscal quarter in which the Transaction Date
occurs shall be calculated as if such Indebtedness was incurred or retired on
the first day of the fiscal quarter in which the Transaction Date occurs; and
provided, further, that if the transaction giving rise to the need to calculate
the Consolidated Interest Coverage Ratio would have the effect of increasing or
decreasing EBITDA in the future and if such increase or decrease is readily
quantifiable and is attributable to such transaction, EBITDA shall be calculated
on a pro forma basis as if such transaction had occurred on the first day of the
Determination Period, and if, during the Determination Period (x) the Company or
any of its consolidated Subsidiaries shall have engaged in any Asset Sale,
EBITDA for such period shall be reduced by an amount equal to the EBITDA (if
positive), or increased by an amount equal to the EBITDA (if negative), directly
attributable to the assets which are the subject of such Asset Sale for such
period calculated on a pro forma basis as if such Asset Sale and any related
retirement of Indebtedness had occurred on the first day of such period or (y)
after the Issue Date, the Company or any of its consolidated Subsidiaries shall
have acquired any material assets other than in the ordinary course of business,
EBITDA and Consolidated Interest Expense shall be calculated on a pro forma
basis as if such acquisition had occurred on the first day of such period.
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"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication (A) the sum of (i) the aggregate amount of cash
and noncash interest expense (including capitalized interest) of such Person and
its subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP in respect of Indebtedness (including, without limitation,
(v) any amortization of debt discount, (w) net costs associated with Interest
Swap Obligations (including any amortization of discounts), (x) the interest
portion of any deferred payment obligation calculated in accordance with the
effective interest method, (y) all accrued interest, and (z) all commissions,
discounts, and other fees and charges owed with respect to letters of credit,
bankers acceptances, or similar facilities) paid or accrued, or scheduled to be
paid or accrued, during such period; (ii) dividends on Preferred Stock or
Redeemable Stock of such Person (and Preferred Stock or Redeemable Stock of its
subsidiaries if paid to a Person other than such Person or its subsidiaries)
declared and payable in cash; (iii) the portion of any rental obligation of such
Person or its subsidiaries in respect of any Capital Lease Obligation allocable
to interest expense in accordance with GAAP; (iv) the portion of any rental
obligation of such Person or its subsidiaries in respect of any Sale and
Lease-Back Transaction allocable to interest expense (determined as if such were
treated as a Capital Lease Obligation); and (v) to the extent any debt of any
other Person is guaranteed by such Person or any of its subsidiaries, the
aggregate amount of interest paid, accrued, or scheduled to be paid or accrued,
by such other Person during such period attributable to any such debt, less (B)
to the extent included in (A) above, amortization or write-off of deferred
financing costs of such Person and its subsidiaries during such period and any
charge related or any premium or penalty paid in connection with redeeming or
retiring any Indebtedness of such Person and its subsidiaries prior to its
stated maturity; in the case of both (A) and (B) above, after elimination of
intercompany accounts among such Person and its subsidiaries and as determined
in accordance with GAAP. For purposes of clause (ii) above, dividend
requirements attributable to any Preferred Stock or Redeemable Stock shall be
deemed to be an amount equal to the amount of dividend requirements on such
Preferred Stock or Redeemable Stock times a fraction, the numerator of which is
one, and the denominator of which is one minus the applicable combined federal,
state, local and foreign income tax rate of the Company and its Subsidiaries
(expressed as a decimal), on a consolidated basis, for the fiscal year
immediately preceding the date of the transaction giving rise to the need to
calculate Consolidated Interest Expense.
"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or net loss, as the case may be) of such Person and its
subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP, provided that there shall be excluded therefrom, without duplication,
(i) any net income of any Unrestricted Subsidiary, except that the Company's or
any Subsidiary's interest in the net income of such Unrestricted Subsidiary for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash or cash equivalents actually distributed by such
Unrestricted Subsidiary during such period to the Company or a Subsidiary as a
dividend or other distribution, (ii) gains and losses, net of taxes, from Asset
Sales or reserves relating thereto, (iii) the net income of any Person that is
not a subsidiary or that is accounted for by the equity method of accounting
which shall be included only to the extent of the amount of dividends or
distributions paid to such Person or its subsidiaries, (iv) items (but not loss
items) classified as extraordinary, unusual, or nonrecurring (other than the tax
benefit, if any, of the utilization of net operating loss carryforwards or
alternative minimum tax credits), (v) the net income (but not net loss) of any
Person acquired by such specified Person or any of its subsidiaries in a
pooling-of-interests transaction for any period prior to the date of such
acquisition, (vi) any gain or loss, net of taxes, realized on the termination of
any employee pension benefit plan, (vii) the net income (but not net loss) of
any subsidiary of such specified Person to the extent that the transfer to that
Person of that income is not at the time permitted, directly or indirectly, by
any means (including by dividend, distribution, advance or
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loan, or otherwise), or by operation of the terms of its charter or any
agreement with a Person other than with such specified Person, instrument held
by a Person other than by such specified Person, judgment, decree, order,
statute, law, rule, or governmental regulations applicable to such subsidiary or
its stockholders, except for any dividends or distributions actually paid by
such subsidiary to such Person, and (viii) with regard to a non-Wholly Owned
Subsidiary, any aggregate net income (or loss) in excess of such Person's or
such subsidiary's pro rata share of such non-Wholly Owned Subsidiary's net
income (or loss).
"Consolidated Net Worth" of any Person means, as of any date, the sum
of the Capital Stock and additional paid-in capital plus retained earnings (or
minus accumulated deficit) of such Person and its subsidiaries on a consolidated
basis at such date, each item determined in accordance with GAAP, less amounts
attributable to Redeemable Stock of such Person or any of its subsidiaries.
"Continuing Director" means an individual who (i) is a member of the
Board of Directors of the Company and (ii) either (A) was a member of the Board
of Directors of the Company on the Issue Date or (B) whose nomination for
election or election to the Board of Directors of the Company was approved by
vote of at least a majority of the directors then still in office who were
either directors on the Issue Date or whose election or nomination for election
was previously so approved.
"Currency Hedge Obligations" means, at any time as to any Person, the
obligations of such Person at such time which were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or future contract or other similar agreement or arrangement designed to protect
against or manage such Person's or any of its subsidiaries' exposure to
fluctuations in foreign currency exchange rates.
"Debenture Indenture" means that certain Indenture dated as of June 27,
1997, between the Company and the trustee named therein relating to $118.5
million aggregate principal amount of Debentures, as such may be amended,
supplemented or modified from time to time.
"Debentures" means the 6 1/2% Convertible Subordinated Debentures due
June 15, 2012 issued pursuant to the Debenture Indenture.
"Default" means any event, act, or condition the occurrence of which
is, or after notice or the passage time or both would be, an Event of Default.
"Determination Period" has the meaning specified in clause (a) of the
definition of "Consolidated Interest Coverage Ratio."
"EBITDA" means, with respect to any Person for any period, the
Consolidated Net Income of such Person for such period, plus to the extent
reflected in the income statement of such Person for such period from which
Consolidated Net Income is determined, without duplication, (i) Consolidated
Interest Expense, (ii) income tax expense, (iii) depreciation expense, (iv)
amortization expense, (v) any charge related to any premium or penalty paid in
connection with redeeming or retiring any Indebtedness prior to its stated
maturity, and (vi) any other non-cash charges minus, to the extent reflected in
such income statement, any noncash credits that had the effect of increasing
Consolidated Net Income of such Person for such period.
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"Fair Market Value" means, with respect to consideration received or to
be received pursuant to any transaction by any Person, the fair market value of
such consideration as determined in good faith by the Board of Directors of the
Company.
"Fair Value" means, with respect to any asset or Property, the price
which could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction.
"GAAP" means, at any date, United States generally accepted accounting
principles, consistently applied, as set forth in the opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
("AICPA") and statements of the Financial Accounting Standards Board, or in such
other statements by such other entity as may be designated by the AICPA, that
are applicable to the circumstances as of the date of determination; provided,
however, that all calculations made for purposes of determining compliance with
the provisions set forth in the Indenture shall utilize GAAP in effect at the
Issue Date.
"Guarantee" means any guarantee of the Notes by any Guarantor in
accordance with the provisions described under "--Guarantees of Notes."
"Guarantor" means the Initial Guarantors and each other future
Subsidiary of the Company that is required to guarantee the Company's
Obligations under the Notes and the Indenture as described in "--Guarantees of
Notes" and any other Subsidiary of the Company that executes a supplemental
indenture in which such Subsidiary agrees to guarantee the Company's Obligations
under the Notes and the Indenture.
"Incur" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, suffer to exist, incur (by conversion, exchange or
otherwise), assume, guarantee, or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to GAAP
or otherwise, of any such Indebtedness or obligation on the balance sheet of
such Person (and "incurrence," "incurred," "incurrable," and "incurring" shall
have meanings correlative to the foregoing); provided that a change in GAAP that
results in an obligation of such Person that exists at such time becoming
Indebtedness shall not be deemed an incurrence of such Indebtedness.
Indebtedness otherwise incurred by a Person before it becomes a Subsidiary shall
be deemed to have been incurred at the time at which it becomes a Subsidiary. A
guarantee otherwise permitted by the Indenture to be incurred by the Company or
a Subsidiary of the Company of Indebtedness incurred in compliance with the
terms of the Indenture by the Company or a Subsidiary of the Company, as
applicable, shall not constitute a separate incurrence of Indebtedness.
"Indebtedness" as applied to any Person means, at any time, without
duplication, whether recourse is to all or a portion of the assets of such
Person, and whether or not contingent, (i) any obligation of such Person for
borrowed money; (ii) any obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including, without limitation,
any such obligations incurred in connection with acquisition of Property, assets
or businesses, excluding accounts payable made in the ordinary course of
business which are not more than 90 days overdue or which are being contested in
good faith and by appropriate proceedings; (iii) any obligation of such Person
for all or any part of the purchase price of Property or assets or for the cost
of Property constructed or of improvements thereto (including any obligation
under or in connection with any letter of credit related thereto), other than
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accounts payable incurred in respect of Property and services purchased in the
ordinary course of business which are no more than 90 days overdue or which are
being contested in good faith and by appropriate proceedings; (iv) any
obligation of such Person upon which interest charges are customarily paid
(other than accounts payable incurred in the ordinary course of business); (v)
any obligation of such Person under conditional sale or other title retention
agreements relating to purchased Property; (vi) any obligation of such Person
issued or assumed as the deferred purchase price of Property or assets (other
than accounts payable incurred in the ordinary course of business which are no
more than 90 days overdue or which are being contested in good faith and by
appropriate proceedings); (vii) any Capital Lease Obligation or Attributable
Indebtedness pursuant to any Sale and Lease-Back Transaction of such Person;
(viii) any obligation of any other Person secured by (or for which the obligee
thereof has an existing right, contingent or otherwise, to be secured by) any
Lien on Property owned or acquired, whether or not any obligation secured
thereby has been assumed, by such Person; (ix) any obligation of such Person in
respect of any letter of credit supporting any obligation of any other Person;
(x) the maximum fixed repurchase price of any Redeemable Stock of such Person
(or if such Person is a subsidiary, any Preferred Stock of such Person); (xi)
the notional amount of any Interest Swap Obligation or Currency Hedge Obligation
of such Person at the time of determination; and (xii) any obligation which is
in economic effect a guarantee, regardless of its characterization (other than
an endorsement in the ordinary course of business), with respect to any
Indebtedness of another Person, to the extent guaranteed. For purposes of the
preceding sentence, the maximum fixed repurchase price of any Redeemable Stock
or subsidiary Preferred Stock that does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Redeemable Stock or
subsidiary Preferred Stock as if such Redeemable Stock or subsidiary Preferred
Stock were repurchased on any date on which Indebtedness shall be required to be
determined pursuant to the Indenture; provided that if such Redeemable Stock or
subsidiary Preferred Stock is not then permitted to be repurchased, the
repurchase price shall be the book value of such Redeemable Stock or subsidiary
Preferred Stock. The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability of any guarantees at such date;
provided, further, that for purposes of calculating the amount of any
non-interest bearing or other discount security, such Indebtedness shall be
deemed to be the principal amount thereof that would be shown on the balance
sheet of the issuer dated such date prepared in accordance with GAAP but that
such security shall be deemed to have been incurred only on the date of the
original issuance thereof.
"Initial Guarantors" means all of the Company's subsidiaries except Seabulk
Offshore Chartering, Inc., Hvide Capital Trust, Hvide Aker Holdings, L.L.C.,
Hvide Aker CAHT 1, L.L.C. and Hvide Aker Chartering 1, L.L.C.
"Interest Swap Obligation" means, with respect to any Person, the
obligation of such Person pursuant to any interest rate swap agreement, interest
rate cap, collar or floor agreement or other similar agreement or arrangement
designed to protect against or manage such Person's or any of its subsidiaries'
exposure to fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct, indirect,
or contingent investment in another Person, whether by means of a share
purchase, capital contribution, loan, advance (other than advances to employees
for moving and travel expenses, drawing accounts, and similar expenditures in
the ordinary course of business), or similar credit extension constituting
Indebtedness of such other Person, and any guarantee of Indebtedness of any
other Person; provided that the term "Investment" shall not include any
transaction involving the purchase or other acquisition (including by way of
merger) of
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Property or assets (including Capital Stock) by the Company or any Subsidiary in
exchange for Capital Stock (other than Redeemable Stock) of the Company. The
amount of any Person's Investment shall be the original cost of such Investment
to such Person, plus the cost of all additions thereto paid by such Person, and
minus the amount of any portion of such Investment repaid to such Person in cash
as a repayment of principal or a return of capital, as the case may be, but
without any other adjustments for increases or decreases in value, or write-ups,
writedowns, or write-offs with respect to such Investment. In determining the
amount of any Investment involving a transfer of any Property or assets other
than cash, such Property or assets shall be valued at its Fair Value at the time
of such transfer as determined in good faith by the board of directors (or
comparable body) of the Person making such transfer. The Company shall be deemed
to make an "Investment" in the amount of the Fair Value of the Property and
assets of a Subsidiary at the time such Subsidiary is designated an Unrestricted
Subsidiary.
"Issue Date" means the date on which the Notes are first authenticated
and delivered under the Indenture.
"Joint Venture" means any Person (other than a Subsidiary) designated
as such by a resolution of the Board of Directors of the Company and as to which
(i) the Company, any Subsidiary, or any Joint Venture owns less than 50% of the
Capital Stock of such Person; (ii) no more than ten unaffiliated Persons own of
record any Capital Stock of such Person; (iii) at all times, each such Person
owns the same proportion of each class of Capital Stock of such Person
outstanding at such time; (iv) no Indebtedness of such Person is or becomes
outstanding other than Non-Recourse Indebtedness; (v) there exist no consensual
encumbrances or restrictions on the ability of such Person to (x) pay, directly
or indirectly, dividends or make any other distributions in respect of its
Capital Stock to the holders of its Capital Stock or (y) pay any Indebtedness or
other obligation owed to the holders of its Capital Stock or (z) make any
Investment in the holders of its Capital Stock, in each case other than the
types of consensual encumbrances or restrictions that would be permitted by the
"Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries"
covenant if such Person were a Subsidiary; and (vi) the business engaged in by
such Person is a Related Business.
"Lien" means any mortgage, pledge, hypothecation, charge, assignment,
deposit arrangement, encumbrance, security interest, lien (statutory or other),
or preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
agreement to give or grant a Lien or any lease, conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Maturity" means the date on which the principal of a Note becomes due
and payable as provided therein or in the Indenture, whether at the Stated
Maturity or the Change of Control Payment Date or purchase date established
pursuant to the terms of the Indenture for an Asset Sale Offer or by declaration
of acceleration, call for redemption or otherwise.
"Net Available Proceeds" means, as to any Asset Sale, the Cash Proceeds
therefrom, net of all legal and title expenses, commissions and other fees and
expenses incurred, and all Federal, state, foreign, recording and local taxes
payable, as a consequence of such Asset Sale, net of all payments made to any
Person other than the Company or a Subsidiary on any Indebtedness which is
secured by such assets, in accordance with the terms of any Lien upon or with
respect to such assets, or which must by its terms, or in order to obtain a
necessary consent to such Asset Sale, or by applicable law, be repaid out of the
proceeds from such Asset Sale and, as for any Asset Sale by a Subsidiary, net of
the equity
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interest in such Cash Proceeds of any holder of Capital Stock of such Subsidiary
(other than the Company, any other Subsidiary or any Affiliate of the Company or
any such other Subsidiary).
"Non-Recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of an Unrestricted Subsidiary as to which (a) neither the Company
nor any other Subsidiary (other than an Unrestricted Subsidiary) (i) provides
credit support including any undertaking, agreement or instrument which would
constitute Indebtedness or (ii) is directly or indirectly liable for such
Indebtedness and (b) no default with respect to such Indebtedness (including any
rights which the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or its other Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Obligations" means, with respect to any Indebtedness, any obligation
thereunder, including, without limitation, principal, premium, and interest
(including post petition interest thereon), penalties, fees, costs, expenses,
indemnifications, reimbursements, damages, and other liabilities.
"Obligors" means the Company and the Guarantors, collectively;
"Obligor" means the Company or any Guarantor.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President, the Chief Executive
Officer, a Vice President, and by the Chief Financial Officer, the Chief
Accounting Officer, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company or a Subsidiary and delivered to the Trustee,
which shall comply with the Indenture.
"Permitted Holders" means J. Erik Hvide and any person related to him
by kinship or marriage, trusts or similar arrangements established solely on the
behalf of one or more of them, and partnerships and other entities that are
controlled by them.
"Permitted Indebtedness" means (a) Indebtedness of the Company under
the Notes; (b) Indebtedness (and any guarantee thereof) under one or more credit
or revolving credit facilities with a bank or syndicate of banks or financial
institutions, including the Credit Facility, as such may be amended, modified,
revised, extended, replaced, or refunded from time to time, in an aggregate
principal amount at any one time outstanding not to exceed $175.0 million, less
any amounts derived from Asset Sales and applied to the required permanent
reduction of Senior Debt (and a permanent reduction of the related commitment to
lend or amount available to be reborrowed in the case of a revolving credit
facility) under such credit facilities as contemplated by the "Limitation on
Asset Sales" covenant; (c) Indebtedness of the Company or any Subsidiary under
Interest Swap Obligations, provided that (i) such Interest Swap Obligations are
related to payment obligations on Indebtedness otherwise permitted under the
covenants described in "--Certain Covenants--Limitation on Indebtedness" and
(ii) the notional principal amount of such Interest Swap Obligations does not
exceed the principal amount of the Indebtedness to which such Interest Swap
Obligations relate; (d) Indebtedness of the Company or any Subsidiary under
Currency Hedge Obligations, provided that (i) such Currency Hedge Obligations
are related to payment obligations on Indebtedness otherwise permitted under the
covenants described in "--Certain Covenants--Limitation on Indebtedness" or to
the foreign currency cash flows reasonably expected to be generated by the
Company and the Subsidiaries and (ii) the notional principal amount of such
Currency Hedge Obligations does not exceed the principal amount of the
Indebtedness and the amount of the foreign currency cash flows to which such
Currency Hedge Obligations relate; (e) Indebtedness of the Company or any
Subsidiary outstanding on the Issue Date including Indebtedness under the
Debentures, the Debenture Indenture and the Trust Preferred Securities
Guarantee; (f) the
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Guarantees of the Notes (and any assumption of the Obligations guaranteed
thereby); (g) Indebtedness of the Company or any Subsidiary in respect of bid
performance bonds, surety bonds, appeal bonds and letters of credit or similar
arrangements issued for the account of the Company or any Subsidiary, in each
case in the ordinary course of business and other than for an obligation for
money borrowed; (h) Indebtedness of the Company to a Subsidiary and Indebtedness
of a Subsidiary to the Company or another Subsidiary; provided that upon any
subsequent event which results in any such Subsidiary ceasing to be a Subsidiary
or any other subsequent transfer of any such Indebtedness (except to the Company
or a Subsidiary), such Indebtedness shall be deemed, in each case, to be
incurred and shall be treated as an incurrence for purposes of the "Limitation
on Indebtedness" covenants at the time the Subsidiary in question ceased to be a
Subsidiary or on which such subsequent transfer occurred; (i) Indebtedness of
the Company in connection with a purchase of the Notes pursuant to a Change of
Control Offer, provided that the aggregate principal amount of such Indebtedness
does not exceed 101% of the aggregate principal amount at Stated Maturity of the
Notes purchased pursuant to such Change of Control Offer; provided, further,
that such Indebtedness (A) has an Average Life equal to or greater than the
remaining Average Life of the Notes and (B) does not mature prior to one year
following the Stated Maturity of the Notes; (j) Permitted Refinancing
Indebtedness; and (k) Permitted Subsidiary Refinancing Indebtedness. So as to
avoid duplication in determining the amount of Permitted Indebtedness under any
clause of this definition, guarantees permitted to be incurred pursuant to the
Indenture of, or obligations permitted to be incurred pursuant to the Indenture
in respect of letters of credit supporting, Indebtedness otherwise included in
the determination of such amount shall not also be included.
"Permitted Investments" means (a) certificates of deposit, bankers
acceptances, time deposits, Eurocurrency deposits, and similar types of
Investments routinely offered by commercial banks with final maturities of one
year or less issued by commercial banks organized in the United States, or
foreign branches thereof, having capital and surplus in excess of $500.0 million
or any commercial bank of any other country that is a member of the Organization
for Economic Cooperation and Development ("OECD") and has total assets in excess
of $500.0 million; (b) commercial paper issued by any corporation, if such
commercial paper has credit ratings of at least "A-1" or its equivalent by S&P
or at least "P-1" or its equivalent by Moody's; (c) U.S. Government Obligations
with a maturity of four years or less; (d) repurchase obligations for
instruments of the type described in clause (c) with any bank meeting the
qualifications specified in clause (a) above; (e) shares of money market mutual
or similar funds having assets in excess of $100.0 million; (f) payroll advances
in the ordinary course of business and other advances and loans to officers and
employees of the Company or any Subsidiary, so long as the aggregate principal
amount of such advances and loans does not exceed $500,000 at any one time
outstanding; (h) Investments represented by that portion of the proceeds from
Asset Sales that is not required to be Cash Proceeds by the covenant described
in "--Certain Covenants--Limitation on Asset Sales"; (i) Investments made by the
Company in Subsidiaries (or any Person that will be a Subsidiary as a result of
such Investment) or by a Subsidiary in the Company or in one or more
Subsidiaries (or any Person that will be a Subsidiary as a result of such
Investment); (j) Investments in stock, obligations, or securities received in
settlement of debts owing to the Company or any Subsidiary as a result of
bankruptcy or insolvency proceedings or upon the foreclosure, perfection or
enforcement of any Lien in favor of the Company or any Subsidiary, in each case
as to debt owing to the Company or any Subsidiary that arose in the ordinary
course of business of the Company or any such Subsidiary; (k) foreign bank
deposits and cash equivalents in jurisdictions where the Company or its
Subsidiaries are then actively conducting business provided that (i) all such
deposits are required to be made in the ordinary course of business, (ii) such
deposits do not exceed $15.0 million in the aggregate, and (iii) the funds so
deposited do not remain in such bank for more than 30 days; (l) Interest Swap
Obligations with respect to any
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floating rate Indebtedness that is permitted by the terms of the Indenture to be
outstanding; (m) Currency Hedge Obligations, provided that such Currency Hedge
Obligations constitute Permitted Indebtedness permitted by clause (d) of the
definition thereof; (n) Investments in prepaid expenses, negotiable instruments
held for collection and lease, utility, worker's compensation and performance
and other similar deposits in the ordinary course of business; and (o)
Investments pursuant to any agreement or obligation of the Company or any
Subsidiary in effect on the Issue Date and listed on a schedule attached to the
Indenture.
"Permitted Liens" means (a) Liens in existence on the Issue Date; (b)
Liens created for the benefit of the Notes and/or the Guarantees; (c) Liens on
Property of a Person existing at the time such Person is merged or consolidated
with or into the Company or a Subsidiary (and not incurred as a result of, or in
anticipation of, such transaction), provided that any such Lien relates solely
to such Property; (d) Liens on Property existing at the time of the acquisition
thereof (and not incurred as a result of, or in anticipation of such
transaction), provided that any such Lien relates solely to such Property; (e)
Liens incurred or pledges and deposits made in connection with worker's
compensation, unemployment insurance and other social security benefits,
statutory obligations, bid, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business; (f)
Liens imposed by law or arising by operation of law, including, without
limitation, landlords', mechanics', carriers', warehousemen's, materialmen's,
suppliers' and vendors' Liens and Liens for master's and crew's wages and other
similar maritime Liens, and incurred in the ordinary course of business for sums
not delinquent or being contested in good faith, if such reserves or other
appropriate provisions, if any, as shall be required by GAAP shall have been
made with respect thereof; (g) zoning restrictions, easements, licenses,
covenants, reservations, restrictions on the use of real property and defects,
irregularities and deficiencies in title to real property that do not,
individually or in the aggregate, materially affect the ability of the Company
or any Subsidiary to conduct its business presently conducted; (h) Liens for
taxes or assessments or other governmental charges or levies not yet due and
payable, or the validity of which is being contested by the Company or a
Subsidiary in good faith and by appropriate proceedings upon stay of execution
or the enforcement thereof and for which adequate reserves in accordance with
GAAP or other appropriate provision has been made; (i) Liens to secure
Indebtedness incurred for the purpose of financing all or a part of the purchase
price or construction cost of Property or assets acquired or constructed after
the Issue Date, provided that (1) the principal amount of Indebtedness secured
by such Liens shall not exceed 100% of the lesser of cost or Fair Market Value
of the Property or assets so acquired or constructed plus transaction costs
related thereto, (2) such Liens shall not encumber any other assets or Property
of the Company or any Subsidiary (other than the proceeds thereof and accessions
and upgrades thereto) and (3) such Liens shall attach to such Property or assets
within 120 days of the date of the completion of the construction or acquisition
of such Property or assets; (j) Liens securing Capital Lease Obligations,
provided that such Liens secure Capital Lease Obligations which, when combined
with (1) the outstanding secured Indebtedness of the Company and its
Subsidiaries (other than Indebtedness secured by Liens described under clauses
(b) and (i) hereof) and (2) the aggregate principal amount of all other Capital
Lease Obligations of the Company and Subsidiaries, does not exceed $5.0 million
at any one time outstanding; (k) Liens to secure any extension, renewal,
refinancing or refunding (or successive extensions, renewals, refinancings or
refundings), in whole or in part, of any Indebtedness secured by Liens referred
to in the foregoing clauses (a), (c) and (d), provided, that such Lien does not
extend to any other Property or assets of the Company or any Subsidiary and the
principal amount of the Indebtedness secured by such Lien is not increased; (l)
any charter or maritime lease; (m) leases or subleases of real property to other
Persons; (n) judgment liens not giving rise to an Event of Default so long as
any appropriate legal proceedings which may have been
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initiated for the review of such judgment shall not have been finally terminated
or the period within which such proceeding may be initiated shall not have
expired; (o) rights of off-set of banks and other Persons; (p) liens in favor of
the Company; and (q) Liens securing Indebtedness described under clause (b) of
the definition of Permitted Indebtedness and the Term Loan.
"Permitted Refinancing Indebtedness" means Indebtedness of the Company,
incurred in exchange for, or the net proceeds of which are used to renew,
extend, refinance, refund or repurchase, outstanding Indebtedness of the Company
which outstanding Indebtedness was incurred in accordance with, or is otherwise
permitted by, the terms of clauses (a) and (e) of the definition of "Permitted
Indebtedness", provided that (i) if the Indebtedness being renewed, extended,
refinanced, refunded or repurchased is pari passu with or subordinated in right
of payment (without regard to its being secured) to the Notes, then such new
Indebtedness is pari passu with or subordinated in right of payment (without
regard to its being secured) to, as the case may be, the Notes at least to the
same extent as the Indebtedness being renewed, extended, refinanced, refunded or
repurchased, (ii) such new Indebtedness is scheduled to mature later than the
Indebtedness being renewed, extended, refinanced, refunded or repurchased, (iii)
such new Indebtedness has an Average Life at the time such Indebtedness is
incurred that is greater than the Average Life of the Indebtedness being
renewed, extended, refinanced, refunded or repurchased, and (iv) such new
Indebtedness is in aggregate principal amount (or, if such Indebtedness is
issued at a price less than the principal amount thereof, the aggregate amount
of gross proceeds therefrom is) not in excess of the aggregate principal amount
then outstanding of the Indebtedness being renewed, extended, refinanced,
refunded or repurchased (or if the Indebtedness being renewed, extended,
refinanced, refunded or repurchased was issued at a price less than the
principal amount thereof, then not in excess of the amount of liability in
respect thereof determined in accordance with GAAP) plus the amount of
reasonable fees, expenses, and premium, if any, incurred by the Company or such
Subsidiary in connection therewith.
"Permitted Subsidiary Refinancing Indebtedness" means Indebtedness of
any Subsidiary, incurred in exchange for, or the net proceeds of which are used
to renew, extend, refinance, refund or repurchase, outstanding Indebtedness of
such Subsidiary which outstanding Indebtedness was incurred in accordance with,
or is otherwise permitted by, the terms of clauses (e) and (f) of the definition
of Permitted Indebtedness, provided that (i) if the Indebtedness being renewed,
extended, refinanced, refunded or repurchased is pari passu with or subordinated
in right of payment (without regard to its being secured) to the Guarantee of
such Subsidiary, then such new Indebtedness is pari passu with or subordinated
in right of payment (without regard to its being secured) to, as the case may
be, the Guarantee of such Subsidiary at least to the same extent as the
Indebtedness being renewed, extended, refinanced, refunded, or repurchased, (ii)
such new Indebtedness is scheduled to mature later than the Indebtedness being
renewed, extended, refinanced, refunded, or repurchased, (iii) such new
Indebtedness has an Average Life at the time such Indebtedness is incurred that
is greater than the Average Life of the Indebtedness being renewed, extended,
refinanced, refunded or repurchased, and (iv) such new Indebtedness is in an
aggregate principal amount (or, if such Indebtedness is issued at a price less
than the principal amount thereof, the aggregate amount of gross proceeds
therefrom is) not in excess of the aggregate principal amount then outstanding
of the Indebtedness being renewed, extended, refinanced, refunded or repurchased
(or if the Indebtedness being renewed, extended, refinanced, refunded or
repurchased was issued at a price less than the principal amount thereof, then
not in excess of the amount of liability in respect thereof determined in
accordance with GAAP) plus the amount of reasonable fees, expenses, and premium,
if any, incurred by the Company or such Subsidiary in connection therewith.
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"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Preferred Stock" of any Person means Capital Stock of such Person of
any class or classes (however designated) that ranks prior, as to the payment of
dividends and/or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of at least one other class of such Person.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, excluding Capital Stock in any other Person.
"Public Equity Offering" means an offering of Capital Stock (other than
Redeemable Stock) of the Company for cash pursuant to an effective registration
statement (other than on a Form S-4 or a Form S-8 or any other form relating to
securities issuable under any employee benefit plan of the Company) under the
Securities Act resulting in aggregate gross proceeds to the Company of at least
$25.0 million.
"Redeemable Stock" means, with respect to any Person, any equity
security that by its terms or otherwise is required to be redeemed, or is
redeemable at the option of the holder thereof, at any time prior to one year
following the Stated Maturity of the Notes or is exchangeable into Indebtedness
of such Person or any of its subsidiaries.
"Related Business" means the offshore energy services and marine
transportation services business and activities incidental thereto and any
business related or ancillary thereto.
"Replacement Asset" means a Property or asset that, as determined by
the Board of Directors of the Company as evidenced by a Board Resolution, is
used or is useful in a Related Business.
"Restricted Investment" means any Investment in any Person, including
an Unrestricted Subsidiary or the designation of a Subsidiary as an Unrestricted
Subsidiary, other than a Permitted Investment.
"Restricted Payment" means to (i) declare or pay any dividend on, or
make any distribution in respect of, or purchase, redeem, retire, or otherwise
acquire for value, any Capital Stock of the Company or any Affiliate of the
Company, or warrants, rights, or options to acquire such Capital Stock, other
than (x) dividends payable solely in the Capital Stock (other than Redeemable
Stock) of the Company or such Affiliate, as the case may be, or in warrants,
rights, or options to acquire such Capital Stock and (y) dividends or
distributions by a Subsidiary to the Company or to a Wholly Owned Subsidiary;
(ii) make any principal payment on, or redeem, repurchase, defease (including an
in-substance or legal defeasance) or otherwise acquire or retire for value
(including pursuant to mandatory repurchase covenants), prior to any scheduled
principal payment, scheduled sinking fund payment or other stated maturity,
Indebtedness of the Company or any Subsidiary which is subordinated (whether
pursuant to its terms or by operation of law) in right of payment to the Notes
or the Guarantees, as applicable; or (iii) make any Restricted Investment in any
Person.
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"Sale and Lease-Back Transaction" means, with respect to any Person,
any direct or indirect arrangement pursuant to which Property is sold or
transferred by such Person or a subsidiary of such Person and is thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its subsidiaries.
"Senior Debt" means any Indebtedness incurred by the Company, unless
the instrument under which such Indebtedness is incurred expressly provides that
it is subordinated in right of payment to the Notes, provided that Senior Debt
will not include (a) any liability for federal, state, local, or other taxes
owed or owing, (b) any Indebtedness owing to any Subsidiaries of the Company,
(c) any trade payables, (d) the Debentures, the Debenture Indenture, or the
Trust Preferred Securities Guarantee, or (e) any Indebtedness that is incurred
in violation of the Indenture.
"Significant Subsidiary" means any Guarantor or any other Subsidiary
that is a "significant subsidiary" as defined in Rule 1-02(w) of Regulation S-X
under the Securities Act and the Exchange Act.
"Stated Maturity" when used with respect to a Note or any installment
of interest thereon, means the date specified in such Note as the fixed date on
which the principal of such Note or such installment of interest is due and
payable.
"Subordinated Indebtedness" means any Indebtedness of the Company or
any Guarantor that is subordinated in right of payment to the Notes or the
Guarantees, as the case may be, and does not mature prior to one year following
the Stated Maturity of the Notes.
"subsidiary" means, with respect to any Person, (i) any corporation
more than 50% of the outstanding Voting Stock of which is owned, directly or
indirectly, by such Person, or by one or more other subsidiaries of such Person,
or by such Person and one or more other subsidiaries of such Person, (ii) any
general partnership, joint venture or similar entity, more than 50% of the
outstanding partnership or similar interest of which is owned, directly or
indirectly, by such Person, or by one or more other subsidiaries of such Person,
or by such Person and one or more other subsidiaries of such Person and (iii)
any limited partnership of which such Person or any subsidiary of such Person is
a general partner.
"Subsidiary" means a subsidiary of the Company other than an
Unrestricted Subsidiary or Hvide Capital Trust.
"Transaction Date" has the meaning specified within the definition of
Consolidated Interest Coverage Ratio.
"Trust Preferred Securities" means the 6 1/2% Trust Convertible
Preferred Securities of Hvide Capital Trust.
"Trust Preferred Securities Guarantee" means that certain Guarantee
dated as of June 27, 1997 executed and delivered by the Company to the guarantee
trustee named therein for the benefit of the holders of the Trust Preferred
Securities whereby the Company guarantees on a subordinated basis certain
payments by Hvide Capital Trust to the extent that Hvide Capital Trust has funds
on hand available therefor.
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"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged; (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under
clauses (i) or (ii) above, are not callable or redeemable at the option of the
issuers thereof; or (iii) depository receipts issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligations or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a Depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such Depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such Depository receipt.
"Unrestricted Subsidiary" means any subsidiary of the Company that the
Company has classified as an Unrestricted Subsidiary, and that has not been
reclassified as a Subsidiary, pursuant to the terms of the Indenture.
"Voting Stock" means with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holder thereof
(whether at all times or at the times that such class of Capital Stock has
voting power by reason of the happening of any contingency) to vote in the
election of members of the board of directors or comparable body of such Person.
"Wholly Owned Subsidiary" means any Subsidiary to the extent (i) all of
the Capital Stock or other ownership interests in such Subsidiary, other than
any directors' qualifying shares mandated by applicable law, is owned directly
or indirectly by the Company or (ii) such Subsidiary is organized in a foreign
jurisdiction and is required by the applicable laws and regulations of such
foreign jurisdiction to be partially owned by the government of such foreign
jurisdiction or individual or corporate citizens of such foreign jurisdiction in
order for such Subsidiary to transact business in such foreign jurisdiction,
provided that the Company, directly or indirectly, owns the remaining Capital
Stock or ownership interest in such Subsidiary and, by contract or otherwise,
controls the management and business of such Subsidiary and derives the economic
benefits of ownership of such Subsidiary to substantially the same extent as if
such Subsidiary were a wholly owned Subsidiary.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account pursuant
to the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with the resale of New Notes received in exchange for the Old Notes
if such Old Notes were acquired as a result of market-making activities or other
trading activities. The Company has agreed that, beginning on the Expiration
Date and ending on the close of business one year after the Expiration Date, it
will make this Prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition until ,
1999, all dealers effecting transactions in the New Notes may be required to
deliver a prospectus.
The Company will not receive any proceeds from any sale of New Notes by
broker-dealers. New Notes received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from
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time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the New Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such New
Notes. Any account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the Holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
The validity of the Notes offered hereby and certain legal matters
relating thereto will be passed upon on behalf of Hvide by Dyer Ellis & Joseph
PC, Washington, D.C.
EXPERTS
The consolidated financial statements of Hvide Marine Incorporated and
subsidiaries appearing in Hvide marine Incorporated's Annual Report (Form 10-K)
for the year ended December 31, 1996, have been audited by Ernst & Young LLP,
independent certified public accountants, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
The combined statements of assets to be sold of Care Offshore, Inc. as
of December 31, 1995 and 1996 and the related combined statements of vessel
operations for the years then ended appearing in Hvide Marine Incorporated's
Registration Statement (Form S-3 No. 333-42039), filed with the Securities and
Exchange Commission, have been audited by ATAG Ernst & Young SA, independent
auditors, as set forth in their report thereon and included therein and
incorporated herein by reference. Such combined financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Bay Transportation Corporation
as of December 31, 1996 and 1995 and for each of the two years in the period
ended December 31, 1996 incorporated in this Prospectus by reference to the
Registration Statement on Form S-3, Registration No. 333-42039 of Hvide Marine
Incorporated have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent certified public accountants, given on the authority
of said firm as experts in auditing and accounting.
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The statements of net assets to be acquired of the Marine Division of
Gulf Marine Maintenance and Offshore Service Company L.L.C., Dubai as at
December 31, 1996 and 1995 and related statements of revenues, direct expenses
and departmental overheads before corporate expenses and interest for the years
then ended, incorporated by reference in this Prospectus and the Exchange Offer
Registration Statement of which this Prospectus forms a part, have been audited
by Deloitte Touch, independent auditor, as stated in their report with respect
thereto and are incorporated herein by reference in reliance upon the authority
of said firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation provides that the Company shall
indemnify each director and officer of the Company to the fullest extent
permitted from time to time by the laws of the State of Florida or any other
applicable laws as presently or hereafter in effect. Section 607.0850 of the
Florida Business Corporation Act currently provides as follows:
(1) A corporation shall have power to indemnify any person who
was or is a party to any proceeding (other than an action by, or in the
right of, the corporation), by reason of the fact that he is or was a
director, officer, employee, or agent of the corporation or is or was
serving at the request of the corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise against liability incurred in connection
with such proceeding, including any appeal thereof, if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any proceeding by judgment,
order, settlement, or conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the
corporation or, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person,
who was or is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact
that he is or was a director, officer, employee, or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in
connection with the defense or settlement of such proceeding, including
any appeal thereof. Such indemnification shall be authorized if such
person acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the corporation, except
that no indemnification shall be made under this subsection in respect
of any claim, issue, or matter as to which such person shall have been
adjudged to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
(3) To the extent that a director, officer, employee, or agent
of a corporation has been successful on the merits or otherwise in
defense of any proceeding referred to in subsection (1) or subsection
(2), or in defense of any claim, issue, or matter therein,
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he shall be indemnified against expenses actually and reasonably
incurred by him in connection therewith.
(4) Any indemnification under subsection (1) or subsection
(2), unless pursuant to a determination by a court, shall be made by
the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee,
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsection (1) or
subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such
proceeding;
(b) If such a quorum is not obtainable or, even if obtainable,
by majority vote of a committee duly designated by the board
of directors (in which directors who are parties may
participate) consisting solely of two or more directors not at
the time parties to the proceeding;
(c) By independent legal counsel:
1. Selected by the board of directors prescribed in
paragraph (a) or the committee prescribed in paragraph (b); or
2. If a quorum of the directors cannot be obtained
for paragraph (a) and the committee cannot be designated under
paragraph (b), selected by majority vote of the full board of
directors (in which directors who are parties may
participate); or
(d) By the stockholders by a majority vote of a quorum
consisting of stockholders who were not parties to such
proceeding or, if no such quorum is obtainable, by a majority
vote of stockholders who were not parties to such proceeding.
(5) Evaluation of the reasonableness of expenses and
authorization of indemnification shall be made in the same manner as
the determination that indemnification is permissible. However, if the
determination of permissibility is made by independent legal counsel,
persons specified by paragraph (4)(c) shall evaluate the reasonableness
of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a
civil or criminal proceeding may be paid by the corporation in advance
of the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if he is ultimately found not to be entitled to indemnification
by the corporation pursuant to this section. Expenses incurred by other
employees and agents may be paid in advance upon such terms or
conditions that the board of directors deems appropriate.
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(7) The indemnification and advancement of expenses provided
pursuant to this section are not exclusive, and a corporation may make
any other or further indemnification or advancement of expenses of any
of its directors, officers, employees, or agents, under any bylaw,
agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office. However, indemnification
or advancement of expenses shall not be made to or on behalf of any
director, officer, employee, or agent if a judgment or other final
adjudication establishes that his actions, or omissions to act, were
material to the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director,
officer, employee, or agent had reasonable cause to believe
his conduct was lawful or had no reasonable cause to believe
his conduct was unlawful;
(b) A transaction from which the director, officer, employee,
or agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the
liability provisions of s. 607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the
right of the corporation to procure a judgment in its favor or
in a proceeding by or in the right of a stockholder.
(8) Indemnification and advancement of expenses as provided in
this section shall continue as, unless otherwise provided when
authorized or ratified, to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person, unless otherwise
provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or
of the stockholders in the specific case, a director, officer,
employee, or agent of the corporation who is or was a party to a
proceeding may apply for indemnification or advancement of expenses, or
both, to the court conducting the proceeding, to the circuit court, or
to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice that it considers
necessary, may order indemnification and advancement of expenses,
including expenses incurred in seeking court-ordered indemnification or
advancement of expenses, if it determines that:
(a) The director, officer, employee, or agent is entitled to
mandatory indemnification under subsection (3), in which case
the court shall also order the corporation to pay the director
reasonable expenses incurred in obtaining court-ordered
indemnification or advancement of expenses;
II-3
<PAGE>
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue
of the exercise by the corporation of its power pursuant to
subsection (7); or
(c) The director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of
expenses, or both, in view of all the relevant circumstances,
regardless of whether such person met the standard of conduct
set forth in subsection (1), subsection (2), or subsection
(7).
(10) For purposes of this section, the term "corporation"
includes, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a director,
officer, employee, or agent of a constituent corporation, or is or was
serving at the request of a constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise, is in the same position under this
section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section:
(a) The term "other enterprises" includes employee benefit
plans;
(b) The term "expenses" includes counsel fees, including those
for appeal;
(c) The term "liability" includes obligations to pay a
judgment, settlement, penalty, fine (including an excise tax
assessed with respect to any employee benefit plan), and
expenses actually and reasonably incurred with respect to a
proceeding;
(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether
civil, criminal, administrative, or investigative, and whether
formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation"
includes any service as a director, officer, employee, or
agent of the corporation that imposes duties on such persons,
including duties relating to an employee benefit plan and its
participants or beneficiaries; and
(g) The term "not opposed to the best interest of the
corporation" describes the actions of a person who acts in
good faith and in a manner he reasonably believes to be in the
best interests of the participants and beneficiaries of an
employee benefit plan.
II-4
<PAGE>
(12) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was director, officer,
employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, or other
enterprise against any liability asserted against him and incurred by
him in any such capacity or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
The Underwriting Agreement (Exhibit 1) provides for indemnification by
the Underwriters of the Registrant, its directors and executive officers and by
the Registrant of the Underwriters for certain liabilities, including
liabilities arising under the Securities Act and affords certain rights of
contribution with respect thereto.
The Registrant has purchased an insurance policy that provides for
indemnification of the Registrant's executive officers and directors for
liability resulting from their negligence, error, omission or breach of duty
while acting in their capacities as executive officers and directors on any
matter claimed against them by reason of their being executive officers and
directors.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) The following is a list of exhibits furnished:
No. Description
4.1 Indenture, dated February 19, 1998, among Hvide, the Subsidiary
Guarantors named therein and the Bank of New York as Trustee (to be
filed by amendment).
4.2 Registration Rights Agreement, dated as of February 19, 1998, among
Hvide the Subsidiary Guarantors named therein and Donaldson, Lufkin &
Jenrette Securities Corporation and the other Initial Purchasers (to
be filed by amendment).
5.1 Opinion of Dyer Ellis & Joseph, P.C. as to the legality of the New
Notes.
10.1 Amended and Restated Revolving Credit and Term Loan Agreement, dated as
of February 12, 1998 among Hvide, as Borrower, the Subsidiary
Guarantors named therein, the lending institutions which are or may
become parties thereto, CitiBank, N.A., as Administrative Agent,
BankBoston, N.A., as Documentation Agent and BancBoston Securities,
Inc., as Syndication Agent.
12.1 Statement regarding Ratio of Earnings to Fixed Charges.
21.1 List of Subsidiaries.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of ATAG Ernst & Young S.A.
II-5
<PAGE>
23.3 Consent of Price Waterhouse LLP.
23.4 Consent of Deloitte Touch.
23.5 Consent of Dyer Ellis & Joseph, P.C. (contained in Exhibit 5.1).
24.1 Powers of Attorney.
25.1 Statement of Eligibility of The Bank of New York as Indenture Trustee
on Form T-1.
99.1 Form of Letter of Transmittal (to be filed by amendment).
99.2 Form of Guaranteed Delivery (to be filed by amendment).
ITEM 22. UNDERTAKINGS.
The Registrant hereby undertakes the following:
(a) For purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or 15(d) of the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(c) Each of the undersigned registrants hereby undertakes to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Item 4, 10(b), 11, or 13 of this form, within one business day of
receipt of such request, and to send the incorporated document by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to the request.
(d) Each of the undersigned registrants hereby undertakes to supply by
means of a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Fort Lauderdale,
Florida on the day of March, 1998.
HVIDE MARINE INCORPORATED
By: /s/ J. ERIK HVIDE
J. Erik Hvide
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
J. Erik Hvide Executive Officer and Director (principal
executive officer)
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
John H. Blankley Officer and Director
/s/ JOHN J. KRUMENACKER Controller (principal accounting officer) March 18, 1998
John J. Krumenacker
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
Eugene F. Sweeney
/s/ ROBERT B. CALHOUN, JR. Director March 18, 1998
Robert B. Calhoun, Jr.
/s/ GERALD FARMER Director March 18, 1998
Gerald Farmer
/s/ JEAN FITZGERALD Director March 18, 1998
Jean Fitzgerald
</TABLE>
II-7
<PAGE>
<TABLE>
<S> <C> <C>
/s/ JOHN J. LEE Director March 18, 1998
John J. Lee
/s/ WALTER C. MINK Director March 18, 1998
Walter C. Mink
/s/ ROBERT RICE Director March 18, 1998
Robert Rice
/s/ RAYMOND B. VICKERS Director March 18, 1998
Raymond B. Vickers
/s/ JOSIAH O. LOW III Director March 18, 1998
Josiah O. Low III
</TABLE>
*By: /s/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
II-8
<PAGE>
HVIDE MARINE INTERNATIONAL, INC.
HVIDE MARINE TRANSPORT, INCORPORATED
SEABULK ALKATAR, INC
SEABULK ARABIAN, INC.
SEABULK ARCTIC EXPRESS, INC
SEABULK ARIES II, INC.
SEABULK ARZANAH, INC.
SEABULK BARRACUDA, INC.
SEABULK BECKY, INC.
SEABULK BETSY, INC.
SEABULK BRAVO, INC.
SEABULK BUL HANIN, INC.
SEABULK CAPRICORN, INC.
SEABULK CARDINAL, INC.
SEABULK CAROL, INC.
SEABULK CHAMP, INC.
SEABULK CHEMICAL CARRIERS, INC.
SEABULK CHRISTOPHER, INC.
SEABULK CLIPPER, INC.
SEABULK COMMAND, INC.
SEABULK CONDOR, INC.
SEABULK CONSTRUCTOR, INC.
SEABULK COOT I, INC.
SEABULK COOT II, INC.
SEABULK CORMORANT, INC.
SEABULK CYGNET I, INC.
SEABULK CYGNET II, INC.
SEABULK DANAH, INC.
SEABULK DAYNA, INC.
SEABULK DEBBIE, INC.
SEABULK DEFENDER, INC.
SEABULK DIANA, INC.
SEABULK DISCOVERY, INC.
SEABULK DUKE, INC.
SEABULK EAGLE II, INC.
SEABULK EAGLE, INC.
SEABULK EMERALD, INC.
SEABULK ENERGY, INC.
SEABULK EXPLORER, INC.
SEABULK FALCON II, INC.
SEABULK FALCON, INC.
SEABULK FREEDOM, INC.
SEABULK FULMAR, INC.
SEABULK GABRIELLE, INC.
SEABULK GANNET I, INC.
SEABULK GANNET II, INC.
SEABULK GAZELLE, INC.
SEABULK GIANT, INC.
SEABULK GREBE, INC.
SEABULK HABARA, INC.
SEABULK HAMOUR, INC.
SEABULK HARRIER, INC.
SEABULK HATTA, INC.
SEABULK HAWK, INC.
SEABULK HERCULES, INC.
SEABULK HERON, INC.
SEABULK HORIZON, INC.
SEABULK HOUBARE, INC.
SEABULK HUNTER, INC.
SEABULK IBEX, INC.
SEABULK ISABEL, INC.
SEABULK JEBEL ALI, INC.
SEABULK KESTREL, INC.
SEABULK KING, INC.
SEABULK KNIGHT, INC.
SEABULK LAKE EXPRESS, INC.
SEABULK LARA, INC.
SEABULK LARK, INC.
SEABULK LIBERTY, INC.
SEABULK LULU, INC.
SEABULK MAINTAINER, INC.
SEABULK MALLARD, INC.
SEABULK MARLENE, INC.
SEABULK MARTIN I, INC.
SEABULK MARTIN II, INC.
SEABULK MASTER, INC.
SEABULK MERLIN, INC.
SEABULK MUBARRAK, INC.
SEABULK NADA, INC.
SEABULK NEPTUNE, INC.
SEABULK OCEAN SYSTEMS CORPORATION
SEABULK OCEAN SYSTEMS HOLDINGS CORPORATION
SEABULK OFFSHORE ABU DHABI, INC.
SEABULK OFFSHORE DUBAI, INC.
SEABULK OFFSHORE GLOBAL HOLDINGS, INC.
SEABULK OFFSHORE HOLDINGS, INC.
SEABULK OFFSHORE INTERNATIONAL, INC.
SEABULK OFFSHORE OPERATORS, INC.
SEABULK ORYX, INC.
SEABULK OSPREY, INC.
SEABULK PELICAN, INC.
SEABULK PENGUIN I, INC.
SEABULK PENGUIN II, INC.
SEABULK PENNY, INC.
SEABULK PERSISTENCE, INC.
SEABULK PETREL, INC.
SEABULK PLOVER, INC.
SEABULK POWER, INC.
SEABULK PRIDE, INC.
SEABULK PRINCE, INC.
SEABULK PRINCESS, INC.
SEABULK PUFFIN, INC.
SEABULK QUEEN, INC.
SEABULK RAVEN, INC.
SEABULK ROOSTER, INC.
SEABULK RUBY, INC.
SEABULK SALIHU, INC.
SEABULK SAPPHIRE, INC.
SEABULK SARA, INC.
SEABULK SEAHORSE, INC.
SEABULK SENGALI, INC.
SEABULK SERVICE, INC.
SEABULK SHARI, INC.
SEABULK SHINDAGA, INC.
SEABULK SKUA I, INC.
SEABULK SNIPE, INC.
SEABULK STAR, INC.
SEABULK SUHAIL, INC.
SEABULK SWAN, INC.
SEABULK SWIFT, INC.
SEABULK TAURUS, INC.
SEABULK TENDER, INC.
SEABULK TERN, INC.
SEABULK TIMS I, INC.
SEABULK TITAN, INC.
SEABULK TOOTA, INC.
SEABULK TOUCAN, INC.
SEABULK TRANSMARINE II, INC.
SEABULK TRADER, INC.
SEABULK TREASURE ISLAND, INC.
SEABULK UMM SHAIF, INC.
SEABULK VERITAS, INC.
SEABULK VIRGO I, INC.
SEABULK VOYAGER, INC.
SEABULK ZAKUM, INC.
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrants have duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Fort Lauderdale,
Florida on the day of March, 1998.
<TABLE>
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
J. Erik Hvide Executive Officer and Director of the
foregoing companies
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
John H. Blankley Officer and Director of the foregoing
companies
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
Eugene F. Sweeney of the foregoing companies
</TABLE>
*By: /s/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
II-10
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Fort Lauderdale,
Florida on the day of March, 1998.
SEABULK AMERICA PARTNERSHIP, LTD.
By: SEABULK TANKERS, LTD.
General Partner of Seabulk America Partnership, Ltd.
By: HVIDE MARINE TRANSPORT, INCORPORATED
General Partner of Seabulk Tankers, Ltd.
<TABLE>
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
J. Erik Hvide Executive Officer and Director of
Hvide Marine Transport, Incorporated
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
John H. Blankley Officer and Director of Hvide Marine
Transport, Incorporated
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
Eugene F. Sweeney of Hvide Marine Transport, Incorporated
</TABLE>
*By: /s/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
II-11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Fort Lauderdale,
Florida on the day of March, 1998.
SEABULK OFFSHORE, LTD.
By: SEABULK TANKERS, LTD.
General Partner of Seabulk Offshore, Ltd.
By: HVIDE MARINE TRANSPORT, INCORPORATED
General Partner of Seabulk Tankers, Ltd.
<TABLE>
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
J. Erik Hvide Executive Officer and Director of
Hvide Marine Transport, Incorporated
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
John H. Blankley Officer and Director of Hvide Marine
Transport, Incorporated
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
Eugene F. Sweeney of Hvide Marine Transport, Incorporated
</TABLE>
*By: /s/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
II-12
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Fort Lauderdale,
Florida on the day of March, 1998.
OCEAN SPECIALTY TANKERS CORPORATION
<TABLE>
<S> <C> <C>
/s/ EUGENE F. SWEENEY President and Director March 18, 1998
Eugene F. Sweeney
/s/ L. STEPHEN WILLRICH Senior Vice President, Secretary, March 18, 1998
L. Stephen Willrich Treasurer and Director
/s/ J. ERIK HVIDE Director March 18, 1998
J. Erik Hvide
</TABLE>
*By: /s/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
II-13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Fort Lauderdale,
Florida on the day of March, 1998.
SEABULK TANKERS, LTD.
By: HVIDE MARINE TRANSPORT, INCORPORATED
General Partner of Seabulk Tankers, Ltd.
<TABLE>
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
J. Erik Hvide Executive Officer and Director of
Hvide Marine Transport, Incorporated
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
John H. Blankley Officer and Director of Hvide Marine
Transport, Incorporated
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
Eugene F. Sweeney of Hvide Marine Transport, Incorporated
</TABLE>
*By: /s/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
II-14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Fort Lauderdale,
Florida on the day of March, 1998.
TAMPA BAY TOWING, INC.
<TABLE>
<S> <C> <C>
/s/ J. ERIK HVIDE President, Chief Executive Officer March 18, 1998
J. Erik Hvide and Director
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
John H. Blankley Officer, Treasurer and Director
/s/ EUGENE F. SWEENEY Executive Vice President--Operations and March 18, 1998
Eugene F. Sweeney Director
/s/ JAMES S. KIMBRELL Executive Vice President March 18, 1998
James S. Kimbrell
/s/ JAMES C. BRANTNER Executive Vice President March 18, 1998
James C. Brantner
</TABLE>
*By: /s/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
II-15
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Fort Lauderdale,
Florida on the day of March, 1998.
SEABULK TRANSMARINE PARTNERSHIP, LTD.
By: SEABULK TANKERS, LTD.
General Partner of Seabulk America Partnership, Ltd.
By: HVIDE MARINE TRANSPORT, INCORPORATED
General Partner of Seabulk Tankers, Ltd.
<TABLE>
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
J. Erik Hvide Executive Officer and Director of
Hvide Marine Transport, Incorporated
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
John H. Blankley Officer and Director of Hvide Marine
Transport, Incorporated
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
Eugene F. Sweeney of Hvide Marine Transport, Incorporated
</TABLE>
*By: /s/ MICHAEL JOSEPH
Michael Joseph
Attorney-in-Fact
II-16
March 18, 1998
Hvide Marine Incorporated
Hvide Capital Trust
2200 Eller Drive
Port Everglades Station
Ft. Lauderdale, Florida 33316
Re: Hvide Marine Incorporated
Registration Statement on Form S-4 (File No. 333-42039)
Ladies and Gentlemen:
We are delivering this opinion in connection with the Registration Statement,
relating to the Company's offer to exchange its registered 83/8% Senior Notes
due 2008 ("New Notes") for its $300 million of 83/8% Senior Notes due 2008, sold
in transactions exempt from registration under Rule 144A and Regulation S ("Old
Notes" and together with the New Notes the "Notes") and guarantees of the Notes
issued by substantially all of the Company's subsidiaries (the "Guarantees"),
which securities have been or will be issued pursuant to an Indenture dated
February 19, 1998 (the "Indenture").
Based upon and subject to the foregoing, we are of the opinion that:
1. The New Notes have been duly authorized by the Company, and
constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their
terms.
2. The Guarantees have been duly authorized by each subsidiary of
the Company issuing a guarantee under the Indenture, and are
valid and binding obligations of such subsidiaries,
enforceable against them in accordance with their terms.
These opinions are subject to the following exceptions, limitations and
qualifications: (i) the effect of bankruptcy, insolvency, fraudulent transfer,
fraudulent conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to or affecting the rights and remedies of
creditors; and (ii) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or law, and the discretion
of the court before which any proceeding therefor may be brought.
To the extent that the obligations of the Company or its subsidiaries under the
Indenture may be dependent upon such matters, we assume for purposes of this
opinion that the
<PAGE>
Hvide Marine Incorporated
March 18, 1998
Page 2
Indenture Trustee is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization; that the Indenture Trustee is duly
qualified to engage in the activities contemplated by the Indenture; that the
Indenture has been duly authorized, executed and delivered by the Indenture
Trustee and constitutes the legally valid, binding and enforceable obligation of
the Indenture Trustee enforceable against the Indenture Trustee in accordance
with its terms; that the Indenture Trustee is in compliance, generally and with
respect to acting as a trustee under the Indenture, with all applicable laws and
regulations; and that the Indenture Trustee has the requisite organizational and
legal power and authority to perform its obligations under the Indenture.
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and the reference to this firm under the
heading "Legal Matters" in the Registration Statement.
Very truly yours,
/s/ Dyer Ellis & Joseph
Exhibit 10.1
AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT
DATED as of February 12, 1998
among
HVIDE MARINE INCORPORATED
and
The Guarantors Identified Herein
and
The Lending Institutions Identified Herein
and
CITIBANK, N.A., as Administrative Agent
and
BANKBOSTON, N.A., as Documentation Agent
and
BANCBOSTON SECURITIES INC., as Syndication Agent
with
CITICORP SECURITIES, INC.
and
BANCBOSTON SECURITIES INC.
Having Acted as Arrangers
<PAGE>
AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT is
made as of February 12, 1998, by and among HVIDE MARINE INCORPORATED (the
"Borrower"), a Florida corporation having its principal place of
business at 2200 Eller Drive, P.O. Box 13038, Port Everglades Station, Fort
Lauderdale, FL 33316, the Guarantors referred to herein, the lending
institutions listed on Schedule 1 hereto, CITIBANK, N.A. as administrative agent
(the "Administrative Agent"), BANKBOSTON, N.A., as documentation agent (the
"Documentation Agent"), and BANCBOSTON SECURITIES INC., as syndication agent
(the "Syndication Agent").
WHEREAS, the Borrower is a party to (i) a Revolving Credit Agreement,
dated as of September 30, 1997 (as amended, the "Existing Revolving Credit
Agreement") among the Borrower, the guarantors named therein (the "Existing
Guarantors"), the lending institutions party thereto (the "Existing Revolving
Credit Banks"), Citibank, N.A., as administrative agent and BankBoston, N.A. as
syndication agent (collectively, the "Existing Revolving Credit Agents"),
pursuant to which the Existing Revolving Credit Banks have made revolving credit
loans (the "Existing Revolving Credit Loans") to the Borrower and (ii) a Term
Loan Agreement, dated as of November 26, 1997 (as amended, the "Existing Term
Loan Agreement") among the Borrower, the Existing Guarantors, the lending
institutions party thereto (the "Existing Term Loan Banks" and together with the
Existing Revolving Credit Banks, the "Existing Banks") and BankBoston, N.A. as
agent (the "Existing Term Loan Agent" and together with the Existing Revolving
Credit Agents, the "Existing Agents"), pursuant to which the Existing Term Loan
Banks have made advances of a term loan (the "Existing Term Loan") to the
Borrower; and
WHEREAS, the Borrower, the Existing Guarantors, the Existing Banks and
the Existing Agents have agreed, subject to the satisfaction of the conditions
precedent set forth herein, to amend and restate the Existing Revolving Credit
Agreement, the Existing Revolving Credit Loans, the Existing Term Loan
Agreement, and the Existing Term Loan, as more fully set forth herein.
NOW, THEREFORE, the parties hereto hereby agree that, on and as of the
Closing Date, the Existing Revolving Credit Agreement, the Existing Revolving
Credit Loans, the Existing Term Loan Agreement, and the Existing Term Loan shall
be amended and restated as set forth herein and shall remain in force and effect
only as provided herein.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions.
The following terms shall have the meanings set forth in this ss.1 or
elsewhere in the provisions of this Credit Agreement referred to below:
Adjustment Date. The first day of the month immediately following the
month in
<PAGE>
which a Compliance Certificate is delivered by the Borrower pursuant to
ss.11.4(d) hereof and the date of the consummation of any Permitted Acquisition
involving consideration paid or to be paid by the Borrower and its Subsidiaries
(including assumption of liabilities) in excess of $30,000,000.
Administrative Agent. As defined in the preamble hereto.
Administrative Agent's Head Office. The Administrative Agent's head
office located at Two Penn's Way, Suite 200, Newcastle, Delaware 19720, or at
such other location as the Administrative Agent may designate from time to time.
Affiliate. Any Person that would be considered to be an affiliate of
the Borrower under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Agents. Collectively, the Administrative Agent and the Documentation
Agent.
Agents' Special Counsel. Bingham Dana LLP or such other counsel as may
be approved by the Agents.
Applicable Margin. 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 percentage
set forth below with respect to the Leverage Ratio, determined on a Pro Forma
Basis as of the end of the fiscal quarter of the Borrower immediately preceding
the date of such Compliance Certificate:
<PAGE>
<TABLE>
<CAPTION>
Base Eurodollar Commitment
Level Leverage Ratio Rate Loans Rate Loans Fee
<S> <C> <C> <C> <C>
I Greater than or equal to 3.50 to 1.00 0.50% 1.50% 0.300%
II Less than 3.50 to 1.00 and greater 0.25% 1.25% 0.300%
than or equal to 3.00 to 1.00
III Less than 3.00 to 1.00 and greater 0% 1.00% 0.250%
than or equal to 2.25 to 1.00
IV Less than 2.25 to 1.00 and greater 0% 0.75% 0.200%
than or equal to 1.50 to 1.00
V Less than 1.50 to 1.00 0% 0.50% 0.150%
- --------- ---- --------------------------------------------- --------------- ------------------ ------------------
</TABLE>
Notwithstanding the foregoing, (a) until the delivery of the Compliance
Certificate for the fiscal quarter of the Borrower ending on or about March 31,
1998 the Applicable Margin shall not be less than the percentage corresponding
to Level III in the table above and (b) if the Borrower fails to deliver any
Compliance Certificate pursuant to ss.11.4(d) hereof, then for the period
commencing on the date such Compliance Certificate was due through the date
immediately preceding the Adjustment Date that occurs immediately following the
date on which such Compliance Certificate is delivered, the Applicable Margin
shall be that percentage corresponding to Level I in the table above.
Arrangers. BancBoston Securities Inc. and Citicorp Securities Inc.
Assignment and Acceptance. See ss.22.1.
Balance Sheet Date. December 31, 1996.
Banks. The lending institutions listed on Schedule 1 hereto and any
other Person who becomes an assignee of any rights and obligations of a Bank
pursuant to ss.22. The term "Banks" as used herein also includes the Issuing
Bank.
Base Rate. The higher of (i) the annual rate of interest announced from
time to time by the Administrative Agent at its head office in New York, New
York, as its "base rate" and (ii) one-half of one percent (1/2%) above the
Federal Funds Effective Rate. For the purposes of this definition, "Federal
Funds Effective Rate" shall mean for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three funds brokers of recognized standing selected by the
Administrative Agent.
Base Rate Loans. Revolving Credit Loans and all or any portion of the
Term Loan
<PAGE>
bearing interest calculated by reference to the Base Rate.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which banking institutions in New York, New
York and Boston, Massachusetts, are open for the transaction of banking business
and, in the case of Eurodollar Rate Loans, also a day which is a Eurodollar
Business Day.
Capitalized Lease. With respect to the Borrower and its Subsidiaries,
any lease of any property (whether real, personal or mixed) by such Persons as
lessee that, in accordance with generally accepted accounting principles, either
would be required to be classified and accounted for as a capital lease on a
balance sheet of such Persons or otherwise be disclosed as such in a note to
such balance sheet, other than, in the case of the Borrower or a Subsidiary of
the Borrower, any such lease under which the Borrower or such Subsidiary is the
lessor.
Change of Control. Any of (a) Mr. J. Erik Hvide, members of his
immediate family, and estate planning trusts for the benefit of the foregoing
shall, at any time, cease to own shares of capital stock of the Borrower
representing at least twenty percent (20%) of the total shareholder votes of the
Borrower, (b) any Person or group of Persons shall, at any time, own a greater
percentage of the total shareholder votes of the Borrower than Mr. J. Erik
Hvide, members of his immediate family, and estate planning trusts for the
benefit of the foregoing, or (c) the occurrence of a "Change of Control" under,
and as defined in, the Senior Note Indenture.
Closing Date. The first date on which the conditions set forth in ss.14
have been satisfied and the Existing Revolving Credit Loans and the Existing
Term Loan are to be amended and restated as set forth herein, any Revolving
Credit Loan is to be made hereunder, and any Letter of Credit is to be issued
hereunder.
Code. The Internal Revenue Code of 1986.
Collateral. All of the property, rights and interests of the Borrower and
its Subsidiaries that are or are intended to be subject to the security
interests and mortgages created by the Security Documents.
Commitment. With respect to any Bank, such Bank's Revolving Credit Commitment
and/or Term Loan Commitment, as the context may require.
Compliance Certificate. See ss.11.4(d).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
Consolidated EBITDA. With respect to the Borrower and its Subsidiaries
and for any
<PAGE>
period, the Consolidated Net Income of such Persons for such period, plus, to
the extent deducted in the calculation of Consolidated Net Income and without
duplication, Consolidated Total Interest Expense, income taxes paid,
depreciation, amortization and other non-cash adjustments to income for such
period, excluding amortized drydocking expenses.
Consolidated EBITDAR. Consolidated EBITDA for any period, plus, without
duplication, Consolidated Rental Expense for such period.
Consolidated Net Income. The consolidated net income of the Borrower
and its Subsidiaries, after deduction of all expenses, taxes, and other proper
charges, determined in accordance with generally accepted accounting principles,
without giving effect to any adjustments, accruals, deductions or entries
resulting from any gains or losses from the sale or other disposition of assets
of such Person during such period.
Consolidated Net Worth. The excess of the total assets of the Borrower
and its Subsidiaries on a consolidated basis in accordance with generally
accepted accounting principles over Consolidated Total Liabilities.
Consolidated Rental Expense. With respect to the Borrower and its
Subsidiaries and for any period, all payments of such Persons for such period
under operating leases and all other rental payments as determined in accordance
with generally accepted accounting principles.
Consolidated Total Indebtedness. As of any date, all Indebtedness of
the Borrower and its Subsidiaries, determined on a consolidated basis for such
Persons in accordance with generally accepted accounting principles.
Consolidated Total Interest Expense. With respect to the Borrower and
its Subsidiaries and for any period, the interest expense net of interest income
of such Persons for such period as determined in accordance with generally
accepted accounting principles.
Consolidated Total Liabilities. All the obligations in accordance with
generally accepted accounting principles which are included in determining the
total liabilities as shown on the liabilities side of the consolidated balance
sheet of the Borrower and its Subsidiaries.
Conversion Request. A notice given by the Borrower to the
Administrative Agent of the Borrower's election to convert or continue a Loan in
accordance with ss.2.7.
Credit Agreement. This Amended and Restated Revolving Credit and Term
Loan Agreement, including the Schedules and Exhibits hereto.
Debt Service Coverage Ratio. As at the end of each fiscal quarter of
the Borrower, the ratio of (a) Consolidated EBITDA for the period of the four
consecutive fiscal quarters of the Borrower then ending to (b) Consolidated
Total Interest Expense for the period of the four consecutive fiscal quarters of
the Borrower then ending.
<PAGE>
Default. See ss.16.1.
Delinquent Bank. See ss.18.5.3.
Derivative Transaction. Any of (i) a "swap agreement" as defined in
Section 101(53B) of the United States Bankruptcy Code (other than a spot foreign
exchange transaction), (ii) any equity swap, floor, collar, cap or option
transaction, (iii) any option to enter into any of the foregoing, and (iv) any
combination of the foregoing.
Distribution. The declaration or payment of any dividend on or in
respect of any shares of any class of capital stock of the Borrower or any of
its Subsidiaries, other than dividends payable solely in shares of common stock
of the Borrower or such Subsidiary; the purchase, redemption, or other
retirement of any shares of any class of capital stock of the Borrower or such
Subsidiary, directly or indirectly through a Subsidiary of the Borrower or such
Subsidiary or otherwise; the return of capital by the Borrower or such
Subsidiary to its shareholders as such; or any other distribution on or in
respect of any shares of any class of capital stock of the Borrower or such
Subsidiary.
Documentation Agent. As defined in the preamble hereto.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of each Bank designated
as such in Schedule 1 hereto; thereafter, such other office of such Bank, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Drawdown Date. The date on which any Revolving Credit Loan is made or
is to be made, the date on which the Existing Term Loan is amended and restated
as set forth herein, and the date on which any Revolving Credit Loan is
converted or continued in accordance with ss.2.7 or on which all or any portion
of the Term Loan is converted or continued in accordance with ss.4.5.2.
Eligible Assignee. Any of (i) a commercial bank 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; (ii) 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; (iii) 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; (iv) the
central bank of any country which is a member of the OECD; and (v) if, but only
if, any Event of Default has occurred and is continuing, any other bank,
insurance company, commercial finance company or other financial institution
approved by the Administrative Agent, such approval not to be unreasonably
withheld.
<PAGE>
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See ss.10.17.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Administrative Agent
in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of each Bank
designated as such in Schedule 1 hereto; thereafter, such other office of such
Bank, if any, that shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (i) the arithmetic average of the rates
per annum for each Reference Bank (rounded upwards to the nearest 1/16 of one
percent) at which each such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits at 11:00 a.m. (London time) two Eurodollar Business Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange operations of such
Eurodollar Lending Office are customarily conducted, for delivery on the first
day of such Interest Period for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Rate Loan of such Reference
Bank to which such Interest Period applies, divided by (ii) a number equal to
1.00 minus the Eurocurrency Reserve Rate, if applicable.
Eurodollar Rate Loans. Revolving Credit Loans and all or any portion
of the Term Loan bearing interest calculated by reference to the Eurodollar
Rate.
<PAGE>
Event of Default. See ss.16.1.
Existing Revolving Credit Agreement. See the preamble hereto.
Existing Revolving Credit Loans. See the preamble hereto.
Existing Term Loan. See the preamble hereto.
Existing Term Loan Agreement. See the preamble hereto.
Fee Letter. The letter agreement, dated as of February 12, 1998, among the
Borrower, the Administrative Agent, the Documentation Agent and the Arrangers.
Fronting Fee. See ss.5.6.
generally accepted accounting principles. (i) When used in ss.13,
whether directly or indirectly through reference to a capitalized term used
therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (B) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by the Borrower 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.
Guarantors. Each entity executing this Credit Agreement as a guarantor
and each additional Subsidiary of the Borrower which delivers a guaranty of the
Obligations pursuant to ss.9 hereof.
Guaranty. The Guaranty set forth in ss.6 hereof and each additional
guaranty of the Obligations delivered pursuant to ss.9 hereof.
Indebtedness. (a) Any liability of any Person (i) for borrowed money, or
under any reimbursement obligation related to a letter of credit or bid or
performance bond facility, or (ii) evidenced by a bond, note, debenture or other
evidence of indebtedness (including a
<PAGE>
purchase money obligation) representing extensions of credit or given in
connection with the acquisition of any business, property, service or asset of
any kind (other than a trade payable or other current liability arising in the
ordinary course of business) or (iii) for obligations with respect to (A) an
operating lease calculated on the basis of the present value discounted at ten
percent (10%) on the future payments from such Person under such operating
lease, or (B) a lease of real or personal property that is or would be
classified and accounted for as a Capitalized Lease; (b) any liability of others
either for any lease, dividend or letter of credit, or for any obligation
described in the preceding clause (a) that (i) the Person has guaranteed or that
is otherwise its legal liability (whether contingent or otherwise or direct or
indirect, but excluding endorsements of negotiable instruments for deposit or
collection in the ordinary course of business) or (ii) is secured by any Lien on
any property or asset owned or held by that Person, regardless whether the
obligation secured thereby shall have been assumed by or is a personal liability
of that Person; and (c) any amendment, supplement, modification, deferral,
renewal, extension or refunding of any liability of the types referred to in
clauses (a) and (b), above.
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. ss.24, Seventh), as amended.
Insurance Assignments. Collectively, the several Assignments of
Insurance Policies, whether dated on or after the Closing Date, entered into
between the Documentation Agent and the Borrower and those Guarantors owning
Vessels which, pursuant to ss.9 hereof, are subject to a perfected first
priority mortgage in favor of the Documentation Agent.
Interest Payment Date. (i) As to any Base Rate Loan, the last day of
the calendar quarter with respect to interest accrued during such calendar
quarter, including, without limitation, the calendar quarter which includes the
Drawdown Date of such Base Rate Loan; (ii) as to any Eurodollar Rate Loan in
respect of which the Interest Period is (A) 3 months or less, the last day of
such Interest Period and (B) more than 3 months, the date that is 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 Revolving Credit Loan and all or
any portion of the Term Loan, (i) 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 Borrower in a Loan Request or as otherwise
required by the terms of this Credit Agreement (A) for any Base Rate Loan, the
last day of the calendar quarter; and (B) for any Eurodollar Rate Loan, 1, 2, 3,
or 6 months; and (ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Revolving Credit Loan or all
or such portion of the Term Loan and ending on the last day of one of the
periods set forth above, as selected by the Borrower in a Conversion Request;
provided that all of the foregoing provisions relating to Interest Periods are
subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate
Loan would otherwise end on a day that is not a Eurodollar Business
Day, that Interest Period shall
<PAGE>
be extended to the next succeeding Eurodollar 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 Eurodollar Business Day;
(b) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in
ss.2.7, the Borrower shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Base Rate Loan and the
continuance of all Base Rate Loans as Base Rate Loans on the last day
of the then current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan
that begins on the last Eurodollar Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Eurodollar Business Day of a calendar month; and
(e) any Interest Period that would otherwise extend beyond the
Revolving Credit Maturity Date, if comprising a Revolving Credit Loan,
shall end on the Revolving Credit Maturity Date or the Term Loan
Maturity Date, if comprising all or a portion of the Term Loan, shall
end on the Term Loan 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: (i) 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; (ii) 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); (iii) there shall not be
deducted in respect of any Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise; and (iv) there shall
not be deducted from the aggregate amount of Investments any decrease in the
value thereof.
Issuing Bank. BankBoston, N.A.
Letter of Credit. See ss.5.1.1.
Letter of Credit Application. See ss.5.1.1.
Letter of Credit Fee. See ss.5.6.
Letter of Credit Participation. See ss.5.1.4.
<PAGE>
Leverage Ratio. As at the end of each fiscal quarter of the Borrower,
the ratio of (a) Consolidated Total Indebtedness as at the end of such fiscal
quarter to (b) Consolidated EBITDAR, determined on a Pro Forma Basis for the
period of the four consecutive fiscal quarters of the Borrower then ending;
provided that for purposes of calculating the Leverage Ratio for the fiscal
quarter of the Borrower ending on or about (i) December 31, 1997, Consolidated
EBITDAR shall be Consolidated EBITDAR for the period of the one fiscal quarter
then ending, multiplied by 4, (ii) March 31, 1998, Consolidated EBITDAR shall be
Consolidated EBITDAR for the period of the two consecutive fiscal quarters then
ending, multiplied by 2, and (iii) June 30, 1998, Consolidated EBITDAR shall be
Consolidated EBITDAR for the period of the three consecutive fiscal quarters
then ending, multiplied by 1.3333.
Loan Documents. This Credit Agreement, the Guaranties, the Notes, the
Letters of Credit, the Letter of Credit Applications, the Security Documents and
the Fee Letter.
Loan Request. See ss.2.6.
Loans. The Revolving Credit Loans and the Term Loan.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time 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.
Multiemployer Plan. Any multiemployer plan within the meaning of ss.3(37)
of ERISA maintained or contributed to by the Borrower or any ERISA Affiliate.
Non-Guarantor Subsidiary. See ss.9.
Notes. The Revolving Credit Notes and the Term Notes.
Obligations. All indebtedness, obligations and liabilities of any of
the Borrower and its Subsidiaries to any of the Banks and the Agents,
individually or collectively, existing on the date of this Credit 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 Credit Agreement or any of the other Loan Documents or in
respect of any of the Loans made or Reimbursement Obligations incurred or any of
the Notes, Letter of Credit Applications, Letters of Credit, or other
instruments at any time evidencing any thereof.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of ERISA
and any successor entity or entities having similar responsibilities.
Permitted Acquisition. The acquisition by the Borrower or any of its
Subsidiaries of
<PAGE>
any Person, business, division, or specified group of assets, provided that the
following conditions are met with respect to any such acquisition:
(a) immediately before, immediately after, and after giving
effect to, such acquisition, no Default or Event of Default shall have
occurred and be continuing;
(b) concurrently with the effectiveness of any such
acquisition involving consideration paid or to be paid by the Borrower
and its Subsidiaries (including assumption of liabilities) in excess of
$30,000,000, the Borrower shall have delivered to the Agents and the
Banks a Compliance Certificate demonstrating the Borrower's compliance
with the covenants set forth in ss.13 hereof on a Pro Forma Basis
(after giving effect to such acquisition) for the immediately
succeeding three (3) fiscal quarters of the Borrower, and the
Applicable Margin shall be adjusted as of the date of such acquisition
to reflect any change in the Leverage Ratio after giving effect to such
acquisition;
(c) either (i) such acquisition is the acquisition of assets
only (for use in substantially the same line of business as the line of
business of the Borrower) and not the capital stock or other equity
interests of any Person; or (ii) such acquisition involves the purchase
of the capital stock or other equity interests of a Person and each of
the following conditions is met:
(A) such acquisition is the acquisition of one
hundred percent (100%) of the capital stock or other equity
interests of such Person,
(B) such Person is in substantially the same line of
business as the Borrower,
(C) such acquisition has been approved by the board
of directors (or other similar body) of such Person, and
(D) concurrently with the effectiveness of such
acquisition, the Borrower shall cause such Person to guaranty
all of the Obligations hereunder pursuant to a Guaranty in
form and substance satisfactory to the Administrative Agent,
which such Guaranty shall be a Loan Document hereunder.
Permitted Liens. Liens, security interests and other encumbrances
permitted by ss.12.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Pledge Agreements. Collectively, the several Pledge Agreements, whether
dated on or after the Closing Date, entered into between the Borrower and/or the
Guarantors and the Documentation Agent, in each case, with respect to the
capital stock or other equity interests of those Guarantors owning Vessels
which, pursuant to ss.9 hereof, are subject to a perfected
<PAGE>
first priority mortgage in favor of the Documentation Agent.
Pro Forma Basis. In connection with any proposed Permitted Acquisition
and the calculation of the Applicable Margin, (i) the calculation of compliance
with the financial covenants set forth in ss.13 hereof by the Borrower and its
Subsidiaries (including the Person or asset(s) to be acquired) with reference to
the audited historical financial results of such Person, if available, and if
not so available, then with reference to such management certified financial
results of such Person as shall be reasonably acceptable to the Administrative
Agent (or, if an acquisition of assets, the financial results attributable to
such assets) and the Borrower and its Subsidiaries for the applicable Test
Period ending immediately prior to the date of such acquisition, after giving
effect on a pro forma basis to such Permitted Acquisition in the manner
described below and (ii) the calculation of compliance with the financial
covenants set forth in ss.13 hereof by the Borrower and its Subsidiaries
(including the Person or assets(s) to be acquired) with reference to the audited
historical financial results of such Person, if available, and if not so
available, such management certified financial results of such Person as shall
be reasonably acceptable to the Administrative Agent (or, if an acquisition of
assets, the financial results attributable to such assets) and the Borrower and
its Subsidiaries for each of the three fiscal quarters of the Borrower
immediately following such Permitted Acquisition, in each case for the Test
Period applicable to such financial covenant, after giving effect on a pro forma
basis to such Permitted Acquisition in the manner described below:
(i) all Indebtedness (whether under this Credit Agreement or
otherwise) and any other balance sheet adjustments incurred or made in
connection with the Permitted Acquisition shall be deemed to have been
incurred or made on the first day of the Test Period, and all
Indebtedness of the Person acquired or to be acquired in such Permitted
Acquisition which was or will have been repaid in connection with the
consummation of the Permitted Acquisition shall be deemed to have been
repaid concurrently with the incurrence of the Indebtedness incurred in
connection with the Permitted Acquisition;
(ii) all Indebtedness assumed to have been incurred pursuant
to the preceding clause (i) shall be deemed to have borne interest at
the sum of (a) the arithmetic mean of (x) the Eurodollar Rate for
Eurodollar Rate Loans having an Interest Period of one month in effect
on the first day of the Test Period and (y) the Eurodollar Rate for
Eurodollar Rate Loans having an Interest Period of one month in effect
on the last day of the Test Period plus (b) the Applicable Margin then
in effect (after giving effect to the Permitted Acquisition on a Pro
Forma Basis); and
(iii) other reasonable cost savings, expenses and other income
statement or operating statement adjustments which are attributable to
the change in ownership and/or management resulting from such Permitted
Acquisition as may be approved by the Administrative Agent in writing
(which approval shall not be unreasonably withheld) shall be deemed to
have been realized on the first day of the Test Period.
Real Estate. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower or any of its Subsidiaries.
<PAGE>
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.
Reference Bank. Citibank, N.A..
Register. See ss.22.3.
Reimbursement Obligation. The Borrower's obligation to reimburse the
Issuing Bank and the other Banks on account of any drawing under any Letter of
Credit as provided in ss.5.2.
Required Banks. As of any date, the Banks whose sum of (i) Revolving
Credit Exposure plus (ii) the principal amount of the Term Loan owing to such
Bank constitutes at least fifty-one percent (51%) of the sum of (i) the
aggregate Revolving Credit Exposure of all the Banks plus (ii) the aggregate
principal amount of the Term Loan outstanding on such date.
Revolving Credit Commitment. With respect to each Bank, the amount set
forth on Schedule 1 hereto as the amount of such Bank's commitment to amend and
restate the "Existing Revolving Credit Loans" and to make Revolving Credit Loans
to the Borrower, as the same may be reduced from time to time; or if such
commitment is terminated pursuant to the provisions hereof, zero.
Revolving Credit Commitment Percentage. With respect to each Bank, the
percentage set forth on Schedule 1 hereto as such Bank's percentage of the Total
Revolving Credit Commitment.
Revolving Credit Exposure. With respect to any Bank at any date of
determination, (i) prior to the termination of the Revolving Credit Commitments,
such Bank's Revolving Credit Commitment and (b) after the termination of the
Revolving Credit Commitments, the sum of (i) the aggregate principal amount of
the Revolving Credit Loans of such Bank plus (ii) the aggregate amount of such
Bank's Letter of Credit Participations.
Revolving Credit Loans. The Existing Revolving Credit Loans which are
amended and restated pursuant to this Credit Agreement and the revolving credit
loans made or to be made by the Banks to the Borrower pursuant to ss.2.
Revolving Credit Maturity Date. February 12, 2003.
Revolving Credit Note Record. A Record with respect to a Revolving
Credit Note.
Revolving Credit Notes. See ss.2.4.
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.
<PAGE>
Security Agreements. Collectively, the several Security Agreements,
whether dated on or after the Closing Date, entered into between the
Documentation Agent and the Borrower and those Guarantors owning Vessels which,
pursuant to ss.9 hereof, are subject to a perfected first priority mortgage in
favor of the Documentation Agent.
Security Documents. Collectively, the Vessel Mortgages, the Security
Agreements, the Insurance Assignments, and the Pledge Agreements.
Senior Note Indenture. The Indenture dated as of February 19, 1998,
between The Bank of New York, as trustee and the Borrower, in form and substance
satisfactory to the Agents.
Senior Notes. The senior unsecured promissory notes due 2008 of the
Borrower in an aggregate principal amount not to exceed $350,000,000, issued
pursuant to the Senior Note Indenture and otherwise on terms and conditions
(including, without limitation, with respect to interest rate, tenor and
covenants) as shall be satisfactory to the Agents.
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.
Syndication Agent. As defined in the preamble hereto.
Term Loan. The Existing Term Loan to be amended and restated on the Closing
Date and maintained by the Banks pursuant to ss.4 hereof.
Term Loan Commitment. With respect to each Bank, the amount set forth
on Schedule 1 hereto as the amount of such Bank's commitment to amend and
restate the Existing Term Loan and to maintain the Term Loan, as the same may be
reduced from time to time; or if such Commitment is terminated pursuant to the
provisions hereof, zero.
Term Loan Commitment Percentage. With respect to each Bank, the
percentage set forth on Schedule 1 hereto as such Bank's percentage of the Total
Term Loan Commitment.
Term Loan Maturity Date. March 31, 2005.
Term Note(s). See ss.4.2.
Term Note Record. A Record with respect to a Term Note.
Test Period. In connection with the calculation of the financial
covenants set forth in ss.13 hereof following any Permitted Acquisition, the
period of all fiscal quarters (and any portion of a fiscal quarter) prior to the
date of such Permitted Acquisition included in the definition of such financial
covenant.
Total Commitment. The sum of the Total Revolving Credit Commitment and
the
<PAGE>
Total Term Loan Commitment, each as in effect from time to time.
Total Revolving Credit Commitment. The sum of the Revolving Credit
Commitments of the Banks, as in effect from time to time.
Total Term Loan Commitment. The sum of the Term Loan Commitments of the
Banks, as in effect from time to time.
Trust Securities. The 6 1/2% Trust Convertible Preferred Securities,
issued by Hvide Capital Trust, a Delaware statutory business trust and the 6
1/2% Convertible Subordinated Debentures due June 15, 2012 issued by the
Borrower to Hvide Capital Trust.
Type. As to any Revolving Credit Loan or all or any portion of the Term
Loan, its nature as a Base Rate Loan or a Eurodollar Rate Loan.
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 thereto adopted
by the Issuing Bank 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 Borrower does not reimburse the Issuing Bank and the other Banks on the date
specified in, and in accordance with, ss.5.2.
Vessel(s). Collectively, all vessels owned by the Borrower and its
Subsidiaries, and individually, any of such vessels.
Vessel Mortgages. Collectively, the several First Preferred Vessel or
Fleet Mortgages, whether dated on or after the Closing Date, entered into or to
be entered into between the Borrower and/or the Guarantors and the Documentation
Agent.
Voting Stock. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such document or
agreement as amended, restated, modified or supplemented from time to time
in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the singular.
<PAGE>
(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 the State of New York, have the meanings assigned to
them therein, with the term "instrument" being that defined under Article 9
of the Uniform Commercial Code.
(h) Reference to a particular "ss." refers to that section of this Credit
Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import shall
refer to this Credit Agreement as a whole and not to any particular section
or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of periods of time
from a specified date to a later specified date, the word "from" means
"from and including," the words "to" and "until" each mean "to but
excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are, however,
cumulative and are to be performed in accordance with the terms thereof.
(l) This Credit Agreement and the other Loan Documents are the result of
negotiation among, and have been reviewed by counsel to, among others, the
Agents, the Borrower and the Guarantors and are the product of discussions
and negotiations among all parties. Accordingly, this Credit Agreement and
the other Loan Documents are not intended to be construed against the
Agents or any of the Banks merely on account of either Agent's or any
Bank's involvement in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend.
Subject to the terms and conditions set forth in this Credit
<PAGE>
Agreement, each of the Banks severally agrees to lend to the Borrower and the
Borrower may borrow, repay, and reborrow from time to time from the Closing Date
up to but not including the Revolving Credit Maturity Date upon notice by the
Borrower to the Administrative Agent given in accordance with ss.2.6, such sums
as are requested by the Borrower up to a maximum aggregate amount outstanding
(after giving effect to all amounts requested) at any one time equal to such
Bank's Revolving Credit Commitment minus such Bank's Revolving Credit Commitment
Percentage of the sum of the Maximum Drawing Amount and all Unpaid Reimbursement
Obligations, provided that the sum of the outstanding amount of the Revolving
Credit Loans (after giving effect to all amounts requested) plus the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not at any time
exceed the Total Revolving Credit Commitment. The Revolving Credit Loans shall
be made pro rata in accordance with each Bank's Revolving Credit Commitment
Percentage. Each request for a Revolving Credit Loan hereunder shall constitute
a representation and warranty by the Borrower that the conditions set forth in
ss.14 and ss.15, in the case of the initial Revolving Credit Loans to be made on
the Closing Date, and ss.13, in the case of all other Revolving Credit Loans,
have been satisfied on the date of such request.
2.2. Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for the accounts of the Banks in accordance with their respective
Revolving Credit Commitment Percentages a commitment fee equal to the Applicable
Margin on the average daily amount during each calendar quarter or portion
thereof from the date hereof to the Revolving Credit Maturity Date by which the
Total Revolving Credit Commitment minus the sum of the Maximum Drawing Amount
and all Unpaid Reimbursement Obligations exceeds the outstanding amount of
Revolving Credit Loans during such calendar quarter. The commitment fee shall be
payable quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the Revolving Credit Maturity
Date or any earlier date on which the Revolving Credit Commitments shall
terminate.
2.3. Reduction of Total Revolving Credit Commitment. The Borrower shall
have the right at any time and from time to time upon three (3) Business Days
prior written notice to the Administrative Agent to reduce by $10,000,000 or an
integral multiple of $1,000,000 in excess thereof or terminate entirely the
Total Revolving Credit Commitment, whereupon the Revolving Credit Commitments of
the Banks shall be reduced pro rata in accordance with their respective
Revolving Credit Commitment Percentages of the amount specified in such notice
or, as the case may be, terminated. Promptly after receiving any notice of the
Borrower delivered pursuant to this ss.2.3, the Administrative Agent will notify
the Banks of the substance thereof. Upon the effective date of any such
reduction or termination, the Borrower shall pay to the Administrative Agent for
the respective accounts of the Banks, in accordance with their Revolving Credit
Commitment Percentages, the full amount of any commitment fee then accrued on
the amount of the reduction. No reduction or termination of the Revolving Credit
Commitments may be reinstated.
2.4. The Revolving Credit Notes. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of Exhibit A-1 hereto (each a "Revolving Credit Note"), dated as of the Closing
Date and completed with
<PAGE>
appropriate insertions. One Revolving Credit Note shall be payable to the order
of each Bank in a principal amount equal to such Bank's Revolving Credit
Commitment or, if less, the outstanding amount of all Revolving Credit Loans
made by such Bank, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Bank to make or cause to be made, at or
about the time of the Drawdown Date of any Revolving Credit Loan or at the time
of receipt of any payment of principal on such Bank's Revolving Credit Note, an
appropriate notation on such Bank's Revolving Credit Note Record reflecting the
making of such Revolving Credit Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Revolving Credit Loans set forth on such
Bank's Revolving Credit Note 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 Revolving
Credit Note Record shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
2.5. Interest on Revolving Credit Loans. Except as otherwise provided
in ss.8.9,
(a) Each Revolving Credit Loan that is a Base Rate Loan shall
bear interest for the period commencing with the Drawdown Date thereof
and ending on the last day of the Interest Period with respect thereto
at the rate per annum equal to the Base Rate plus the Applicable
Margin.
(b) Each Revolving Credit Loan that is a Eurodollar Rate Loan
shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of the Interest Period with respect
thereto at the rate per annum equal to the Eurodollar Rate, determined
for such Interest Period plus the Applicable Margin.
(c) The Borrower promises to pay interest on each Revolving
Credit Loan in arrears on each Interest Payment Date with respect
thereto.
2.6. Requests for Revolving Credit Loans. The Borrower shall give to
the Administrative Agent written notice in the form of Exhibit B hereto (or
telephonic notice confirmed in a writing in the form of Exhibit B hereto) of
each Revolving Credit Loan requested hereunder (a "Loan Request") no less than
(i) 10:00 a.m. one Business Day prior to the proposed Drawdown Date of any Base
Rate Loan (which must be a Business Day) and (ii) three (3) Eurodollar Business
Days prior to the proposed Drawdown Date of any Eurodollar Rate Loan (which must
be a Business Day). Each such notice shall specify (A) the principal amount of
the Revolving Credit Loan requested, (B) the proposed Drawdown Date of such
Revolving Credit Loan, (C) the Interest Period for such Revolving Credit Loan
and (D) the Type of such Revolving Credit Loan. Promptly upon receipt of any
such notice, the Administrative Agent shall notify each of the Banks thereof.
Each Loan Request shall be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Revolving Credit Loan requested from the
Banks on the proposed Drawdown Date. Each Loan Request shall be in a minimum
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
<PAGE>
2.7. Conversion Options.
2.7.1. Conversion to Different Type of Revolving Credit Loan.
The Borrower may elect from time to time to convert any outstanding
Revolving Credit Loan to a Revolving Credit Loan of another Type,
provided that (i) with respect to any such conversion of a Eurodollar
Rate Loan to a Base Rate Loan, the Borrower shall give the
Administrative Agent prior written notice of such election not later
than 10:00 a.m. one Business Day prior to the proposed effective date
of such election; (ii) with respect to any such conversion of a Base
Rate Loan to a Eurodollar Rate Loan, the Borrower shall give the
Administrative Agent at least three (3) Eurodollar Business Days prior
written notice of such election; (iii) with respect to any such
conversion of a Eurodollar Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period
with respect thereto; and (iv) no Loan may be converted into a
Eurodollar Rate Loan when any Default or Event of Default has occurred
and is continuing. On the date on which such conversion is being made
each Bank shall take such action as is necessary to transfer its
Revolving Credit Commitment Percentage of such Revolving Credit Loans
to its Domestic Lending Office or its Eurodollar Lending Office, as the
case may be. All or any part of outstanding Revolving Credit Loans of
any Type may be converted into a Revolving Credit Loan of another Type
as provided herein, provided that any partial conversion shall be in an
aggregate principal amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof. Each Conversion Request relating to the
conversion of a Base Rate Loan to a Eurodollar Rate Loan shall be
irrevocable by the Borrower.
2.7.2. Continuation of Type of Revolving Credit Loan. Any
Revolving Credit Loan of any Type may be continued as a Revolving
Credit Loan of the same Type upon the expiration of an Interest Period
with respect thereto by compliance by the Borrower with the notice
provisions contained in ss.2.7.1; provided that no Eurodollar Rate Loan
may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to a
Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of
Default of which officers of the Administrative Agent active upon the
Borrower's account have actual knowledge. In the event that the
Borrower fails to provide any such notice with respect to the
continuation of any Eurodollar Rate Loan as such, then such Eurodollar
Rate Loan shall be automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating thereto. The
Administrative Agent shall notify the Banks promptly when any such
automatic conversion contemplated by this ss.2.7 is scheduled to occur.
2.7.3. Eurodollar Rate Loans. Any conversion to or from
Eurodollar Rate Loans shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate
principal amount of all Eurodollar Rate Loans having the same Interest
Period shall not be less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof. No more than eight (8) Eurodollar Rate
Loans shall be outstanding at one time.
<PAGE>
2.8. Funds for Revolving Credit Loans.
2.8.1. Funding Procedures. Not later than 12:00 noon (New York
time) on the proposed Drawdown Date of any Revolving Credit Loans, each
of the Banks will make available to the Administrative Agent, at the
Administrative Agent's Head Office, in immediately available funds, the
amount of such Bank's Revolving Credit Commitment Percentage of the
amount of the requested Revolving Credit Loans. Upon receipt from each
Bank of such amount, and upon receipt of the documents required by
ss.ss.14 and 15 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Administrative Agent will make
available to the Borrower the aggregate amount of such Revolving Credit
Loans made available to the Administrative Agent by the Banks. The
failure or refusal of any Bank to make available to the Administrative
Agent at the aforesaid time and place on any Drawdown Date the amount
of its Revolving Credit Commitment Percentage of the requested
Revolving Credit Loans shall not relieve any other Bank from its
several obligation hereunder to make available to the Administrative
Agent the amount of such other Bank's Revolving Credit Commitment
Percentage of any requested Revolving Credit Loans.
2.8.2. Advances by Administrative Agent. The Administrative
Agent may, unless notified to the contrary by any Bank prior to a
Drawdown Date, assume that such Bank has made available to the
Administrative Agent on such Drawdown Date the amount of such Bank's
Revolving Credit Commitment Percentage of the Revolving Credit Loans to
be made on such Drawdown Date, and the Administrative Agent may (but it
shall not be required to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. If any Bank makes
available to the Administrative Agent such amount on a date after such
Drawdown Date, such Bank shall pay to the Administrative Agent on
demand an amount equal to the product of (i) the average computed for
the period referred to in clause (iii) below, of the weighted average
interest rate paid by the Administrative Agent for federal funds
acquired by the Administrative Agent during each day included in such
period, times (ii) the amount of such Bank's Revolving Credit
Commitment Percentage of such Revolving Credit Loans, times (iii) a
fraction, the numerator of which is the number of days that elapse from
and including such Drawdown Date to the date on which the amount of
such Bank's Revolving Credit Commitment Percentage of such Revolving
Credit Loans shall become immediately available to the Administrative
Agent, and the denominator of which is 365. A statement of the
Administrative Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be prima facie evidence of the amount
due and owing to the Administrative Agent by such Bank. If the amount
of such Bank's Revolving Credit Commitment Percentage of such Revolving
Credit Loans is not made available to the Administrative Agent by such
Bank within three (3) Business Days following such Drawdown Date, the
Administrative Agent shall be entitled to recover such amount from the
Borrower on demand, with interest thereon at the rate per annum
applicable to the Revolving Credit Loans made on such Drawdown Date.
<PAGE>
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. Maturity. The Borrower promises to pay on the Revolving Credit
Maturity Date, and there shall become absolutely due and payable on the
Revolving Credit Maturity Date, all of the Revolving Credit Loans outstanding on
such date, together with any and all accrued and unpaid interest thereon.
3.2. Mandatory Repayments of Revolving Credit Loans. If at any time the
sum of the aggregate outstanding amount of the Revolving Credit Loans, the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations exceeds the
Total Revolving Credit Commitment, then the Borrower shall immediately pay the
amount of such excess to the Administrative Agent for the respective accounts of
the Banks for application: first, to any Unpaid Reimbursement Obligations;
second to the Revolving Credit Loans; and third, to provide the Issuing Bank
cash collateral for Reimbursement Obligations as contemplated by ss.5.2(b) and
(c). Each payment of Unpaid Reimbursement Obligations or prepayment of Revolving
Credit Loans shall be allocated among the Banks, in proportion, as nearly as
practicable, to each Reimbursement Obligation or (as the case may be) the
respective unpaid principal amount of each Bank's Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion.
3.3. Optional Repayments of Revolving Credit Loans. The Borrower shall
have the right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
of any Eurodollar Rate Loans pursuant to this ss.3.3 may be made only on the
last day of the Interest Period relating thereto. The Borrower shall give the
Administrative Agent notice of any proposed prepayment pursuant to this ss.3.3
of Base Rate Loans not later than 11:00 a.m. New York time on the Business Day
prior to the date of such prepayment and of any proposed prepayment pursuant to
this ss.3.3 of Eurodollar Rate Loans not less than two (2) Eurodollar Business
Days prior to the date of such prepayment, in each case specifying the proposed
date of prepayment of Revolving Credit Loans, the principal amount to be prepaid
and which Loan is to be repaid. Each such partial prepayment of the Revolving
Credit Loans shall be in a minimum amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof, shall be accompanied by the payment of accrued
interest on the principal prepaid to the date of prepayment and shall be
applied, in the absence of instruction by the Borrower, first to the principal
of Base Rate Loans and then to the principal of Eurodollar Rate Loans. Each
partial prepayment shall be allocated among the Banks in accordance with their
respective Revolving Credit Commitment Percentages, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each Bank's Revolving
Credit Note, with adjustments to the extent practicable to equalize any prior
repayments not exactly in proportion.
4. THE TERM LOAN.
4.1. Commitment to Amend and Restate the Existing Term Loan. Subject to the
terms and conditions set forth in this Credit Agreement, each Bank agrees that,
on the Closing Date, the Existing Term Loan shall be amended and restated as set
forth herein. The Banks
<PAGE>
shall make arrangements among themselves such that the outstanding amount of the
Term Loan owing to each Bank on the Closing Date shall be an amount equal to
such Bank's Term Loan Commitment Percentage of the principal amount of
$150,000,000. The Borrower agrees that it shall, on the Closing Date, repay to
the Existing Term Loan Banks the amount of the Existing Term Loan in excess of
$150,000,000.
4.2. The Term Notes. The Term Loan shall be evidenced by separate
promissory notes of the Borrower in substantially the form of Exhibit A-2 hereto
(each a "Term Note"), dated the Closing Date and completed with appropriate
insertions. One Term Note shall be payable to the order of each Bank in a
principal amount equal to such Bank's Term Loan Commitment Percentage of the
Term Loan and representing the obligation of the Borrower to pay to such Bank
such principal amount or, if less, the outstanding amount of such Bank's Term
Loan Commitment Percentage of the Term Loan, plus interest accrued thereon, as
set forth below. The Borrower irrevocably authorizes each Bank to make or cause
to be made a notation on such Bank's Term Note Record reflecting the original
principal amount of such Bank's Term Loan Commitment Percentage of the Term Loan
and, at or about the time of such Bank's receipt of any principal payment on
such Bank's Term Note, an appropriate notation on such Bank's Term Note Record
reflecting such payment. The aggregate unpaid amount set forth on such Bank's
Term Note 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 Term Note Record shall not affect the
obligations of the Borrower hereunder or under any Term Note to make payments of
principal of and interest on any Term Note when due.
4.3. Schedule of Installment Payments of Principal of Term Loan. The
Borrower promises to pay to the Administrative Agent, for the account of the
Banks in accordance with their Term Loan Commitment Percentages, the principal
amount of the Term Loan in twenty-eight (28) consecutive quarterly payments,
each in the amount of $5,357,143, such installments to be due and payable on the
last day of each calendar quarter of each calendar year, commencing on June 30,
1998, with a final payment on the Term Loan Maturity Date in an amount equal to
the unpaid balance of the Term Loan.
4.4. Optional Prepayment of Term Loan. The Borrower shall have the
right at any time to prepay the Term Notes on or before the Term Loan Maturity
Date, as a whole, or in part, upon not less than five (5) Business Days prior
written notice to the Administrative Agent, without premium or penalty, provided
that (i) each partial prepayment shall be in the principal amount of $5,000,000
or an integral multiple thereof, (ii) no portion of the Term Loan bearing
interest at the Eurodollar Rate may be prepaid pursuant to this ss.4.4 except on
the last day of the Interest Period relating thereto, and (iii) each partial
prepayment shall be allocated among the Banks in accordance with their
respective Term Loan Commitment Percentages, in proportion, as nearly as
practicable, to the respective outstanding amount of each Bank's Term Note, with
adjustments to the extent practicable to equalize any prior prepayments not
exactly in proportion. Any prepayment of principal of the Term Loan shall
include all interest accrued to the date of prepayment and shall be applied
against the scheduled installments of principal due on the Term Loan in the
inverse order of maturity. No amount repaid with respect to the Term Loan may be
reborrowed.
<PAGE>
4.5. Interest on Term Loan.
4.5.1. Interest Rates. Except as otherwise provided in ss.8.9, the Term Loan
shall bear interest during each Interest Period relating to all or any
portion of the Term Loan at the following rates:
(a) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period determined by
reference to the Base Rate, the Term Loan or such portion
shall bear interest during such Interest Period at the rate
per annum equal to the Base Rate plus the Applicable Margin.
(b) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period determined by
reference to the Eurodollar Rate, the Term Loan or such
portion shall bear interest during such Interest Period at the
rate per annum equal to the Eurodollar Rate plus the
Applicable Margin, determined for such Interest Period.
The Borrower promises to pay interest on the Term Loan or any portion
thereof outstanding during each Interest Period in arrears on each
Interest Payment Date applicable to such Interest Period.
4.5.2. Notification by Borrower. The Borrower shall notify the Administrative
Agent, such notice to be irrevocable, at least three (3) Eurodollar
Business Days prior to the Drawdown Date of the Term Loan if all or any
portion of the Term Loan is to bear interest determined by reference to the
Eurodollar Rate. After the Existing Term Loan has been converted into the
Term Loan, the provisions ofss.2.7 shall apply mutatis mutandis with
respect to all or any portion of the Term Loan so that the Borrower may
have the same interest rate options with respect to all or any portion of
the Term Loan as it would be entitled to with respect to the Revolving
Credit Loans.
4.5.3. Amounts, etc. Any portion of the Term Loan bearing interest determined by
reference to the Eurodollar Rate relating to any Interest Period shall be
in a minimum amount of $5,000,000 or an integral multiple thereof. No
Interest Period relating to the Term Loan or any portion thereof bearing
interest determined by reference to the Eurodollar
<PAGE>
Rate shall extend beyond the date on which a regularly scheduled installment
payment of the principal of the Term Loan is to be made unless a portion of
the Term Loan at least equal to such installment payment has an Interest
Period ending on such date or is then bearing interest determined by
reference to the Base Rate.
5. LETTERS OF CREDIT.
5.1. Letter of Credit Commitments.
5.1.1. Commitment to Issue Letters of Credit. Subject to the terms and
conditions hereof and the execution and delivery by the Borrower of a
letter of credit application on the Issuing Bank's customary form (a
"Letter of Credit Application"), the Issuing Bank on behalf of the Banks
and in reliance upon the agreement of the Banks set forth inss.5.1.4 and
upon the representations and warranties of the Borrower contained herein,
agrees, in its individual capacity, to issue, extend and renew for the
account of the Borrower one or more standby or documentary letters of
credit (individually, a "Letter of Credit"), in such form as may be
requested from time to time by the Borrower and agreed to by the Issuing
Bank; 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 $20,000,000 at any one time and (b) the sum of
(i) the
<PAGE>
Maximum Drawing Amount, (ii) all Unpaid Reimbursement Obligations, and (iii) the
amount of all Revolving Credit Loans outstanding shall not exceed the Total
Revolving Credit Commitment.
5.1.2. Letter of Credit Applications. Each Letter of Credit Application shall be
completed to the satisfaction of the Issuing Bank. In the event that any
provision of any Letter of Credit Application shall be inconsistent with
any provision of this Credit Agreement, then the provisions of this Credit
Agreement shall, to the extent of any such inconsistency, govern.
5.1.3. Terms of Letters of Credit. Each Letter of Credit issued, extended or
renewed hereunder shall, among other things, (i) 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, and
(ii) have an expiry date no later than the date which is fourteen (14) days
(or, if the Letter of Credit is confirmed by a confirmer or otherwise
provides for one or more nominated persons, forty-five (45) days) prior to
the Revolving Credit Loan Maturity Date. Each Letter of Credit so issued,
extended or renewed shall be subject to the Uniform Customs.
5.1.4. Reimbursement Obligations of Banks. Each Bank severally agrees that it
shall be absolutely liable, without regard to the occurrence of any Default
or Event of Default or any other
<PAGE>
condition precedent whatsoever, to the extent of such Bank's Revolving Credit
Commitment Percentage, to reimburse the Issuing Bank on demand for the
amount of each draft paid by the Issuing Bank under each Letter of Credit
to the extent that such amount is not reimbursed by the Borrower pursuant
to ss.5.2 (such agreement for a Bank being called herein the "Letter of
Credit Participation" of such Bank).
5.1.5. Participations of Banks. Each such payment made by a Bank shall be
treated as the purchase by such Bank of a participating interest in the
Borrower's Reimbursement Obligation underss.5.2 in an amount equal to such
payment. Each Bank shall share in accordance with its participating
interest in any interest which accrues pursuant to ss.5.2.
5.2. Reimbursement Obligation of the Borrower. In order to induce the
Issuing Bank to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Administrative Agent, for the account of the Issuing Bank or (as the case may
be) the Banks, with respect to each Letter of Credit issued, extended or renewed
by the Issuing Bank hereunder,
(a) except as otherwise expressly provided in ss.5.2(b) and
(c), on each date that any draft presented under such Letter of Credit
is honored by the Issuing Bank, or the Issuing Bank otherwise makes a
payment with respect thereto, (i) the amount paid by the Issuing Bank
under or with respect to such Letter of Credit, and (ii) the amount of
any taxes, fees, charges or other costs and expenses whatsoever
incurred by the Issuing Bank or any other Bank in connection with any
payment made by the Issuing Bank or any other Bank under, or with
respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total
Revolving Credit Commitment to an amount less than the Maximum Drawing
Amount, an amount equal to such difference, which amount shall be held
by the Issuing Bank for the benefit of the Banks and the Issuing Bank
as cash collateral for all Obligations, and
<PAGE>
(c) upon the termination of the Total Revolving Credit
Commitment, or the acceleration of the Reimbursement Obligations with
respect to all Letters of Credit in accordance with ss.16, an amount
equal to the then Maximum Drawing Amount on all Letters of Credit,
which amount shall be held by the Issuing Bank for the benefit of the
Banks and the Issuing Bank as cash collateral for all Obligations.
Each such payment shall be made to the Administrative Agent at the
Administrative Agent's Head Office in immediately available funds and shall be
promptly remitted by the Agent to the Issuing Bank or such other Bank entitled
thereto. Interest on any and all amounts remaining unpaid by the Borrower under
this ss.5.2 at any time from the date such amounts become due and payable
(whether as stated in this ss.5.2, by acceleration or otherwise) until payment
in full (whether before or after judgment) shall be payable to the
Administrative Agent, for the accounts of the Issuing Bank and the other Banks,
on demand at the rate specified in ss.8.9 for overdue principal on the Revolving
Credit Loans.
5.3. Letter of Credit Payments. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the Issuing
Bank shall notify the Borrower 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 the Borrower fails to reimburse the Issuing
Bank as provided in ss.5.2 on or before the date that such draft is paid or
other payment is made by the Issuing Bank, the Issuing Bank may at any time
thereafter notify the Banks of the amount of any such Unpaid Reimbursement
Obligation. No later than 3:00 p.m. (New York time) on the Business Day next
following the receipt of such notice, each Bank shall make available to the
Administrative Agent, at the Administrative Agent's Head Office, in immediately
available funds, and the Administrative Agent shall promptly forward the same to
the Issuing Bank, such Bank's Revolving Credit Commitment Percentage of such
Unpaid Reimbursement Obligation, together with an amount equal to the product of
(i) the average, computed for the period referred to in clause (iii) below, of
the weighted average interest rate paid by the Issuing Bank for federal funds
acquired by the Issuing Bank during each day included in such period, times (ii)
the amount equal to such Bank's Revolving Credit Commitment Percentage of such
Unpaid Reimbursement Obligation, times (iii) a fraction, the numerator of which
is the number of days that elapse from and including the date the Issuing Bank
paid the draft presented for honor or otherwise made payment to the date on
which such Bank's Revolving Credit Commitment Percentage of such Unpaid
Reimbursement obligation shall become immediately available to the Issuing Bank,
and the denominator of which is 360. The responsibility of the Issuing Bank to
the Borrower and the Banks shall be only to determine that the documents
(including each draft) delivered under each Letter of Credit in connection with
such presentment shall be in conformity in all material respects with such
Letter of Credit.
5.4. Obligations Absolute. The Borrower's obligations under this ss.5
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 Borrower may have or have had against the Agents, the Issuing Bank,
any other Bank or any beneficiary of a Letter of Credit. The Borrower further
agrees with the Agents, the Issuing Bank, and the other Banks that the Agents,
the Issuing
<PAGE>
Bank, and the other Banks shall not be responsible for, and the Borrower's
Reimbursement Obligations under ss.5.2 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 Borrower, the
beneficiary of any Letter of Credit or any financing institution or other party
to which any Letter of Credit may be transferred or any claims or defenses
whatsoever of the Borrower against the beneficiary of any Letter of Credit or
any such transferee. The Agents, the Issuing Bank, and the other 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. The Borrower agrees that any action taken
or omitted by the Agents, the Issuing Bank, or any other Bank under or in
connection with each Letter of Credit and the related drafts and documents, if
done in good faith, shall be binding upon the Borrower and shall not result in
any liability on the part of the Agents, the Issuing Bank, or any other Bank to
the Borrower.
5.5. Reliance by Issuer. To the extent not inconsistent with ss.5.4,
the Issuing Bank 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 Issuing Bank. The Issuing Bank shall be fully
justified in failing or refusing to take any action under this Credit Agreement
unless it shall first have received such advice or concurrence of the Required
Banks as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the 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 Issuing Bank shall in all cases be fully protected in acting, or in
refraining from acting, under this Credit Agreement in accordance with a request
of the Required 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
Revolving Credit Notes or of a Letter of Credit Participation.
5.6. Letter of Credit Fees. The Borrower shall, on the last day of each
calendar quarter, pay a fee (in each case, a "Letter of Credit Fee") to the
Administrative Agent, for the pro rata accounts of the Banks in accordance with
their Revolving Credit Commitment Percentages, in an amount equal to the
Applicable Margin then applicable to Eurodollar Rate Loans on the average daily
Maximum Drawing Amount of all Letters of Credit outstanding during such quarter.
The Borrower shall also, on the last day of each calendar quarter, pay to the
Administrative Agent, for the account of the Issuing Bank, a fee (in each case,
a "Fronting Fee") in an amount equal to one-eighth of one percent (1/8%) on the
average daily Maximum Drawing Amount of all Letters of Credit outstanding during
such quarter. In respect of each Letter of Credit, the Borrower shall also pay
to the Issuing Bank, for the Issuing Bank's own account, at such other time or
times as such charges are customarily made by the Issuing Bank, the Issuing
Bank's customary issuance, amendment, negotiation or document examination and
other administrative fees as in effect from time to time.
<PAGE>
6. GUARANTY.
6.1. Guaranty of Payment and Performance. Each of the Guarantors and
the Borrower is a member of a group of interrelated and interdependent
corporations, the success of any one of which is dependent upon the success of
the others. Each of the Guarantors expects to receive substantial direct and
indirect benefits from the extensions of credit to the Borrower hereunder (which
benefits are hereby acknowledged). In consideration thereof, each of the
Guarantors hereby jointly and severally guarantees to the Agents and the Banks,
the full and punctual payment when due (whether at stated maturity, by required
pre-payment, by acceleration or otherwise), as well as the performance, of all
of the Obligations including all such which would become due but for the
operation of the automatic stay pursuant to ss.362(a) of the Federal Bankruptcy
Code and the operation of ss.ss.502(b) and 506(b) of the Federal Bankruptcy
Code. Each of the Guarantors is accepting joint and several liability hereunder
in consideration of the other Guarantors accepting joint and several liability
hereunder. This Guaranty is an absolute, unconditional and continuing guaranty
of the full and punctual payment and performance of all of the Obligations and
not of their collectability only and is in no way conditioned upon any
requirement that the Agents or any Bank first attempt to collect any of the
Obligations from the Borrower or resort to any collateral security or other
means of obtaining payment. Should the Borrower default in the payment or
performance of any of the Obligations, the obligations of the Guarantors
hereunder with respect to such Obligations in default shall, upon demand by the
Administrative Agent, become immediately due and payable to the Administrative
Agent, for the benefit of the Banks and the Agents, without demand or notice of
any nature, all of which are expressly waived by each of the Guarantors.
Payments by the Guarantors hereunder may be required by the Administrative Agent
on any number of occasions. All payments by any of the Guarantors hereunder
shall be made to the Administrative Agent, in the manner and at the place of
payment specified therefor in ss.8.1.1 hereof, for the account of the Banks and
the Agents.
6.2. Guarantors' Agreement to Pay Enforcement Costs, etc. Each of the
Guarantors further jointly and severally agrees, as the principal obligor and
not as a guarantor only, to pay to the Administrative Agent, on demand, all
reasonable costs and expenses (including court costs and reasonable legal
expenses, including the allocated cost of staff counsel) incurred or expended by
any Agent or any Bank in connection with the Obligations, this Guaranty and the
enforcement thereof, together with interest on amounts recoverable under this
ss.6 from the time when such amounts become due until payment, whether before or
after judgment, at the rate of interest for overdue principal set forth in
ss.8.9 hereof, provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall be reduced
to such maximum permitted amount.
6.3. Waivers by the Guarantors; Banks' Freedom to Act. Each of the
Guarantors agrees that the Obligations will be paid and performed strictly in
accordance with their respective terms, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of the Agents or any Bank with respect thereto. Each of the
Guarantors waives promptness, diligence, presentment, demand, protest, notice of
acceptance, notice of any Obligations incurred and all other notices of any
kind, all defenses which may be available by virtue of any valuation, stay,
moratorium law or other
<PAGE>
similar law now or hereafter in effect, any right to require the marshalling of
assets of the Borrower or any other entity or other Person primarily or
secondarily liable with respect to any of the Obligations, and all suretyship
defenses generally. Without limiting the generality of the foregoing, each of
the Guarantors agrees to the provisions of any instrument evidencing, securing
or otherwise executed in connection with any Obligation and agrees that the
obligations of such Guarantor hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by (i) the failure of the Agents or any
Bank to assert any claim or demand or to enforce any right or remedy against the
Borrower or any other Person primarily or secondarily liable with respect to any
of the Obligations; (ii) any extensions, compromise, refinancing, consolidation
or renewals of any Obligation; (iii) any change in the time, place or manner of
payment of any of the Obligations or any rescissions, waivers, compromise,
refinancing, consolidation or other amendments or modifications of any of the
terms or provisions of this Credit Agreement, the other Loan Documents or any
other agreement evidencing, securing or otherwise executed in connection with
any of the Obligations; (iv) the addition, substitution or release of any entity
or other Person primarily or secondarily liable for any Obligation; (v) the
adequacy of any rights which the Agents or any Bank may ave against any
collateral security or other means of obtaining repayment of any of the
Obligations; (vi) the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve any
rights which the Agents or any Bank might have in such collateral security or
the substitution, exchange, surrender, release, loss or destruction of any such
collateral security; or (vii) any other act or omission which might in any
manner or to any extent vary the risk of such Guarantor or otherwise operate as
a release or discharge of such Guarantor, all of which may be done without
notice to such Guarantor. To the fullest extent permitted by law, each of the
Guarantors hereby expressly waives any and all rights or defenses arising by
reason of (A) any "one action" or "anti-deficiency" law which would otherwise
prevent the Agents or any Bank from bringing any action, including any claim for
a deficiency, or exercising any other right or remedy (including any right of
set-off), against such Guarantor before or after the Agent's or such Bank's
commencement or completion of any foreclosure action, whether judicially, by
exercise of power of sale or otherwise, or (B) any other law which in any other
way would otherwise require any election of remedies by the Agents or any Bank.
6.4. Unenforceability of Obligations Against Borrower. If for any
reason the Borrower has no legal existence or is under no legal obligation to
discharge any of the Obligations, or if any of the Obligations have become
irrecoverable from the Borrower by reason of the Borrower's insolvency,
bankruptcy or reorganization or by other operation of law or for any other
reason, this Guaranty shall nevertheless be binding on each of the Guarantors to
the same extent as if each such Guarantor at all times had been the principal
obligor on all such Obligations. In the event that acceleration of the time for
payment of any of the Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of this Credit Agreement, the
other Loan Documents or any other agreement evidencing, securing or otherwise
executed in connection with any Obligation shall be immediately due and payable
by each of the Guarantors.
6.5. Subrogation; Subordination.
<PAGE>
6.5.1. Postponement of Rights Against Borrower. Until the
final payment and performance in full in cash of all of the Obligations
and the termination of the Commitments: none of the Guarantors shall
exercise any rights against the Borrower arising as a result of payment
by each such Guarantor hereunder, by way of subrogation, reimbursement,
restitution, contribution or otherwise, and none of the Guarantors will
prove any claim in competition with the Agents or any Bank in respect
of any payment hereunder in any bankruptcy, insolvency or
reorganization case or proceedings of any nature; none of the
Guarantors will claim any setoff, recoupment or counterclaim against
the Borrower in respect of any liability of any such Guarantor to the
Borrower; and each of the Guarantors waives any benefit of and any
right to participate in any collateral security which may be held by
the Agents or any Bank.
6.5.2. Subordination. The payment of any amounts due with
respect to any indebtedness of the Borrower for money borrowed or
credit received now or hereafter owed to any of the Guarantors is
hereby subordinated to the prior payment in full in cash of all of the
Obligations. Each of the Guarantors agrees that, after the occurrence
of any default in the payment or performance of any of the Obligations,
such Guarantor will not demand, sue for or otherwise attempt to collect
any such indebtedness of the Borrower to such Guarantor until all of
the Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, any of the Guarantors shall collect, enforce or
receive any amounts in respect of such indebtedness while any
Obligations are still outstanding, such amounts shall be collected,
enforced and received by such Guarantor as trustee for the Banks and
the Agents and be paid over to the Administrative Agent, for the
benefit of the Banks and the Agents, on account of the Obligations
without affecting in any manner the liability of the Guarantors under
the other provisions of this Guaranty.
6.5.3. Provisions Supplemental. The provisions of this ss.6.5
shall be supplemental to and not in derogation of any rights and
remedies of the Banks and the Agents under any separate subordination
agreement which an Agent may at any time and from time to time enter
into with any of the Guarantors for the benefit of the Banks and the
Agents.
6.6. Further Assurances. Each of the Guarantors agrees that it will
from time to time, at the request of the Agents, do all such things and execute
all such documents as the Agents may consider necessary or desirable to give
full effect to this Guaranty and to perfect and preserve the rights and powers
of the Banks and the Agents hereunder. Each of the Guarantors acknowledges and
confirms that such Guarantor itself has established its own adequate means of
obtaining from the Borrower on a continuing basis all information desired by
such Guarantor concerning the financial condition of the Borrower and that such
Guarantor will look to the Borrower and not to the Agents or any Bank in order
for such Guarantor to keep adequately informed of changes in the Borrower's
financial condition.
6.7. Reinstatement. Notwithstanding any termination of this Guaranty,
this Guaranty shall continue to be effective or be reinstated, if at any time
any payment made or value received with respect to any Obligation is rescinded
or must otherwise be returned by an
<PAGE>
Agent or any Bank upon the insolvency, bankruptcy or reorganization of the
Borrower or any Guarantor, or otherwise, all as though such payment had not been
made or value received.
6.8. Successors and Assigns. This Guaranty shall be binding upon each
of the Guarantors, its successors and assigns, and shall inure to the benefit of
the Agents and the Banks and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing sentence, each Bank
may, in accordance with the provisions of ss.22, assign or otherwise transfer
this Credit Agreement, the other Loan Documents or any other agreement or note
held by it evidencing, securing or otherwise executed in connection with the
Obligations, or sell participations in any interest therein, to any other
Person, and such other Person shall thereupon become vested, to the extent set
forth in the agreement evidencing such assignment, transfer or participation,
with all the rights in respect thereof granted to such Bank herein. None of the
Guarantors may assign any of its obligations hereunder.
6.9. Severability. It is the intention and agreement of the Guarantors,
the Agents and the Banks that the obligations of the Guarantors under this
Guaranty shall be valid and enforceable against the Guarantors to the maximum
extent permitted by applicable law. Accordingly, if any provision of this
Guaranty creating any obligation of any Guarantor shall be declared to be
invalid or unenforceable in any respect or to any extent, it is the stated
intention and agreement of the Guarantors, the Agents and the Banks that any
balance of the obligation created by such provision and all other obligations of
such Guarantor to the Agent and the Banks created by other provisions of this
Guaranty shall remain valid and enforceable. Likewise, if by final order, a
court of competent jurisdiction shall declare any sums which the Agents or the
Banks may be otherwise entitled to collect from the Guarantors under this
Guaranty to be in excess of those permitted under any law (including any federal
or state fraudulent conveyance or like statute or rule of law) applicable to the
obligations under this Guaranty, it is the stated intention and agreement of the
Guarantors, the Agents and the Banks that all sums not in excess of those
permitted under such applicable law shall remain fully collectible by the Agents
and the Banks from the Guarantors.
6.10. Limitation on Guaranty. Notwithstanding anything else set forth
in this Section 6, it is understood and agreed by the Borrower, the Guarantors,
the Agents and the Banks that the maximum liability of Seabulk Transmarine
Partnership, Ltd. under the Guaranty shall be limited to sixty-six and
two-thirds percent (66-2/3%) of the fair market value, from time to time, of the
United States Flag Vessel The Seabulk America, Official No. 961357.
7. FEES.
7.1. Agents' Fees. The Borrower shall pay to the Administrative Agent
and the Documentation Agent certain fees as provided in the Fee Letter.
8. CERTAIN GENERAL PROVISIONS.
8.1. Funds for Payments.
8.1.1. Payments to Administrative Agent. All payments of principal,
<PAGE>
interest, commitment fees, Letter of Credit Fees, Fronting Fees, and
any other amounts due hereunder or under any of the other Loan
Documents shall be made to the Administrative Agent, for the respective
accounts of the Banks and the Agents, at the Administrative Agent's
Head Office or at such other location in the New York, New York area
that the Administrative Agent may from time to time designate, in each
case in immediately available funds.
8.1.2. No Offset, etc. All payments by the Borrower hereunder
and under any of the other Loan Documents shall be made without setoff
or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein
unless the Borrower is compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Borrower with
respect to any amount payable by it hereunder or under any of the other
Loan Documents, the Borrower will pay to the Administrative Agent, for
the account of the Banks or (as the case may be) the Agents, on the
date on which such amount is due and payable hereunder or under such
other Loan Document, such additional amount in Dollars as shall be
necessary to enable the Banks or the Agents to receive the same net
amount which the Banks or the Agents would have received on such due
date had no such obligation been imposed upon the Borrower. The
Borrower will deliver promptly to the Administrative Agent certificates
or other valid vouchers for all taxes or other charges deducted from or
paid with respect to payments made by the Borrower hereunder or under
such other Loan Document.
8.1.3. Receipt of Funds By Administrative Agent.The Borrower
agrees that, on each day on which a payment is due hereunder with
respect to any Loan or Letter of Credit or under any Note, it will
deliver to the Administrative Agent, not later than 12:00 noon (New
York time), the amount so due on such day.
8.2. Computations. All computations of interest on the Base Rate Loans
and of commitment fees, Letter of Credit Fees, Fronting Fees, and other fees
hereunder shall be based on a 365/366-day year and paid for the actual number of
days elapsed. All computations of interest on the Eurodollar 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 Eurodollar Rate Loans, whenever a payment hereunder or under any of
the other Loan Documents becomes due on a day that is not a Business Day, the
due date for such payment shall be extended to the next succeeding Business Day,
and interest shall accrue during such extension. The outstanding amount of the
Loans as reflected on the Revolving Credit Note Records and Term Note Records
from time to time shall be considered correct and binding on the Borrower unless
within five (5) Business Days after receipt of any notice by the Administrative
Agent or any of the Banks of such outstanding amount, the Administrative Agent
or such Bank shall notify the Borrower to the contrary.
8.3. Inability to Determine Eurodollar Rate. In the event, prior to
the commencement
<PAGE>
of any Interest Period relating to any Eurodollar Rate Loan, the Administrative
Agent shall determine or be notified by the Required Banks that adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate that would
otherwise determine the rate of interest to be applicable to any Eurodollar Rate
Loan during any Interest Period, the Administrative Agent shall forthwith give
notice of such determination (which shall be conclusive and binding on the
Borrower and the Banks) to the Borrower and the Banks. In such event (i) any
Loan Request or Conversion Request with respect to Eurodollar Rate Loans shall
be automatically withdrawn and shall be deemed a request for Base Rate Loans,
(ii) each Eurodollar Rate Loan will automatically, on the last day of the then
current Interest Period relating thereto, become a Base Rate Loan, and (iii) the
obligations of the Banks to make Eurodollar Rate Loans shall be suspended until
the Administrative Agent or the Required Banks determines that the circumstances
giving rise to such suspension no longer exist, whereupon the Administrative
Agent or, as the case may be, the Administrative Agent upon the instruction of
the Required Banks, shall so notify the Borrower and the Banks.
8.4. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Borrower and the other Banks and thereupon (i) the
commitment of such Bank to make Eurodollar Rate Loans or convert Loans of
another Type to Eurodollar Rate Loans shall forthwith be suspended and (ii) such
Bank's Loans then outstanding as Eurodollar Rate Loans, if any, shall be
converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such Eurodollar Rate Loans or within such earlier period as
may be required by law. The Borrower hereby agrees promptly to pay the
Administrative Agent for the account of such Bank, upon demand by such Bank, any
additional amounts necessary to compensate such Bank for any costs incurred by
such Bank in making any conversion in accordance with this ss.8.4, including any
interest or fees payable by such Bank to lenders of funds obtained by it in
order to make or maintain its Eurodollar Rate Loans hereunder.
8.5. 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 Administrative 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 Administrative Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect to
this Credit Agreement, any Letter of Credit, the other Loan Documents, such
Bank's Commitment or the Loans (other than taxes based upon or measured by
the income or profits of such Bank or the Administrative 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
<PAGE>
Loans or any other amounts payable to any Bank or the Administrative
Agent under this Credit Agreement or any of the other Loan Documents,
or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit 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 Administrative Agent any other conditions or
requirements with respect to this Credit Agreement, any Letter of Credit,
the other Loan Documents, the Loans, such Bank's Commitment, 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 or such Bank's Commitment or any Letter of Credit,
or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation, or other amount payable to such Bank
or the Administrative Agent hereunder on account of such
Bank's Commitment, any of the Loans or any Letter of Credit,
or
(iii) to require such Bank or the Administrative
Agent to make any payment or to forego any interest,
Reimbursement Obligation, or other sum payable hereunder, the
amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by such Bank or the
Administrative Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Bank or
(as the case may be) the Administrative Agent at any time and from time to time
and as often as the occasion therefor may arise, pay to such Bank or the
Administrative Agent such additional amounts as will be sufficient to compensate
such Bank or the Administrative Agent for such additional cost, reduction,
payment or foregone interest or other sum.
8.6. Capital Adequacy. If after the date hereof any Bank or the
Administrative Agent determines that (i) 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 (ii)
compliance by such Bank or the Administrative Agent or any corporation
controlling such Bank or the Administrative Agent with any law, governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) of any such entity regarding
<PAGE>
capital adequacy, has the effect of reducing the return on such Bank's or the
Administrative Agent's commitment with respect to any Loans to a level below
that which such Bank or the Administrative Agent could have achieved but for
such adoption, change or compliance (taking into consideration such Bank's or
the Administrative 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 Administrative Agent to be
material, then such Bank or the Administrative Agent may notify the Borrower of
such fact. To the extent that the amount of such reduction in the return on
capital is not reflected in the Base Rate, the Borrower agrees to pay such Bank
or (as the case may be) the Administrative 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 Administrative Agent of a
certificate in accordance with ss.8.7 hereof. Each Bank shall allocate such cost
increases among its customers in good faith and on an equitable basis.
8.7. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.ss.8.5 or 8.6 and a brief explanation of such amounts
which are due, submitted by any Bank or the Administrative Agent to the
Borrower, shall be conclusive, absent manifest error, that such amounts are due
and owing.
8.8. Indemnity. The Borrower agrees to indemnify each Bank and to hold
each Bank harmless from and against any loss, cost or expense (including loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (i)
default by the Borrower in payment of the principal amount of or any interest on
any Eurodollar Rate Loans as and when due and payable, including any such loss
or expense arising from interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain its Eurodollar Rate Loans, (ii)
default by the Borrower in making a borrowing or conversion after the Borrower
has given (or is deemed to have given) a Loan Request, notice (in the case of
all or any portion of the Term Loan pursuant to ss.4.5) or a Conversion Request
relating thereto in accordance with ss.2.6 or ss.2.7 or ss.4.5 or (iii) the
making of any payment of a Eurodollar 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 such Bank to lenders of funds obtained by it in order to maintain any
such Loans.
8.9. Interest After Default.
8.9.1. Overdue Amounts. Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other
overdue amounts payable hereunder or under any of the other Loan
Documents shall bear interest compounded monthly and payable on demand
at a rate per annum equal to two percent (2%) above the Base Rate plus
the Applicable Margin until such amount shall be paid in full (after as
well as before judgment).
8.9.2. Amounts Not Overdue. During the continuance of a
Default or an Event of Default the principal of the Revolving Credit
Loans and the Term Loan not overdue shall, until such Default or Event
of Default has been cured or remedied or such Default or Event of
Default has been waived by the Required Banks pursuant to
<PAGE>
ss.29, bear interest at a rate per annum equal to the greater of (i)
two percent (2%) above the rate of interest otherwise applicable to
such Loans pursuant to ss.2.5 or ss.4.5, as the case may be, and (ii)
the rate of interest applicable to overdue principal pursuant to
ss.8.9.1.
8.10. Replacement of Banks. If any Bank (an "Affected Bank") (i) makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to ss.ss.8.5 or 8.6, (ii) is unable to make or maintain
Eurodollar Rate Loans as a result of a condition described in ss.8.4 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 Borrower
may, 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 ss.8.4 to be applicable), or default, as the case may
be, by notice (a "Replacement Notice") in writing to the Agents and such
Affected Bank (A) request the Affected Bank to cooperate with the Borrower in
obtaining a replacement bank satisfactory to the Agents and the Borrower (the
"Replacement Bank"); (B) request the non-Affected Banks to acquire and assume
all of the Affected Bank's Loans, Revolving Credit Commitment and Term Loan
Commitment as provided herein, but none of such Banks shall be under an
obligation to do so; or (C) designate a Replacement Bank reasonably satisfactory
to the Agents. 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 ss.22, all of its Commitments, Loans, 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, (ii) prior to any such assignment, the
Borrower shall have paid to such Affected Bank all amounts properly demanded and
unreimbursed under ss.ss.8.5, 8.6 and 8.7, and (iii) no such assignment shall be
effective (A) while any Default or Event of Default shall have occurred and be
continuing or (B) until the Borrower shall have paid the Administrative Agent an
administration fee of $3,000 if such Replacement Bank is not already a Bank
under this Credit Agreement. Upon the effective date of such assignment, the
Borrower 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.
9. COLLATERAL SECURITY AND GUARANTIES.
(a) The Obligations shall be guaranteed pursuant to the terms of the
Guaranty. The Borrower shall notify the Agents of the acquisition or formation
of any new Subsidiary not less than five (5) Business Days prior to such
acquisition or formation. The Borrower shall, at the request of either Agent,
promptly, and in any event within ten (10) Business Days of such request, cause
each of its Subsidiaries which is not a Guarantor (a "Non-Guarantor Subsidiary")
to (i) execute and deliver to each of the Banks and the Agents a guaranty which
<PAGE>
is substantially in the form of the Guaranty and which is satisfactory to the
Banks and the Agents in all respects and (ii) execute and deliver to each of the
Banks and the Agents all other documents and instruments, including, without
limitation, corporate authority documents and legal opinions, as the Agents may
reasonably request in connection with the delivery of such guaranty; provided,
that the provisions of this ss.9 shall not apply to (i) Seabulk Chemical
Carriers, Inc., so long as it shall be contractually prohibited from delivering
a guaranty of the Obligations or (ii) Seabulk Offshore Chartering, Inc..
(b) The Obligations shall, to the extent required by ss.13.4 hereof, be
secured by a first priority perfected preferred mortgage and security interest
in favor of the Documentation Agent, for the benefit of the Banks and the
Agents, (i) in each of the Vessels listed on Schedule 10.19 and on additional
Vessels as may be required by ss.13.4, (ii) in certain other assets of the
Borrower and its Subsidiaries relating to such Vessels, including, without
limitation, accounts, chattel paper, contract rights, insurance proceeds,
inventory, equipment, general intangibles and goods, whether now owned or
hereafter acquired, and (iii) a first priority perfected pledge, in favor of the
Documentation Agent, for the benefit of the Banks and the Agent, of the capital
stock or other equity interests of each Subsidiary which owns a Vessel which is
subject to a Vessel Mortgage.
10. REPRESENTATIONS AND WARRANTIES.
The Borrower and each Guarantor represents and warrants to the Banks
and the Agents as follows:
10.1. Corporate Authority.
10.1.1. Incorporation; Good Standing. Each of the Borrower and
its Subsidiaries (i) is a corporation or limited partnership, as the
case may be, duly organized, validly existing and in good standing
under the laws of its state of incorporation or organization, (ii) has
all requisite corporate or limited partnership power to own its
property and conduct its business as now conducted and as presently
contemplated, and (iii) is in good standing as a foreign corporation or
a foreign limited partnership, as the case may be, and is duly
authorized to do business in each jurisdiction where such qualification
is necessary except where a failure to be so qualified would not have a
materially adverse effect on the business, assets or financial
condition of the Borrower or such Subsidiary.
10.1.2. Authorization. The execution, delivery and performance
of this Credit Agreement and the other Loan Documents to which the
Borrower or any of its Subsidiaries is or is to become a party and the
transactions contemplated hereby and thereby (i) are within the
corporate or limited partnership, as the case may be, authority of such
Person, (ii) have been duly authorized by all necessary corporate or
limited partnership, as the case may be, proceedings, (iii) do not
conflict with or result in any breach or contravention of any provision
of law, statute, rule or regulation to which the Borrower or any of its
Subsidiaries is subject or any judgment, order, writ, injunction,
license or permit applicable to the Borrower or any of its Subsidiaries
and
<PAGE>
(iv) do not conflict with any provision of the corporate charter,
bylaws, or partnership agreement of, or any agreement or other
instrument binding upon, the Borrower or any of its Subsidiaries.
10.1.3. Enforceability. The execution and delivery of this
Credit Agreement and the other Loan Documents to which the Borrower or
any of its Subsidiaries is or is to become a party will result in valid
and legally binding obligations of such Person enforceable against it
in accordance with the respective terms and provisions hereof and
thereof, except as enforceability is limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights and except to the extent
that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
10.2. Governmental Approvals. The execution, delivery and performance
by the Borrower and any of its Subsidiaries of this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Subsidiaries is or is
to become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of, or filing with, any governmental agency or
authority other than those already obtained.
10.3. Title to Properties; Leases. Except as indicated on Schedule 10.3
hereto, the Borrower and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
10.4. Fiscal Year; Financial Statements; Projections.
10.4.1. Fiscal Year, Fiscal Quarters. The Borrower and each of
its Subsidiaries has a fiscal year which is the twelve months ending on
December 31 of each calendar year and fiscal quarters ending on March
31, June 30, September 30, and December 31 of each calendar year.
10.4.2. Financial Statements. There has been furnished to each
of the Banks a consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, and a consolidated statement
of income of the Borrower and its Subsidiaries for the fiscal year then
ended, certified by Ernst & Young LLP. Such balance sheet and statement
of income have been prepared in accordance with generally accepted
accounting principles and fairly present the financial condition of the
Borrower as at the close of business on the date thereof and the
results of operations for the fiscal year then ended. There are no
contingent liabilities of the Borrower or any of its Subsidiaries as of
such date involving material amounts, known to the officers of the
Borrower, which were not disclosed in such balance sheet and the notes
related thereto.
<PAGE>
10.4.3. Projections. There has been furnished to each of the
Banks the financial forecasts for the Borrower and its Subsidiaries for
the fiscal years 1998 through 2002, dated February 2, 1998 (the
"Projections"). The Projections represent the good faith estimates of
the officers of the Borrower for the periods covered thereby and the
officers of the Borrower know of no material misstatements in or
omissions from such Projections.
10.5. No Material Changes, etc.; Solvency.
(a) Since the Balance Sheet Date there has occurred no materially
adverse change in the condition (financial or otherwise), operations,
performance, properties, or prospects of the Borrower and its Subsidiaries as
shown on or reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, or the consolidated statement of
income for the fiscal year then ended, other than changes in the ordinary course
of business that have not had any materially adverse effect either individually
or in the aggregate on the business or financial condition of the Borrower or
any of its Subsidiaries. Since the Balance Sheet Date, the Borrower has not made
any Distribution, except as permitted under ss.12.4.
(b) The Borrower and each of the Guarantors (before and after giving
effect to the transactions contemplated by this Agreement and the other Loan
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.
10.6. Franchises, Patents, Copyrights, etc. Each of the Borrower and
its Subsidiaries possesses all franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect of the foregoing,
adequate for the conduct of its business substantially as now conducted without
known conflict with any rights of others.
10.7. Litigation. Except as set forth in Schedule 10.7 hereto, there
are no actions, suits, proceedings or investigations of any kind pending or
threatened against the Borrower or any of its Subsidiaries before any court,
tribunal or administrative agency or board that, if adversely determined, might,
either in any case or in the aggregate, materially adversely affect the
properties, assets, financial condition or business of the Borrower and its
Subsidiaries or materially impair the right of the Borrower and its
Subsidiaries, considered as a whole, to carry on business substantially as now
conducted by them, or result in any substantial liability not adequately covered
by insurance, or for which adequate reserves are not maintained on the
consolidated balance sheet of the Borrower and its Subsidiaries, or which
question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
10.8. No Materially Adverse Contracts, etc. Except as disclosed on
Schedule 10.8, neither the Borrower nor any of its Subsidiaries is subject to
any charter, corporate or other
<PAGE>
legal restriction, or any judgment, decree, order, rule or regulation that has
or is expected in the future to have a materially adverse effect on the
business, assets or financial condition of the Borrower or any of its
Subsidiaries. Neither the Borrower nor any of its Subsidiaries is a party to any
contract or agreement that has or is expected, in the judgment of the Borrower's
officers, to have any materially adverse effect on the business of the Borrower
or any of its Subsidiaries.
10.9. Compliance with Other Instruments, Laws, etc. Neither the
Borrower nor any of its 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 Borrower or any of its Subsidiaries.
10.10. Tax Status. The Borrower and its Subsidiaries (i) have made or
filed all federal and state income and all other tax returns, reports and
declarations required by any jurisdiction to which any of them is subject, (ii)
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 (iii) 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 the
Borrower know of no basis for any such claim.
10.11. No Event of Default. No Default or Event of Default has occurred
and is continuing.
10.12. Holding Company and Investment Company Acts. Neither the
Borrower nor any of its 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.
10.13. Absence of Financing Statements, etc. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage, vessel 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 Borrower or any of its
Subsidiaries or any rights relating thereto.
10.14. Certain Transactions. Except for arm's length transactions
pursuant to which the Borrower or any of its Subsidiaries makes payments in the
ordinary course of business upon terms no less favorable than the Borrower or
such Subsidiary could obtain from third parties, none of the officers,
directors, or employees of the Borrower or any of its Subsidiaries
<PAGE>
is presently a party to any transaction with the Borrower or any of its
Subsidiaries (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrower, 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.
10.15. Employee Benefit Plans.
10.15.1. In General. Each Employee Benefit Plan and each
Guaranteed Pension 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 and the
bonding of fiduciaries and other persons handling plan funds as
required by ss.412 of ERISA. The Borrower has heretofore delivered to
the Administrative Agent the most recently completed annual report,
Form 5500, with all required attachments, and actuarial statement
required to be submitted under ss.103(d) of ERISA, with respect to each
Guaranteed Pension Plan.
10.15.2. Terminability of Welfare Plans. No Employee Benefit
Plan, which is an employee welfare benefit plan within the meaning of
ss.3(1) or ss.3(2)(B) of ERISA, provides benefit coverage subsequent to
termination of employment, except as required by Title I, Part 6 of
ERISA or the applicable state insurance laws. The Borrower 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
the Borrower without liability to any Person other than for claims
arising prior to termination.
10.15.3. Guaranteed Pension Plans. Each contribution required
to be made to a Guaranteed Pension Plan, whether required to be made to
avoid the incurrence of an accumulated funding deficiency, the notice
or lien provisions of ss.302(f) of ERISA, or otherwise, has been timely
made. No waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any Guaranteed
Pension Plan, and neither the Borrower nor any ERISA Affiliate is
obligated to or has posted security in connection with an amendment to
a Guaranteed Pension Plan pursuant to ss.307 of ERISA or ss.401(a)(29)
of the Code. No liability to the PBGC (other than required insurance
premiums, all of which have been paid) has been incurred by the
Borrower or any ERISA Affiliate with respect to any Guaranteed Pension
Plan and there has not been any ERISA Reportable Event (other than an
ERISA Reportable Event as to which the requirement of 30 days notice
has been waived), or any other event or condition which presents a
material risk of termination of any Guaranteed Pension Plan by the
PBGC. Based on the latest valuation of each Guaranteed Pension Plan
(which in each case occurred within twelve months of the date of this
representation), and on the actuarial methods and assumptions employed
for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of ss.4001 of ERISA did not
exceed the aggregate value of the
<PAGE>
assets of all such Guaranteed Pension Plans, disregarding for this
purpose the benefit liabilities and assets of any Guaranteed Pension
Plan with assets in excess of benefit liabilities.
10.15.4. Multiemployer Plans. Neither the Borrower nor any
ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan under
ss.4201 of ERISA or as a result of a sale of assets described in
ss.4204 of ERISA. Neither the Borrower nor any ERISA Affiliate has been
notified that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of ss.4241 or ss.4245 of ERISA or is at
risk of entering reorganization or becoming insolvent, or that any
Multiemployer Plan intends to terminate or has been terminated under
ss.4041A of ERISA.
10.16. Use of Proceeds.
10.16.1. General. The proceeds of the Loans shall be used to
refinance existing Indebtedness of the Borrower, for working capital and general
corporate purposes and to finance Permitted Acquisitions.
10.16.2. Regulations U and X. No portion of any Loan is to be
used for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221
and 224.
10.16.3. Ineligible Securities. No portion of the proceeds of
any Loan is to be used 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 and for thirty (30) days thereafter,
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 Borrower or any Subsidiary or
other Affiliate of the Borrower.
10.17. Environmental Compliance. Except as set forth on Schedule 10.17
hereto, none of the Borrower, its Subsidiaries or any operator of the 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, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended, the Superfund
Amendments and Reauthorization Act of 1986, the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state or local
statute, regulation, ordinance, order or decree relating to health, safety or
the environment (hereinafter "Environmental Laws"), which
<PAGE>
violation would have a material adverse effect on the environment or the
business, assets or financial condition of the Borrower or any of its
Subsidiaries.
10.18. Subsidiaries, etc. All Subsidiaries, direct and indirect, of the
Borrower are listed on Schedule 10.18 hereto. Except as set forth on Schedule
10.18 hereto, neither the Borrower nor any Subsidiary of the Borrower is engaged
in any joint venture or partnership with any other Person.
10.19. Concerning the Vessels. The name, official number, registered
owner, and jurisdiction of registration of each Vessel is set forth on Schedule
10.19 hereto. Each Vessel is operated in accordance with all applicable maritime
rules and regulations, including, without limitation, with respect to each
Vessel operated in the coastwise trade of the United States of America, the
Shipping Act of 1916, as amended and in effect, and the regulations promulgated
thereunder. Each Vessel is maintained and operated in compliance with all
applicable Environmental Laws.
10.20. Disclosure. None of this Credit Agreement or any of the other
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact (known to the Borrower or any of its Subsidiaries in the
case of any document or information not furnished by it or any of its
Subsidiaries) necessary in order to make the statements herein or therein not
misleading. There is no fact known to the Borrower or any of its Subsidiaries
which materially adversely affects, or which is reasonably likely in the future
to materially adversely affect, the business, assets, financial condition or
prospects of the Borrower or any of its Subsidiaries, exclusive of effects
resulting from changes in general economic conditions, legal standards or
regulatory conditions.
10.21. Perfection of Security Interest. All filings, assignments,
pledges and deposits of documents or instruments have been made and all other
actions have been taken that are necessary or advisable, under applicable law,
to establish and perfect the Documentation Agent's security interest in the
Collateral. The Collateral and the Documentation Agent's rights with respect to
the Collateral are not subject to any setoff, claims, withholdings, or other
defenses. The Borrower or a Guarantor party to one of the Security Documents is
the owner of the Collateral, free from any lien, security interest, encumbrance,
or any other claim or demand, except for Permitted Liens.
11. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE GUARANTORS.
The Borrower and each of the Guarantors covenants and agrees that, so
long as any Loan, Reimbursement Obligation, Letter of Credit or Note is
outstanding or any Bank has any obligation to make any Loans and the Issuing
Bank has any obligation to issue, extend or renew any Letter of Credit:
11.1. Punctual Payment. The Borrower 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, the Fronting Fees, the commitment fees,
the fees pursuant to ss.7 hereof and all other amounts provided for in this
Credit Agreement and the other Loan Documents to which
<PAGE>
the Borrower or any of its Subsidiaries is a party, all in accordance with the
terms of this Credit Agreement and such other Loan Documents.
11.2. Maintenance of Office. The Borrower will, and will cause each of
its Subsidiaries to, maintain its chief executive office in Fort Lauderdale,
Florida, or at such other place in the United States of America as the Borrower
or such Subsidiary shall designate upon written notice to the Administrative
Agent, where notices, presentations and demands to or upon the Borrower or such
Subsidiary in respect of the Loan Documents to which the Borrower or such
Subsidiary is a party may be given or made. The Borrower will give the Agents
thirty days prior written notice of any change in the location of its, or any of
its Subsidiaries', chief executive office.
11.3. Records and Accounts. The Borrower will (i) keep, and cause each
of its Subsidiaries to 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, (ii) maintain adequate accounts and reserves for
all taxes (including income taxes), depreciation, depletion, obsolescence and
amortization of its properties and the properties of its Subsidiaries,
contingencies, and other reserves, and (iii) at all times engage Ernst & Young
LLP or other independent certified public accountants satisfactory to the Agents
as the independent certified public accountants of the Borrower and its
Subsidiaries and will not permit more than thirty (30) days to elapse between
the cessation of such firm's (or any successor firm's) engagement as the
independent certified public accountants of the Borrower and its Subsidiaries
and the appointment in such capacity of a successor firm as shall be
satisfactory to the Agents.
11.4. Financial Statements, Certificates and Information. The
Borrower will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than
one hundred twenty (120) days after the end of each fiscal year of the
Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries and the consolidating balance sheet of the Borrower and
its Subsidiaries, each as at the end of such year, and the related
consolidated statement of income and consolidated statement of cash
flow and consolidating statement of income and consolidating statement
of cash flow for such year, each setting forth in comparative form the
figures for the previous fiscal year and all such statements to be in
reasonable detail, prepared in accordance with generally accepted
accounting principles, and all such consolidated statements to be
certified without qualification by Ernst & Young LLP or by other
independent certified public accountants satisfactory to the
Administrative Agent;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of
the Borrower, copies of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries and the unaudited consolidating balance
sheet of the Borrower and its Subsidiaries, each as at the end of such
quarter, and the related consolidated statement of income and
consolidated statement of cash flow and consolidating statement of
income and consolidating
<PAGE>
statement of cash flow for the portion of the Borrower'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 officer of the Borrower that
the information contained in such financial statements fairly presents
the financial position of the Borrower and its Subsidiaries on the date
thereof (subject to year-end adjustments);
(c) as soon as practicable, but in any event within thirty
(30) days after the end of each month in each fiscal year of the
Borrower, unaudited monthly consolidated financial statements of the
Borrower and its Subsidiaries for such month and unaudited monthly
consolidating financial statements of the Borrower and its Subsidiaries
for such month, each prepared in accordance with generally accepted
accounting principles;
(d) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement
certified by the principal financial or accounting officer of the
Borrower in substantially the form of Exhibit C hereto (the "Compliance
Certificate") and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in ss.13 and (if
applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date;
(e) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the Securities
and Exchange Commission or sent to the equity holders or debt holders
of the Borrower;
(f) as soon as the same become available and in any event not
later than January 31 of each year, an annual business plan of the
Borrower and its Subsidiaries on a consolidated basis for such fiscal
year and financial projections for the Borrower and its Subsidiaries on
a consolidated basis for the next succeeding three (3) fiscal years,
including statements of income and cash flow and balance sheets and the
assumptions underlying such plan, all such statements to be in
reasonable detail and certified by the chief financial officer of the
Borrower as a reasonable forecast of the anticipated financial
condition of the Borrower and its Subsidiaries on a consolidated basis
and business segment basis in respect of such fiscal years;
(g) not less frequently than once each calendar year, or more
frequently as determined by either Agent, appraisal reports in form and
substance and from independent appraisers satisfactory to the Agents,
stating the then current fair market value of each of the Vessels
subject to a Vessel Mortgage; all such appraisals to be conducted and
made at the expense of the Borrower; and
(h) from time to time such other financial data and
information (including accountants', management letters) as either
Agent or any Bank may reasonably request.
11.5. Notices.
<PAGE>
11.5.1. Defaults. The Borrower will promptly notify the
Administrative Agent and each of the Banks 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 Credit Agreement or
any other note, evidence of Indebtedness, indenture or other obligation
to which or with respect to which the Borrower or any of its
Subsidiaries is a party or obligor, whether as principal, guarantor,
surety or otherwise, the Borrower shall forthwith give written notice
thereof to the Administrative Agent and each of the Banks, describing
the notice or action and the nature of the claimed default.
11.5.2. Environmental Events. The Borrower will promptly give
notice to the Administrative Agent and each of the Banks (i) of any
material violation of any Environmental Law that the Borrower 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
that has the potential to materially adversely affect the assets,
liabilities, financial conditions or operations of the Borrower or any
of its Subsidiaries or the Documentation Agent's security interests
pursuant to the Security Documents and (ii) upon becoming aware
thereof, of any inquiry, proceeding, investigation, or other action,
including a notice from any agency of potential environmental
liability, of any 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 Borrower
or any of its Subsidiaries or the Documentation Agent's security
interests pursuant to the Security Documents.
11.5.3. Notice of Litigation and Judgments. The Borrower will,
and will cause each of its Subsidiaries to, give notice to the
Administrative Agent and each of the Banks in writing within fifteen
(15) days of becoming aware of any litigation or proceedings threatened
in writing or any pending litigation and proceedings affecting the
Borrower or any of its Subsidiaries or to which the Borrower or any of
its Subsidiaries is or becomes a party involving an uninsured claim
against the Borrower or any of its Subsidiaries that could reasonably
be expected to have a materially adverse effect on the Borrower or any
of its Subsidiaries and stating the nature and status of such
litigation or proceedings. The Borrower will, and will cause each of
its Subsidiaries to, give notice to the Administrative Agent and each
of the Banks, in writing, in form and detail satisfactory to the
Administrative Agent, within ten (10) days of any judgment not covered
by insurance, final or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $1,000,000.
11.5.4. Notification of Claim Against Collateral. The Borrower
will, immediately upon becoming aware thereof, notify the Agents and
each of the Banks in writing of any setoff, claims, withholdings or
other defenses to which any of the Collateral, or the Documentation
Agent's rights with respect to the Collateral, are subject.
11.6. Corporate Existence; Maintenance of Properties; Etc.
<PAGE>
(a) The Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate or limited partnership,
as the case may be, existence, rights and franchises and those of its
Subsidiaries.
(b) The Borrower (i) will cause all of its properties and those of its
Subsidiaries used or useful in the conduct of its business or the business of
its Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, (ii) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, and (iii) will, and will cause each of its Subsidiaries to,
continue to engage primarily in the businesses now conducted by them and in
related businesses; provided that nothing in this ss.11.6 shall prevent the
Borrower from discontinuing the operation and maintenance of any of its
properties or any of those of its Subsidiaries if such discontinuance is, in the
judgment of the Borrower, desirable in the conduct of its or their business and
that do not in the aggregate materially adversely affect the business of the
Borrower and its Subsidiaries on a consolidated basis.
11.7. Insurance. The Borrower will, and will cause each of its
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 reasonably satisfactory to the Administrative Agent.
The Borrower will, and will cause each of its Subsidiaries to, maintain
insurance on each Vessel subject to a Vessel Mortgage, in accordance with the
terms of such Vessel Mortgage.
11.8. Taxes. The Borrower will, and will cause each of its 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
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 the Borrower or
such Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and provided further that the Borrower and each Subsidiary of the
Borrower 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.
11.9. Inspection of Properties and Books. The Borrower shall permit the
Banks, through the Administrative Agent or any of the Banks' other designated
representatives, to visit and inspect any of the properties of the Borrower or
any of its Subsidiaries, to examine the books of account of the Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom), and to discuss
the affairs, finances and accounts of the Borrower and its Subsidiaries with,
and to be advised as to the same by, its and their officers, all at such
<PAGE>
reasonable times and intervals as the Administrative Agent or any Bank may
reasonably request.
11.10. Compliance with Laws, Contracts, Licenses, and Permits. The
Borrower will, and will cause each of its Subsidiaries to, comply with (i) in
all material respects, the applicable laws and regulations wherever its business
is conducted, including all Environmental Laws, (ii) the provisions of its
charter documents and by-laws, (iii) all agreements and instruments by which it
or any of its properties may be bound and (iv) all applicable decrees, orders,
and judgments. 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 Borrower or any of its Subsidiaries may fulfill
any of its obligations hereunder or any of the other Loan Documents to which the
Borrower or such Subsidiary is a party, the Borrower will, or (as the case may
be) will cause such Subsidiary to, immediately take or cause to be taken all
reasonable steps within the power of the Borrower or such Subsidiary to obtain
such authorization, consent, approval, permit or license and furnish the
Administrative Agent and the Banks with evidence thereof.
11.11. Employee Benefit Plans. The Borrower will (i) promptly upon
filing the same with the Department of Labor or Internal Revenue Service upon
request of the Administrative Agent, furnish to the Administrative Agent a copy
of the most recent actuarial statement required to be submitted under ss.103(d)
of ERISA and Annual Report, Form 5500, with all required attachments, in respect
of each Guaranteed Pension Plan and (ii) promptly upon receipt or dispatch,
furnish to the Administrative Agent any notice, report or demand sent or
received in respect of a Guaranteed Pension Plan under ss.ss.302, 4041, 4042,
4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan,
under ss.ss.4041A, 4202, 4219, 4242, or 4245 of ERISA.
11.12. Use of Proceeds. The Borrower will use the proceeds of the Loans
solely to convert existing Indebtedness of the Borrower to Loans hereunder, for
working capital and general corporate purposes and to finance Permitted
Acquisitions.
11.13. Concerning the Vessels; Citizenship. The Borrower will, and will
cause each of its Subsidiaries to operate each Vessel in compliance with all
applicable governmental rules, regulations and requirements, including, without
limitation, with respect to each Vessel operated in the coastwise trade of the
United States of America, the Shipping Act, 1916, as amended and in effect, and
all Environmental Laws. The Borrower shall, and shall cause each Subsidiary
owning a Vessel engaging in the coastwise trade of the United States of America
to, remain a "citizen of the United States" within the meaning of Section 2 of
the Shipping Act, 1916, as amended, for purposes of engaging in the coastwise
trade of the United States of America.
11.14. Further Assurances. The Borrower will, and will cause each of
its Subsidiaries to, cooperate with the Banks and the Administrative Agent and
execute such further instruments and documents as the Banks or the
Administrative Agent shall reasonably request to carry out to their satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
<PAGE>
11.15. Collateral Valuation. The Borrower shall, on or before March 15,
1998, cause to be delivered to the Agents appraisals from an appraiser and in
form and substance satisfactory to the Agents, with respect to each Vessel
subject to a Vessel Mortgage. The Agents shall be satisfied, based on such
appraisals, that the aggregate fair market value of the Vessels subject to the
Vessel Mortgages on such date is not less than $400,000,000.
12. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE
GUARANTORS.
The Borrower and each Guarantor covenants and agrees that, so long as
any Loan, Reimbursement Obligation, Letter of Credit or Note is outstanding or
any Bank has any obligation to make any Loans or the Issuing Bank has any
obligation to issue, extend or renew any Letter of Credit:
12.1. Restrictions on Indebtedness. The Borrower will not, and will not
permit any of its 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 Agents arising under
any of the Loan Documents;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business;
(c) Indebtedness incurred in connection with the acquisition
after the date hereof of any real or personal property by the Borrower
or such Subsidiary or under any Capitalized Lease, provided that (i)
the aggregate amount of such Indebtedness does not exceed seventy
percent (70%) of the fair market value (determined in good faith by the
Borrower) of the property so acquired (except that, with respect to not
more than $15,000,000 of Indebtedness permitted pursuant to this clause
(c), such Indebtedness may be in an amount up to one hundred percent
(100%) of the fair market value (determined in good faith by the
Borrower) of the property so acquired), (ii) the aggregate principal
amount of such Indebtedness of the Borrower and its Subsidiaries shall
not exceed the aggregate amount of $100,000,000 at any one time, and
(iii) immediately after the incurrence of such Indebtedness, and after
giving effect thereto, no Default or Event of Default shall have
occurred and be continuing;
(d) Indebtedness existing on the date hereof and listed and
described on Schedule 12.1 hereto;
(e) Indebtedness of a Subsidiary of the Borrower owing to the
Borrower or a Guarantor;
(f) Indebtedness in respect of the Senior Notes in an
aggregate principal amount not to exceed $350,000,000; and
<PAGE>
(g) additional unsecured Indebtedness of the Borrower incurred
after the Closing Date so long as no Default or Event of Default shall
have occurred and be continuing or would result therefrom.
12.2. Restrictions on Liens. The Borrower will not, and will not permit
any of its Subsidiaries to, (i) 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; (ii) 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; (iii) 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; or (iv) suffer to
exist for a period of more than thirty (30) 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; provided that the Borrower or any of its
Subsidiaries may create or incur or suffer to be created or incurred or to
exist:
(a) liens in favor of the Borrower on all or part of the
assets of Subsidiaries of the Borrower securing Indebtedness owing by
Subsidiaries of the Borrower to the Borrower;
(b) liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or liens to secure claims
for labor, material or supplies in respect of obligations not overdue;
(c) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(d) liens 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 the
Borrower or such Subsidiary 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) liens or claims of carriers, warehousemen, mechanics, ship
repairers and materialmen, and other like liens, in existence less than
120 days from the date of creation thereof in respect of obligations
which are either (i) not overdue or (ii) being contested in good faith
by the Borrower;
(f) encumbrances on Real Estate 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 the Borrower or a
Subsidiary of the Borrower is a party, and other minor liens or
encumbrances none of
<PAGE>
which in the opinion of the Borrower interferes materially with the use
of the property affected in the ordinary conduct of the business of the
Borrower and its Subsidiaries, which defects do not individually or in
the aggregate have a materially adverse effect on the business of the
Borrower individually or of the Borrower and its Subsidiaries on a
consolidated basis;
(g) liens existing on the date hereof and listed on Schedule
12.2 hereto;
(h) purchase money security interests in or purchase money
mortgages on real or personal property not constituting Collateral
acquired after the date hereof to secure purchase money Indebtedness of
the type and amount permitted by ss.12.1(c), incurred in connection
with the acquisition of such property, which security interests or
mortgages cover only the real or personal property so acquired and
secure only the debt incurred to acquire such property as permitted
under ss.12.1(c) and liens on the assets subject to Capitalized Leases
permitted under ss.12.1(c); provided that no Default or Event of
Default shall have occurred and be continuing or would result from the
grant of such security interest or mortgage;
(i) liens in favor of the Documentation Agent for the benefit
of the Banks and the Agents under the Loan Documents; and
(j) liens permitted pursuant to the Vessel Mortgages.
12.3. Restrictions on Investments. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within one (1) year from the date of
purchase by the Borrower;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of any Bank or any United States banks
having total assets in excess of $1,000,000,000;
(c) 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. ("Moody's") and not less than
"A 1" if rated by Standard and Poor's Rating Group ("S&P"); provided
that such Investment in such commercial paper otherwise permitted
hereunder shall be permitted if such commercial paper is rated either
(i) not less than "P 2" by Moody's and "A 1" by S&P or (ii) not less
than "A 2" by S&P and "P 1" by Moody's;
(d) Investments existing on the date hereof and listed on
Schedule 12.3 hereto;
(e) Investments with respect to Indebtedness permitted by
ss.12.1(e) so long as
<PAGE>
such entities remain Subsidiaries of the Borrower and Guarantors
hereunder;
(f) Investments consisting of the Guaranty and Investments by
the Borrower in the Guarantors;
(g) Investments consisting of promissory notes received as
proceeds of asset dispositions permitted by ss.12.5.2;
(h) Investments in Permitted Acquisitions; and
(i) Investments consisting of loans and advances to employees
for moving, entertainment, travel and other similar expenses in the
ordinary course of business not to exceed $500,000 in the aggregate at
any time outstanding.
12.4. Distributions.
(a) The Borrower will not make any Distributions; provided
that so long as no Default or Event of Default shall have occurred and
be continuing or would result from the making of such Distribution, the
Borrower may make Distributions consisting of dividends on its Class A
Common Stock and Class B Common Stock in an aggregate amount in any
fiscal year not to exceed fifty percent (50%) of Consolidated Net
Income for such fiscal year.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to, create or permit to exist any restriction on the
ability of any Subsidiary of the Borrower to pay dividends to the
Borrower.
12.5. Merger, Consolidation and Disposition of Assets.
12.5.1. Mergers and Acquisitions. The Borrower will not, and
will not permit any of its Subsidiaries to, become a party to any
merger or consolidation except the merger or consolidation of one or
more of the Subsidiaries of the Borrower with and into the Borrower or
a Guarantor, with the Borrower or such Guarantor being the surviving
corporation of such merger or consolidation, or the merger or
consolidation of two or more Non-Guarantor Subsidiaries; provided that,
in each case, no Default or Event of Default shall have occurred and be
continuing, or would result from such merger or consolidation. The
Borrower will not, and will not permit any of its Subsidiaries to,
effect any asset acquisition or stock acquisition, other than (i)
Permitted Acquisitions and (ii) the acquisition of assets in the
ordinary course of business consistent with past practices.
12.5.2. Disposition of Assets. The Borrower will not, and will
not permit any of its Subsidiaries to, become a party to or agree to or
effect any disposition of assets, other than (a) the sale of inventory
and the disposition of assets no longer used or useful in the business
or operations of the Borrower, in each case in the ordinary course of
business consistent with past practices; (b) the transfer of assets
from any
<PAGE>
Subsidiary of the Borrower to the Borrower or a Guarantor or from any
Non-Guarantor Subsidiary to the Borrower or another Subsidiary of the
Borrower; and (c) other dispositions of assets not otherwise permitted
pursuant to the foregoing clauses of this ss.12.5.2, provided that the
aggregate fair market value of the assets so disposed of in any period
of twelve (12) consecutive months shall not exceed $10,000,000.
12.6. Sale and Leaseback. The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby the Borrower or any Subsidiary of the Borrower shall sell or transfer
any property owned by it in order then or thereafter to lease such property or
lease other property that the Borrower or any Subsidiary of the Borrower intends
to use for substantially the same purpose as the property being sold or
transferred.
12.7. Compliance with Environmental Laws. The Borrower will not, and
will not permit any of its Subsidiaries to, (i) except in compliance with all
applicable laws, use any of the Real Estate or any portion thereof for the
handling, processing, storage or disposal of hazardous substances, (ii) cause or
permit to be located on any of the Real Estate any underground tank or other
underground storage receptacle for hazardous substances, (iii) except in
compliance with all applicable laws, generate any hazardous substances on any of
the Real Estate, (iv) conduct any activity at any Real Estate, on any Vessel, 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 from any Vessel, if
such activity or release could reasonably be expected to have a material adverse
effect on the environment or the business, assets or financial condition of the
Borrower or any of its Subsidiaries or (v) otherwise conduct any activity at any
Real Estate or use any Real Estate or operate any Vessel in any manner that
would violate any Environmental Law or bring such Real Estate or such Vessel in
violation of any Environmental Law.
12.8. Trust Securities; Senior Notes.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, amend, supplement or otherwise modify the terms of any
of the Trust Securities or prepay, redeem or repurchase any of the
Trust Securities; provided, that the Borrower and any of its
Subsidiaries may redeem the Trust Securities so long as (i) immediately
after, and after giving effect to such redemption, no Default or Event
of Default shall have occurred and be continuing and (ii) on the date
of such redemption the average sale price of the Borrower's Class A
Common Stock on The Nasdaq National Market is at least $2.00 above the
"conversion price" relating to the conversion of the Trust Securities
into the Class A Common Stock of the Borrower, as such conversion price
is adjusted pursuant to the terms of the Trust Securities.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, amend, supplement or otherwise modify any of the terms
of the Senior Notes or the Senior Note Indenture, or prepay, redeem,
repurchase or defease any of the Senior
<PAGE>
Notes.
12.9. Employee Benefit Plans. Neither the Borrower nor any ERISA
Affiliate will
(a) engage in any "prohibited transaction" within the meaning
of ss.406 of ERISA or ss.4975 of the Code which could result in a
material liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in ss.302 of
ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of the Borrower or any of its Subsidiaries pursuant to ss.302(f)
or ss.4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances
requiring the posting of security pursuant to ss.307 of ERISA or ss.
401(a)(29) of the Code; or
(e) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of ss.4001 of ERISA) of
all Guaranteed Pension Plans exceeding the value of the aggregate
assets of such Plans, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess of
benefit liabilities.
12.10. Business Activities. The Borrower will not, and will not permit
any of its Subsidiaries to, engage directly or indirectly (whether through
Subsidiaries or otherwise) in any type of business other than the businesses
conducted by them on the Closing Date and in related businesses.
12.11. Fiscal Year; Fiscal Quarters. The Borrower will not, and will
not permit any of it Subsidiaries to, change the date of the end of its fiscal
year or any of its fiscal quarters from that set forth in ss.10.4.1.
12.12. Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, engage in any transaction with any
Affiliate (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any such
Affiliate or, to the knowledge of the Borrower, any corporation, partnership,
trust or other entity in which any such Affiliate has a substantial interest or
is an officer, director, trustee or partner, on terms more favorable to such
Person than would have been obtainable on an arm's-length basis in the ordinary
course of business.
13. FINANCIAL COVENANTS OF THE BORROWER.
<PAGE>
The Borrower covenants and agrees that, so long as any Loan,
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Issuing Bank has any Obligation to
issue, extend or renew any Letter of Credit:
13.1. Leverage Ratio. The Borrower will not permit the Leverage Ratio,
determined on a Pro Forma Basis at the end of each fiscal quarter of the
Borrower ending during a period set forth in the table below to exceed the ratio
set forth opposite such period in such table:
Period Maximum Ratio
Closing Date through June 29, 1999 4.00:1.00
June 30, 1999 and thereafter 3.50:1.00
13.2. Debt Service Coverage Ratio. The Borrower will not permit the
Debt Service Coverage Ratio, determined on a Pro Forma Basis at the end of each
fiscal quarter of the Borrower, to be less than 3.0:1.0.
13.3. Indebtedness to Net Worth Ratio. The Borrower will not permit the
ratio of (a) Consolidated Total Indebtedness to (b) Consolidated Net Worth, at
any time during a period set forth in the table below to exceed the ratio set
forth opposite such period in such table:
<PAGE>
Period Maximum Ratio
Closing Date through December 30, 1998 2.25:1.00
December 31, 1998 through June 29, 1999 1.75:1.00
June 30, 1999 and thereafter 1.50:1.00
13.4. Collateral Coverage Ratio. The Borrower will not, at any time,
permit the ratio of (a) the aggregate fair market value of each of the Vessels
subject to a first priority perfected mortgage in favor of the Documentation
Agent pursuant to the Security Documents, as determined pursuant to independent
appraisals as shall be in form and substance satisfactory to the Agents to (b)
the sum of the aggregate outstanding principal amount of Revolving Credit Loans
and the Term Loan, and all accrued and unpaid interest thereon, plus the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations, to be less than
1.25:1.00.
14. CLOSING CONDITIONS.
The obligations of the Banks to amend and restate the Existing
Revolving Credit Loans and the Existing Term Loan and to make the initial
Revolving Credit Loans and of the Issuing Bank to issue any initial Letter of
Credit on the Closing Date shall be subject to the satisfaction of the following
conditions precedent on or prior to February 20, 1998:
14.1. Loan Documents. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document.
14.2. Certified Copies of Charter Documents. Each of the Banks shall
have received from the Borrower and each of 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 (i) its charter or other incorporation documents as in
effect on such date of certification, and (ii) its by-laws as in effect on such
date.
14.3. Corporate, Action. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and each of its Subsidiaries
of this Credit 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.
14.4. Incumbency Certificate. The Administrative Agent shall have
received from the Borrower and each of its Subsidiaries an incumbency
certificate, dated as of the Closing Date, signed by a duly authorized officer
of the Borrower or such Subsidiary, and giving the name
<PAGE>
and bearing a specimen signature of each individual who shall be authorized: (i)
to sign, in the name and on behalf of each of the Borrower or such Subsidiary,
each of the Loan Documents to which the Borrower or such Subsidiary is or is to
become a party; (ii) in the case of the Borrower, to make Loan Requests and
Conversion Requests and to apply for Letters of Credit; and (iii) to give
notices and to take other action on its behalf under the Loan Documents.
14.5. Certificates of Insurance. The Agents shall have received (i) 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 hereof and the Security Documents and (ii) certified copies of
all policies evidencing such insurance (or certificates therefor signed by the
insurer or an agent authorized to bind the insurer).
14.6. Opinions of Counsel. Each of the Banks and the Agents shall have
received a favorable legal opinion addressed to the Banks and the Agents, dated
as of the Closing Date, in form and substance satisfactory to the Banks and the
Agents, from (a) Gene Douglas, Esq., counsel to the Borrower and its
Subsidiaries, (b) Dyer, Ellis & Joseph, special counsel to the Borrower and its
Subsidiaries, and (c) Bingham Dana LLP, special counsel to the Agents.
14.7. Payment of Fees. The Borrower shall have paid to the
Administrative Agent, for the account of the Banks, the Agents or the Arrangers,
as appropriate, the fees to be paid on the Closing Date.
14.8. Perfection Certificates and Search Results. The Agents shall have
received from the Borrower and each of its Subsidiaries owning Vessels which are
subject to a Vessel Mortgage a Perfection Certificate (as defined in the
Security Agreements) and the results of UCC and maritime registry searches with
respect to the Collateral and the other assets of the Borrower and its
Subsidiaries, indicating no liens other than Permitted Liens and otherwise in
form and substance satisfactory to the Agents.
14.9. Validity of Liens. The Security Documents shall be effective to
create in favor of the Documentation Agent, for the benefit of the Banks and the
Agents, a legal valid and enforceable first priority (except for Permitted Liens
entitled to priority under applicable law) security interest in and lien upon
the Collateral, including, without limitation, a first preferred mortgage on
each of the Vessels constituting Collateral. All filings, recordings, deliveries
of instruments and other actions necessary or desirable in the opinion of the
Documentation Agent to protect and preserve such security interests shall have
been duly effected. The Documentation Agent shall have received evidence thereof
in form and substance satisfactory to the Documentation Agent.
14.10. Capital Structure, Etc. The Agents shall be satisfied with the
capital and corporate structure of the Borrower and its Subsidiaries. The
Borrower shall have received the proceeds from the issuance of at least
$300,000,000 of the Senior Notes and the Agents shall have received evidence
thereof in form and substance satisfactory to them. The Agents shall have
received a copy, certified by an officer of the Borrower to be true and correct,
of
<PAGE>
the Senior Note Indenture and all other material documentation relating to the
Senior Notes, and all of such documentation shall be in form and substance
satisfactory to the Agents.
14.11. Vessel Appraisals. The Agents shall have received appraisals
from an appraiser and in form and substance satisfactory to the Agents, with
respect to certain Vessels subject to a Vessel Mortgage on the Closing Date. The
Agents shall be satisfied, based on such appraisals, that the Borrower will be
in compliance with ss.13.4 hereof on the Closing Date, after giving effect to
all Loans to be made or, as the case may be, amended and restated, and Letters
of Credit to be issued on such date.
15. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to amend and restate the Existing
Revolving Credit Loans and the Existing Term Loan and to make any Loan and of
the Issuing Bank to issue, extend or renew any Letter of Credit, in each case
whether on or after the Closing Date, shall also be subject to the satisfaction
of the following conditions precedent:
15.1. Representations True; No Event of Default. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
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, 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 Credit Agreement and the other
Loan Documents 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 or would result from the making of such Loan.
15.2. 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 or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Issuing Bank would make it illegal for the Issuing
Bank to issue, extend or renew such Letter of Credit.
15.3. 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.
15.4. Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agents and the Agents' Special Counsel, and the
Banks, the Agents and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agents may reasonably request.
<PAGE>
15.5. Vessel Appraisals. The Agents shall have received appraisals from
an appraiser and in form and substance satisfactory to the Agents, with respect
to certain Vessels subject to a Vessel Mortgage on the Drawdown Date of such
Loan. The Agents shall be satisfied, based on such appraisals, that the Borrower
will be in compliance with ss.13.4 hereof on such Drawdown Date, after giving
effect to all Loans to be made and Letters of Credit to be issued on such date.
16. EVENTS OF DEFAULT; ACCELERATION; ETC.
16.1. Events of Default and Acceleration. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "Defaults") shall
occur:
(a) the Borrower shall fail to pay any principal of the Loans
or any Reimbursement Obligation when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(b) the Borrower or any of its Subsidiaries shall fail to pay
any interest on the Loans, the commitment fee, any Letter of Credit
Fee, any Fronting Fee, the Agency fee, or other sums due hereunder or
under any of the other Loan Documents, within three (3) Business 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) the Borrower or any of its Subsidiaries shall fail to
comply with any of their covenants contained in ss.ss.11.5, 11.6(a),
11.7, 11.12, 11.13, 12 or 13;
(d) the Borrower or any of its Subsidiaries 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
ss.16.1) for thirty (30) days after written notice of such failure has
been given to the Borrower by an Agent;
(e) any representation or warranty of the Borrower or any of
its Subsidiaries in this Credit Agreement or any of the other Loan
Documents or in any other document or instrument delivered pursuant to
or in connection with this Credit 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 Borrower or any of its Subsidiaries shall default in
the payment when due of any principal of or interest on any
Indebtedness in excess of $1,000,000, or any event specified in any
note, agreement, indenture or other document evidencing or securing any
such Indebtedness shall occur if the effect of such event is to cause,
or (with the giving of notice or the lapse of time or both) to permit
the holder or holders of such Indebtedness (or a trustee or agent on
behalf of such holder or holders) to cause such Indebtedness to become
due, or to be prepaid in full prior to its stated
<PAGE>
maturity; or the Borrower or any of its Subsidiaries shall default in
the payment when due of any amount in excess of $1,000,000 under any
Derivative Transaction; or any event specified in any Derivative
Transaction to which the Borrower or any Subsidiary is a party shall
occur if the effect of such event is to cause, or (with the giving of
notice or the lapse of time or both) to permit, termination or
liquidation payments in respect of such Derivative Transaction in
excess of $1,000,000 to become due;
(g) the Borrower or any of its 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 the Borrower or any of
its Subsidiaries or of any substantial part of the assets of the
Borrower or any of its Subsidiaries or shall commence any case or other
proceeding relating to the Borrower or any of its Subsidiaries 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 the Borrower or any of its Subsidiaries and the
Borrower or any of its Subsidiaries shall indicate its approval
thereof, consent thereto or acquiescence therein or such petition or
application shall not have been dismissed within forty-five (45) days
following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any
of its 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 the Borrower or any Subsidiary of the Borrower in
an involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any
final judgment against the Borrower or any of its Subsidiaries that,
with other outstanding final judgments, undischarged, against the
Borrower or any of its Subsidiaries exceeds in the aggregate
$1,000,000;
(j) the holders of all or any part of the Trust Securities
shall accelerate the maturity of all or any part of the Trust
Securities or the Trust Securities shall be prepaid, redeemed or
repurchased in whole or in part or any default or event of default
under the Trust Securities shall occur;
(k) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded or the Documentation Agent's security
interests in any of the Collateral shall cease to be perfected or have
the priority contemplated by the Security Documents, except in
compliance with the provisions hereof, including, without limitation,
ss.13.4 hereof, 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
<PAGE>
rescind any of the Loan Documents shall be commenced by or on behalf of
the Borrower or any of its 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 is illegal, invalid
or unenforceable in accordance with the terms thereof;
(l) the Borrower or any ERISA Affiliate incurs any liability
to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA
in an aggregate amount exceeding $1,000,000 or the Borrower or any
ERISA Affiliate is assessed withdrawal liability pursuant to Title IV
of ERISA by a Multiemployer Plan requiring aggregate annual payments
exceeding $1,000,000, or any of the following occurs with respect to a
Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to
make a required installment or other payment (within the meaning of
ss.302(f)(1) of ERISA), provided that the Administrative Agent
determines in its reasonable discretion that such event (A) could be
expected to result in liability of the Borrower or any of its
Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $1,000,000 and (B) could constitute grounds
for the termination of such Guaranteed Pension Plan by the PBGC, for
the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan or for the
imposition of a lien in favor of such Guaranteed Pension Plan; or (ii)
the appointment by a United States District Court of a trustee to
administer such Guaranteed Pension Plan; or (iii) the institution by
the PBGC of proceedings to terminate such Guaranteed Pension Plan;
(m) a Change of Control shall have occurred; or
(n) there shall occur any material damage to, or loss, theft
or destruction of any Collateral which is not insured or which is
insured but as to which loss, theft or destruction, the insurance
proceeds relating thereto have not been paid to the Documentation
Agent, for the benefit of the Banks and the Agents, in accordance with
the terms of the Security Documents;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Banks shall, by
notice in writing to the Borrower declare all amounts owing with respect to this
Credit 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 Borrower; provided that in the
event of any Event of Default specified in ss.ss.16.1(g) or 16.1(h), all such
amounts shall become immediately due and payable automatically and without any
requirement of notice from the Administrative Agent or any Bank.
16.2. Termination of Commitments. If any one or more of the Events of
Default specified in ss.16.1(g) or ss.16.1(h) shall occur, any unused portion of
the credit hereunder shall forthwith terminate and each of the Banks shall be
relieved of all further obligations to make
<PAGE>
Loans to the Borrower and the Issuing Bank 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, the Administrative Agent may and,
upon the request of the Required Banks, shall, by notice to the Borrower,
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
and the Issuing Bank shall be relieved of all further obligations to issue,
extend or renew Letters of Credit. No termination of the credit hereunder shall
relieve the Borrower or any of its Subsidiaries of any of the Obligations.
16.3. 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 ss.16.1, each Bank, if owed
any amount with respect to the Loans, Reimbursement Obligations or other
Obligations, may, and the Documentation Agent may, if requested by the Required
Banks and in its sole discretion, on behalf of the Banks, 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 Credit 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 Administrative Agent or the holder of any Note or the purchaser of any
Letter of Credit 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.
16.4. Distribution of Collateral Proceeds. In the event that, following
the occurrence or during the continuance of any Default or Event of Default,
either 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 Agents for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agents in connection with the collection of such
monies by the Agents, for the exercise, protection or enforcement by
the Agents of all or any of the rights, remedies, powers and privileges
of the Agents under this Credit Agreement or any of the other Loan
Documents or in respect of the Collateral or in support of any
provision of adequate indemnity to the Agents against any taxes or
liens which by law shall have, or may have, priority over the rights of
the Agents to such monies;
(b) Second, to all other Obligations in such order or
preference as the Required Banks may determine; provided, however, that
(i) distributions shall be made (A) pari passu among Obligations with
respect to the Agents' fee payable pursuant to
<PAGE>
ss.7.1 and all other Obligations and (B) with respect to each type of
Obligation owing to the Banks, such as interest, principal, fees and
expenses, among the Banks pro rata, and (ii) the Agents may in their
discretion make proper allowance on a pro rata basis among the Banks 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 Agents
of all of the Obligations, to the payment of any obligations required
to be paid pursuant to ss.9-504(1)(c) of the Uniform Commercial Code;
and
(d) Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
17. AGREEMENT OF THE BANKS.
Each of the Banks agrees with each other Bank that if such Bank shall
receive from the Borrower or any Guarantor, whether by voluntary payment,
counterclaim, cross action, enforcement of the claim evidenced by the Notes held
by or constituting Reimbursement Obligations owed to such Bank, by proceedings
against the Borrower or any Guarantor 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 owing 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 owing 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, or Reimbursement Obligations owing to it, its proportionate
payment as contemplated by this Credit 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.
18. THE AGENTS; ETC.
18.1. Authorization.
(a) Each 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 such 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 either Agent.
(b) The relationship between each Agent and each of the Banks
is that of an independent contractor. The use of the terms "Agent",
"Agents", "Administrative Agent", "Documentation Agent" and
"Syndication Agent" is for convenience only and
<PAGE>
such terms are used to describe, as a form of convention, the
independent contractual relationship between the Agents and each of the
Banks. Nothing contained in this Credit Agreement nor the other Loan
Documents shall be construed to create an agency, trust or other
fiduciary relationship between the Agents and any of the Banks.
(c) 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, each 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 Agents with respect to all
collateral security and guaranties contemplated by the Loan Documents.
Such actions include the designation of an 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 Agents.
18.2. Employees and Agents. Each 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 Credit Agreement and the other Loan Documents. Each
Agent may utilize the services of such Persons as such Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrower.
18.3. No Liability. Neither Agent nor any of their respective
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 each Agent or such
other Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
18.4. No Representations.
18.4.1. General. Neither Agent shall be responsible for the
execution or validity or enforceability of this Credit Agreement, the
Notes, the Letters of Credit any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute,
collateral security for the Obligations, 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
the Letters of Credit, 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 Borrower or any of its Subsidiaries, 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
<PAGE>
Obligations or to inspect any of the properties, books or records of
the Borrower or any of its Subsidiaries. Neither Agent shall be bound
to ascertain whether any notice, consent, waiver or request delivered
to it by the Borrower or any holder of any of the Notes shall have been
duly authorized or is true, accurate and complete. Neither Agent has
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 Borrower or any of
its Subsidiaries. Each Bank acknowledges that it has, independently and
without reliance upon either 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 Credit Agreement.
18.4.2. Closing Documentation, etc. For purposes of
determining compliance with the conditions set forth in ss.14, each
Bank that has executed this Credit Agreement shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each
document and matter either sent, or made available, by an Agent to such
Bank for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or
satisfactory to such Bank, unless an officer of such Agent active upon
the Borrower's account shall have received notice from such Bank prior
to the Closing Date specifying such Bank's objection thereto and such
objection shall not have been withdrawn by notice to such Agent to such
effect on or prior to the Closing Date.
18.5. Payments.
18.5.1. Payments to Administrative Agent. A payment by the
Borrower to the Administrative Agent hereunder or any of the other Loan
Documents for the account of any Bank shall constitute a payment to
such Bank. The Administrative Agent agrees promptly to distribute to
each Bank such Bank's pro rata share of payments received by the
Administrative Agent for the account of the Banks except as otherwise
expressly provided herein or in any of the other Loan Documents.
18.5.2. Distribution by Agents. If in the opinion of an 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 distribution
until its right to make 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 an Agent is
to be repaid, each Person to whom any such distribution shall have been
made shall either repay to such 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.
18.5.3. Delinquent Banks. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Bank that fails (i) to make available to the
Administrative Agent its pro rata share of any
<PAGE>
Loan or to purchase any Letter of Credit Participation or (ii) to
comply with the provisions of ss.17 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 Banks, in
each case as, when and to the full extent required by the provisions of
this Credit 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 Borrower, whether on
account of outstanding Loans, Unpaid Reimbursement Obligations,
interest, fees or otherwise, to the remaining nondelinquent Banks for
application to, and reduction of, their respective pro rata shares of
all outstanding Loans and Unpaid Reimbursement Obligations. The
Delinquent Bank hereby authorizes the Administrative Agent to
distribute such payments to the 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 the 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.
18.6. Holders of Notes. Each Agent may deem and treat the payee of any
Note or the purchaser of any Letter of Credit Participation as the absolute
owner or purchaser 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, assignee or transferee.
18.7. Indemnity. The Banks ratably agree hereby to indemnify and hold
harmless each Agent and its affiliates and the Issuing Bank from and against any
and all claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which such Agent, the
Issuing Bank or such affiliate has not been reimbursed by the Borrower as
required by ss.19), and liabilities of every nature and character arising out of
or related to this Credit Agreement, the Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby, or
such Agent's or the Issuing Bank's actions taken hereunder or thereunder, except
to the extent that any of the same shall be directly caused by such Agent's or
the Issuing Bank's willful misconduct or gross negligence.
18.8. Agents as Banks. In its individual capacity, each of Citibank,
N.A. and BankBoston, N.A. shall have the same obligations and the same rights,
powers and privileges in respect to its Commitment and the Loans made by it, and
as the holder of any of the Notes and the purchaser of any Letter of Credit
Participation, as it would have were it not also an Agent.
18.9. Resignation. Either Agent or the Issuing Bank may resign at any time
by giving sixty (60) days prior written notice thereof to the Banks and the
Borrower. Upon any such
<PAGE>
resignation, the Required Banks shall have the right to appoint a successor
Agent or Issuing Bank. Unless a Default or Event of Default shall have occurred
and be continuing, such successor Agent or Issuing Bank shall be reasonably
acceptable to the Borrower. If no successor Agent or Issuing Bank shall have
been so appointed by the Required Banks and shall have accepted such appointment
within thirty (30) days after the retiring Agent's or Issuing Bank's giving of
notice of resignation, then the retiring Agent or Issuing Bank may, on behalf of
the Banks, appoint a successor Agent or Issuing Bank, which shall be a financial
institution having a rating of not less than A or its equivalent by Standard &
Poor's Corporation. Upon the acceptance of any appointment as Agent or Issuing
Bank hereunder by a successor Agent or Issuing Bank, such successor Agent or
Issuing Bank shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent or Issuing Bank, and the
retiring Agent or Issuing Bank shall be discharged from its duties and
obligations hereunder. After any retiring Agent's or Issuing Bank's resignation,
the provisions of this Credit 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 or Issuing Bank.
18.10. 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 Agents thereof. Each Agent hereby agrees that upon
receipt of any notice under this ss.18.10 it shall promptly notify the other
Banks of the existence of such Default or Event of Default.
18.11. Duties in the Case of Enforcement. In case one or more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Documentation Agent shall, if (i) so
requested by the Required Banks and (ii) the Banks have provided to the
Documentation Agent such additional indemnities and assurances against expenses
and liabilities as the Documentation 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 Required Banks may direct the Documentation Agent in
writing as to the method and the extent of any such sale or other disposition,
the Banks hereby agreeing to indemnify and hold the Documentation Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Documentation
Agent need not comply with any such direction to the extent that the
Documentation Agent reasonably believes the Documentation Agent's compliance
with such direction to be unlawful or commercially unreasonable in any
applicable jurisdiction.
19. EXPENSES AND INDEMNIFICATION.
19.1. Expenses. The Borrower agrees to pay (i) the reasonable costs of
producing and reproducing this Credit Agreement, the other Loan Documents and
the other agreements and instruments mentioned herein, (ii) any taxes (including
any interest and penalties in respect thereto) payable by the Agents or any of
the Banks (other than taxes based upon any Agent's or any Bank's net income) on
or with respect to the transactions contemplated by this Credit Agreement (the
Borrower hereby agreeing to indemnify each Agent and each Bank with
<PAGE>
respect thereto), (iii) the reasonable fees, expenses and disbursements of the
Agents' Special Counsel and any local counsel to the Agents incurred in
connection with the preparation, execution, delivery, syndication,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, any amendments, modifications,
approvals, consents or waivers hereto or hereunder, or the cancellation of any
Loan Document upon payment in full in cash of all of the Obligations and the
termination of the Commitments or pursuant to any terms of such Loan Document
providing for such cancellation, (iv) the fees, expenses and disbursements of
each of the Agents and the Arrangers or any of their affiliates incurred by such
Agent, Arranger or such affiliate in connection with the preparation,
syndication, administration or interpretation of the Loan Documents and other
instruments mentioned herein, including fees, expenses and disbursements
associated with collateral examination and appraisals and environmental surveys,
(v) all reasonable out-of-pocket expenses (including without limitation
reasonable attorneys' fees and costs, which attorneys may be employees of any
Bank or Agent, and reasonable consulting, accounting, appraisal, investment
banking and similar professional fees and charges) incurred by any Bank or Agent
in connection with (A) the enforcement of or preservation of rights under any of
the Loan Documents against the Borrower or any of its Subsidiaries or the
administration thereof after the occurrence of a Default or Event of Default and
(B) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or Agent's relationship with the
Borrower or any of its Subsidiaries and (vi) all reasonable fees, expenses and
disbursements of any Bank or Agent and their counsel incurred in connection with
the filing and recordation of the Documentation Agent's liens and security
interests pursuant to the Security Documents and with UCC searches and maritime
registry searches and obtaining vessel abstracts and similar documentation from
the Coast Guard National Vessel Documentation Center and any other maritime
authority.
19.2. Indemnification. The Borrower agrees to indemnify and hold
harmless the Agents, their affiliates and the Banks and their respective
directors, officers, employees and representatives 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 Credit Agreement or any of the other Loan
Documents or the transactions contemplated hereby including, without limitation,
(i) any actual or proposed use by the Borrower or any of its Subsidiaries of the
proceeds of any of the Loans or Letters of Credit, (ii) the Borrower or any of
its Subsidiaries entering into or performing this Credit Agreement or any of the
other Loan Documents or (iii) with respect to the Borrower 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 Agents and their affiliates shall be entitled to
select their own counsel and, in addition to the foregoing indemnity, the
Borrower agrees to pay promptly the reasonable fees and expenses of such
counsel. If, and to the extent that the obligations of the
<PAGE>
Borrower under this ss.19.2 are unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the payment in satisfaction of
such obligations which is permissible under applicable law.
19.3. Survival. The covenants contained in this ss.19 shall survive
payment or satisfaction in full of all other Obligations and the termination of
the Commitments.
20. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
20.1. Sharing of Information with Section 20 Subsidiary. The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries, in connection with this Credit Agreement or otherwise, by a
Section 20 Subsidiary. The Borrower, for itself and each of its Subsidiaries,
hereby authorizes (a) such Section 20 Subsidiary to share with each Agent and
each Bank any information delivered to such Section 20 Subsidiary by the
Borrower or any of its Subsidiaries, and (b) each Agent and each Bank to share
with such Section 20 Subsidiary any information delivered to such Agent or such
Bank by the Borrower or any of its Subsidiaries pursuant to this Credit
Agreement, or in connection with the decision of such Bank to enter into this
Credit 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 Credit Agreement. Such authorization shall survive the
payment and satisfaction in full of all of Obligations.
20.2. Confidentiality. Each of the Banks and the Agents agrees, on
behalf of itself and each of its affiliates, directors, officers, employees and
representatives, to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature and in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower or any of its Subsidiaries
pursuant to this Credit Agreement that is identified by such Person as being
confidential at the time the same is delivered to the Banks or the Agents,
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 ss.20, (b) to the extent required by statute, rule, regulation
or judicial process, (c) to counsel for any of the Banks or the Agents, (d) to
bank examiners or any other regulatory authority having jurisdiction over any
Bank or the Agents, or to auditors or accountants, (e) to an Agent, any Bank or
any Section 20 Subsidiary, (f) in connection with any litigation to which any
one or more of the Banks, the Agents 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 ss.20.1 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 ss.22.6.
20.3. Prior Notification. Unless specifically prohibited by applicable
law or court order, each of the Banks and the Agents shall, prior to disclosure
thereof, notify the Borrower 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
<PAGE>
process.
20.4. Other. In no event shall any Bank or Agent be obligated or
required to return any materials furnished to it or any Section 20 Subsidiary by
the Borrower or any of its Subsidiaries. The obligations of each Bank and each
Agent under this ss.20 shall supersede and replace the obligations of such Bank
and each Agent under any confidentiality letter in respect of this financing
signed and delivered by such Bank or such Agent to the Borrower prior to the
date hereof and shall be binding upon any assignee of, or purchaser of any
participation or interest in any of the Loans or Reimbursement Obligations.
21. 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 Borrower or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Banks and the
Agents, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Banks of any of the Loans and the
issuance, extension or renewal of any Letters of Credit and shall continue in
full force and effect so long as any amount due under this Credit Agreement or
the Notes or any of the other Loan Documents remains outstanding or any Bank has
any obligation to make any Loans or the Issuing Bank 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 Credit Agreement. All statements contained
in any certificate or other paper delivered to any Bank or Agent at any time by
or on behalf of the Borrower or any of its Subsidiaries pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower or such Subsidiary hereunder.
22. ASSIGNMENT AND PARTICIPATION.
22.1. 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 Credit Agreement (including all or
a portion of its Revolving Credit Commitment Percentage and Revolving Credit
Commitment and the same portion of the Revolving Credit Loans at the time owing
to it and the Revolving Credit Notes held by it and its participating interest
in the risk related to any Letters of Credit and the same portion of its Term
Loan Commitment Percentage and Term Loan Commitment and the same portion of the
Term Loan owing to it and the Term Note held by it); provided that (i) either
(a) such assignment is to another Bank or an affiliate of the assigning Bank or
(b) an Agent and, unless a Default or Event of Default shall have occurred and
be continuing, the Borrower shall have given its prior written consent to such
assignment, which consent will not be unreasonably withheld, (ii) each such
assignment shall be of a constant, and not a varying, percentage of all the
assigning Bank's rights and obligations under this Credit Agreement, (iii) each
assignment shall be in a minimum amount of $5,000,000 or a larger integral
multiple of $1,000,000 in excess thereof (or if less, the entire Revolving
Credit Commitment and Term Loan Commitment of the assigning Bank) and (iv) the
parties to such assignment shall execute and deliver to the Administrative
Agent, for recording in the Register (as hereinafter defined), an
<PAGE>
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 Administrative Agent of the registration
fee referred to in ss.22.3, be released from its obligations under this Credit
Agreement.
22.2. 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, and that it has made arrangements with
the assignee Bank satisfactory to such assignor with respect to its pro
rata share of Letter of Credit Fees with respect to outstanding Letters
of Credit, 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 Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit
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 Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrower and its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit 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
Credit Agreement, together with copies of the most recent financial
statements referred to in ss.10.4 and ss.11.4 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 Agents 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 Credit Agreement;
(e) such assignee represents and warrants that it is an
Eligible Assignee;
<PAGE>
(f) such assignee appoints and authorizes the Agents to take
such action as agent on its behalf and to exercise such powers under
this Credit Agreement and the other Loan Documents as are delegated to
the Agents 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
Credit Agreement are required to be performed by it as a Bank; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
22.3. Register. The Administrative 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 the names and addresses of the Banks and the
Revolving Credit Commitment Percentage and Term Loan Commitment Percentage of,
and principal amount of the Revolving Credit Loans and the Term Loan owing to,
and Letter of Credit 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 Borrower, the Agents and the Banks may treat each Person whose
name is recorded in the Register as a Bank hereunder for all purposes of this
Credit Agreement. The Register shall be available for inspection by the Borrower
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
Administrative Agent a registration fee in the sum of $3,500.
22.4. 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 Administrative Agent shall (i) record the information
contained therein in the Register, and (ii) give prompt notice thereof to the
Borrower and the Banks (other than the assigning Bank). Within five (5) Business
Days after receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative 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
ss.22.4, the Borrower shall deliver an opinion of counsel, addressed to the
Banks and the Agents, 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 Borrower.
22.5. Participations. Each Bank may sell participations to one or
more banks or other
<PAGE>
entities in all or a portion of such Bank's rights and obligations under this
Credit Agreement and the other Loan Documents; provided that (i) each such
participation shall be in an amount of not less than $5,000,000, (ii) any such
sale or participation shall not affect the rights and duties of the selling Bank
hereunder to the Borrower and (iii) 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 Commitments of
such Bank as it relates to such participant, reduce the amount of any commitment
fees or Letter of Credit Fees to which such participant is entitled or extend
any regularly scheduled payment date for principal or interest.
22.6. Disclosure. The Borrower agrees 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 Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation.
22.7. Assignee or Participant Affiliated with the Borrower. If any
assignee Bank is an Affiliate of the Borrower, 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 Administrative Agent pursuant to ss.16.1
or ss.16.2, and the determination of the Required Banks shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard to
such assignee Bank's interest in any of the Loans or Reimbursement Obligations.
If any Bank sells a participating interest in any of the Loans to a participant,
and such participant is the Borrower or an Affiliate of the Borrower, then such
transferor Bank shall promptly notify the Administrative 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
Administrative Agent pursuant to ss.16.1 or ss.16.2 to the extent that such
participation is beneficially owned by the Borrower or any Affiliate of the
Borrower, and the determination of the Required Banks shall for all purposes of
this Credit Agreement and the other Loan Documents be made without regard to the
interest of such transferor Bank in the Loans or Reimbursement Obligations to
the extent of such participation.
22.8. Miscellaneous Assignment Provisions. Any assigning Bank shall
retain its rights to be indemnified pursuant to ss.19 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,
<PAGE>
deliver to the Borrower and the Administrative Agent certification as to its
exemption from deduction or withholding of any United States federal income
taxes. If any Reference Bank transfers all of its interest, rights and
obligations under this Credit Agreement, the Administrative Agent shall, in
consultation with the Borrower and with the consent of the Borrower and the
Required Banks, appoint another Bank to act as a Reference Bank hereunder.
Anything contained in this ss.22 to the contrary notwithstanding, any Bank may
at any time pledge all or any portion of its interest and rights under this
Credit Agreement (including all or any portion of its Notes) to any of the
twelve Federal Reserve Banks organized under ss.4 of the Federal Reserve Act, 12
U.S.C. ss.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.
22.9. Assignment by Borrower. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
23. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit 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 facsimile or and confirmed by delivery via courier or postal service,
addressed as follows:
(a) if to the Borrower, at 2200 Eller Drive, Building 27, P.O. Box 13038,
Fort Lauderdale, FL 33316, Attention: Gene Douglas, Vice President - Legal &
General Counsel, Telecopier No. 954-527-1772, or at such other address for
notice as the Borrower shall last have furnished in writing to the Person giving
the notice;
(b) if to the Administrative Agent, at 399 Park Avenue, Global Shipping
Division, 8th Floor, New York, NY 10043, Telecopier No. 212-793-3588, or such
other address for notice as the Administrative Agent shall last have furnished
in writing to the Person giving the notice;
(c) if to the Documentation Agent, at 100 Federal Street, Boston,
Massachusetts 02110, Attention: Victor Garcia, Vice President, Telecopier No.
617- 434-1955, or such other address for notice as the Syndication Agent shall
last have furnished in writing to the Person giving the notice; and
(d) if to any Bank, at such Bank's address set forth on Schedule 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
<PAGE>
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.
24. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK (EXCLUDING THE LAWS APPLICABLE TO
CONFLICTS OR CHOICE OF LAW). EACH OF THE BORROWER AND EACH GUARANTOR AGREES THAT
ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER OR
SUCH GUARANTOR BY MAIL AT THE ADDRESS SPECIFIED IN ss.23. EACH OF THE BORROWER
AND EACH GUARANTOR 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.
25. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
26. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit 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.
27. 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 Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in ss.29.
28. WAIVER OF JURY TRIAL.
Each party hereto hereby waives its right to a jury trial with respect
to any action or
<PAGE>
claim arising out of any dispute in connection with this Credit Agreement, the
Notes or any of the other Loan Documents, any rights or obligations hereunder or
thereunder or the performance of which rights and obligations. Except as
prohibited by law, the Borrower 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 Borrower (i) certifies that no representative,
agent or attorney of any Bank or the Agents has represented, expressly or
otherwise, that such Bank or the Agents would not, in the event of litigation,
seek to enforce the foregoing waivers and (ii) acknowledges that the Agents and
the Banks have been induced to enter into this Credit Agreement, the other Loan
Documents to which it is a party by, among other things, the waivers and
certifications contained herein.
29. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement
to be given by the Banks may be given, and any term of this Credit Agreement,
the other Loan Documents or any other instrument related hereto or mentioned
herein may be amended, and the performance or observance by the Borrower or any
of its Subsidiaries of any terms of this Credit Agreement, the other Loan
Documents or such other instrument or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Borrower and the written consent of the Required Banks. Notwithstanding the
foregoing, the rate of interest on the Notes (other than interest accruing
pursuant to ss.8.9.2 following the effective date of any waiver by the Required
Banks of the Default or Event of Default relating thereto), the amount of the
Commitments of the Banks, and the amount of commitment fee or Letter of Credit
Fees hereunder may not be changed without the written consent of the Borrower
and the written consent of each Bank affected thereby; the Revolving Credit Loan
Maturity Date and the Term Loan Maturity Date and the date of any payment of any
principal, interest or fees hereunder may not be postponed without the written
consent of each Bank affected thereby; all or substantially all of the
Guarantors may not be released from their Obligations under the Guaranty,
Collateral may not be released if after giving effect to such release, and any
additional Collateral substituted in lieu thereof, the Borrower would not be in
compliance with ss.13.4, this ss.29, each other provision hereof specifying that
the Banks are to receive payments "pro rata" or that payments are to be made
"for the respective accounts of the Banks" or in accordance with each Bank's
Revolving Credit Commitment Percentage or Term Loan Commitment Percentage, or
words of similar import, or which specifies the number or percentage of Banks
required to make any determinations, consent to any matter, or waive any rights
hereunder or to modify any provision hereof, and the definition of Required
Banks may not be amended without the written consent of all of the Banks; the
amount of, or timing or order of payment of, the Agency fee, and ss.18 may not
be amended without the written consent of each of the Agents; and the amount of,
or timing or order of payment of, any Fronting Fee and ss.5 may not be amended
without the consent of the Issuing Bank. No waiver shall extend to or affect any
obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission on the part of the Agents or any Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle the
<PAGE>
Borrower to other or further notice or demand in similar or other circumstances.
30. SEVERABILITY.
The provisions of this Credit 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 Credit Agreement in any jurisdiction.
31. TRANSITIONAL ARRANGEMENTS.
On the Closing Date, (i) the Existing Revolving Credit Agreement and
the Existing Term Loan Agreement shall be amended and restated as set forth in
this Credit Agreement and the rights and obligations of the parties evidenced by
the Existing Revolving Agreement and the Existing Term Loan Agreement shall be
evidenced by this Credit Agreement and the other Loan Documents and (ii) the
Existing Revolving Credit Loans shall be converted to Revolving Credit Loans
hereunder and the Existing Term Loan shall be converted to the Term Loan
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
Revolving Credit Agreement and/or the Existing Term Loan 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. On and as of
the Closing Date, the "Commitments" under, and as defined in each of the
Existing Revolving Credit Agreement and the Existing Term Loan Agreement, shall
be irrevocably cancelled and terminated and the Commitments as defined herein
shall be in effect as set forth herein.
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as of the date first set forth above.
HVIDE MARINE INCORPORATED
By:
Title:
SEABULK TRANSMARINE
PARTNERSHIP, LTD., as
Guarantor By its general
partner Seabulk Tankers,
Ltd.
By its general partner Hvide
Marine
Transport, Incorporated
By:
Title:
SEABULK OFFSHORE LTD., as
Guarantor By its general
partner Seabulk Tankers
Ltd.
By its general partner Hvide
Marine Transport, Incorporated
By:
Title:
HVIDE MARINE TRANSPORT,
INCORPORATED, as Guarantor
By:
Title:
<PAGE>
SEABULK TANKERS, LTD.,
as Guarantor
By its general partner Hvide Marine
Transport, Incorporated
By:
Title:
SEABULK OFFSHORE HOLDINGS,
INC., as Guarantor
By:
Title:
SEABULK OFFSHORE
INTERNATIONAL, INC., as
Guarantor
By:
Title:
SEABULK OCEAN SYSTEMS
CORPORATION, as Guarantor
By:
Title:
SUN STATE MARINE SERVICES,
INC., as Guarantor
By:
Title:
<PAGE>
CITIBANK, N.A., individually and as
Administrative Agent
By:
Title:
BANKBOSTON, N.A., individually
and as Documentation Agent
By:
Title:
BNY FINANCIAL CORPORATION
By:
Title:
HIBERNIA NATIONAL BANK
By:
Title:
AMSOUTH BANK
By:
Title:
<PAGE>
FIRST NATIONAL BANK OF
COMMERCE
By:
Title:
THE SUMITOMO BANK, LIMITED
By:
Title:
By:
Title:
CORESTATES BANK, N.A.
By:
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By:
Title:
ABN AMRO BANK, N.V.
By:
Title:
Title:
<PAGE>
SUNTRUST BANK,
SOUTH FLORIDA, N.A
By:
Title:
ARAB BANKING CORPORATION (B.S.C.)
By:
Title:
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH
By:
Title:
UNION PLANTERS BANK OF FLORIDA
By:
Title:
SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Title:
<PAGE>
SEABULK OFFSHORE OPERATORS,
INC., as Guarantor
By:
Title:
SEABULK OFFSHORE GLOBAL HOLDINGS,
INC., as Guarantor
By:
Title:
TAMPA BAY TOWING, INC., as
By:
Title:
Exhibit 12.1
Hvide Marine Incorporated
Computation of Ratio of Earnings to Fixed Charges
(In thousands, except ratio amounts)
<TABLE>
<CAPTION>
Nine Months
Ended
Year Ended December 31, September 30,
1992 1993 1994 1995 1996 1996 1997
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) from operations
before income taxes.......................... $ 168 $ 3,691 $ 547 $ (362) $ 9,576 $ 4,325 $ 28,508
Add (deduct)
Fixed charges less capitalized interest 7,639 7,363 8,443 14,885 15,239 10,977 9,059
Minority interest in consolidated subsidiaries 183 1,179 184 -- -- -- --
Minority interest adjustment for losses of
majority owned subsidiaries................ -- -- -- (625) (756) (700) (80)
Net losses related to 50% or less owned
subsidiaries............................... -- -- -- 488 -- -- --
Adjusted Earnings............................... $ 7,990 $ 12,233 $ 9,174 $ 14,386 $ 24,059 $ 14,602 $ 37,487
Fixed Charges:
Interest expense............................. $ 4,331 $ 3,606 $ 5,614 $ 11,748 $ 11,908 $ 8,802 $ 5,218
Capitalized interest......................... -- -- -- -- -- -- 775
Amortization of debt expense and debt
discounts.................................. 1,080 1,642 837 1,206 1,225 920 445
Interest portion of rental expense 2,228 2,115 1,992 1,931 2,106 1,255 1,444
Preferred Stock dividends.................... 0 0 0 -- -- -- 1,952
Total fixed charges............................. $ 7,639 $ 7,363 $ 8,443 $ 14,885 $ 15,239 $ 10,977 $ 9,834
Ratio of Earnings to fixed charges(1) 1.05 1.66 1.09 0.97 1.58 1.33 3.81
</TABLE>
(1) The ratio of earnings to fixed charges is computed by dividing the
Company's pre-tax income from continuing operations adjusted for fixed
charges less minority interest in the income or loss of majority-owned
subsidiaries divided by fixed charges. Fixed charges include interest and
amortization of debt expense and discount. Earnings for the year ended
December 31, 1995 were not able to cover fixed charges by $499,000.
Exhibit 21.1
Subsidiaries of Hvide Marine Incorporated
Jurisdiction
Name of Incorporation
Groves Marine Services, Inc. Florida
Hvide Aker CAHT I, L.L.C. Delaware
Hvide Aker Chartering I, L.L.C. Delaware
Hvide Aker Holdings, L.L.C. Delaware
Hvide Marine International, Inc. Florida
Hvide Marine Towing Services, Inc. Florida
Hvide Marine Transport, Incorporated Florida
Ocean Specialty Tankers Corporation Florida
Seabulk Alkatar, Inc. Marshall Islands
Seabulk America Partnership, Ltd. Florida
Seabulk Arabian, Inc. Marshall Islands
Seabulk Arctic Express, Inc. Marshall Islands
Seabulk Aries II, Inc. Marshall Islands
Seabulk Arzanah, Inc. Marshall Islands
Seabulk Barracuda, Inc. Marshall Islands
Seabulk Becky, Inc. Marshall Islands
Seabulk Betsy, Inc. Marshall Islands
Seabulk Bravo, Inc. Marshall Islands
Seabulk Bul Hanin, Inc. Marshall Islands
Seabulk Capricorn, Inc. Marshall Islands
Seabulk Cardinal, Inc. Marshall Islands
Seabulk Carol, Inc. Marshall Islands
Seabulk Champ, Inc. Marshall Islands
Seabulk Chemical Carriers, Inc. Florida
Seabulk Christopher, Inc. Marshall Islands
Seabulk Clipper, Inc. Marshall Islands
Seabulk Command, Inc. Marshall Islands
Seabulk Condor, Inc. Marshall Islands
Seabulk Constructor, Inc. Marshall Islands
Seabulk Coot I, Inc. Marshall Islands
Seabulk Coot II, Inc. Marshall Islands
Seabulk Cormorant, Inc. Marshall Islands
Seabulk Cygnet I, Inc. Marshall Islands
Seabulk Cygnet II, Inc. Marshall Islands
Seabulk Danah, Inc. Marshall Islands
Seabulk Dayna, Inc. Marshall Islands
Seabulk Debbie, Inc. Marshall Islands
Seabulk Defender, Inc. Marshall Islands
Seabulk Diana, Inc. Marshall Islands
Seabulk Discovery, Inc. Marshall Islands
Seabulk Duke, Inc. Marshall Islands
1
<PAGE>
Seabulk Eagle II, Inc. Marshall Islands
Seabulk Eagle, Inc. Marshall Islands
Seabulk Emerald, Inc. Marshall Islands
Seabulk Energy, Inc. Marshall Islands
Seabulk Explorer, Inc. Marshall Islands
Seabulk Falcon II, Inc. Marshall Islands
Seabulk Falcon, Inc. Marshall Islands
Seabulk Freedom, Inc. Marshall Islands
Seabulk Fulmar, Inc. Marshall Islands
Seabulk Gabrielle, Inc. Marshall Islands
Seabulk Gannet I, Inc. Marshall Islands
Seabulk Gannet II, Inc. Marshall Islands
Seabulk Gazelle, Inc. Marshall Islands
Seabulk Giant, Inc. Marshall Islands
Seabulk Grebe, Inc. Marshall Islands
Seabulk Habara, Inc. Marshall Islands
Seabulk Hamour, Inc. Marshall Islands
Seabulk Harrier, Inc. Marshall Islands
Seabulk Hatta, Inc. Marshall Islands
Seabulk Hawk, Inc. Marshall Islands
Seabulk Hercules, Inc. Marshall Islands
Seabulk Heron, Inc. Marshall Islands
Seabulk Horizon, Inc. Marshall Islands
Seabulk Houbare, Inc. Marshall Islands
Seabulk Hunter, Inc. Marshall Islands
Seabulk Ibex, Inc. Marshall Islands
Seabulk Isabel, Inc. Marshall Islands
Seabulk Jebel Ali, Inc. Marshall Islands
Seabulk Kestrel, Inc. Marshall Islands
Seabulk King, Inc. Marshall Islands
Seabulk Knight, Inc. Marshall Islands
Seabulk Lake Express, Inc. Marshall Islands
Seabulk Lara, Inc. Marshall Islands
Seabulk Lark, Inc. Marshall Islands
Seabulk Liberty, Inc. Marshall Islands
Seabulk Lulu, Inc. Marshall Islands
Seabulk Maintainer, Inc. Marshall Islands
Seabulk Mallard, Inc. Marshall Islands
Seabulk Marlene, Inc. Marshall Islands
Seabulk Martin I, Inc. Marshall Islands
Seabulk Martin II, Inc. Marshall Islands
Seabulk Master, Inc. Marshall Islands
Seabulk Merlin, Inc. Marshall Islands
Seabulk Mubarrak, Inc. Marshall Islands
Seabulk Nada, Inc. Marshall Islands
Seabulk Neptune, Inc. Marshall Islands
Seabulk Ocean Systems Corporation Florida
Seabulk Ocean Systems Holdings Corporation Florida
Seabulk Offshore Abu Dhabi, Inc. Florida
Seabulk Offshore Chartering, Inc. Marshall Islands
2
<PAGE>
Seabulk Offshore Dubai, Inc. Florida
Seabulk Offshore Global Holdings, Inc. Marshall Islands
Seabulk Offshore Holdings, Inc. Marshall Islands
Seabulk Offshore International, Inc. Florida
Seabulk Offshore, Ltd. Florida
Seabulk Offshore Operators, Inc. Florida
Seabulk Oryx, Inc. Marshall Islands
Seabulk Osprey, Inc. Marshall Islands
Seabulk Pelican, Inc. Marshall Islands
Seabulk Penguin I, Inc. Marshall Islands
Seabulk Penguin II, Inc. Marshall Islands
Seabulk Penny, Inc. Marshall Islands
Seabulk Persistence, Inc. Marshall Islands
Seabulk Petrel, Inc. Marshall Islands
Seabulk Plover, Inc. Marshall Islands
Seabulk Power, Inc. Marshall Islands
Seabulk Pride, Inc. Marshall Islands
Seabulk Prince, Inc. Marshall Islands
Seabulk Princess, Inc. Marshall Islands
Seabulk Puffin, Inc. Marshall Islands
Seabulk Queen, Inc. Marshall Islands
Seabulk Raven, Inc. Marshall Islands
Seabulk Rooster, Inc. Marshall Islands
Seabulk Ruby, Inc. Marshall Islands
Seabulk Salihu, Inc. Marshall Islands
Seabulk Sapphire, Inc. Marshall Islands
Seabulk Sara, Inc. Marshall Islands
Seabulk Seahorse, Inc. Marshall Islands
Seabulk Sengali, Inc. Marshall Islands
Seabulk Service, Inc. Marshall Islands
Seabulk Shari, Inc. Marshall Islands
Seabulk Shindaga, Inc. Marshall Islands
Seabulk Skua I, Inc. Marshall Islands
Seabulk Snipe, Inc. Marshall Islands
Seabulk Star, Inc. Marshall Islands
Seabulk Suhail, Inc. Marshall Islands
Seabulk Swan, Inc. Marshall Islands
Seabulk Swift, Inc. Marshall Islands
Seabulk Tankers, Ltd. Marshall Islands
Seabulk Taurus, Inc. Marshall Islands
Seabulk Tender, Inc. Marshall Islands
Seabulk Tern, Inc. Cyprus
Seabulk Tims I, Inc. Marshall Islands
Seabulk Titan, Inc. Marshall Islands
Seabulk Toota, Inc. Marshall Islands
Seabulk Toucan, Inc. Marshall Islands
Seabulk Trader, Inc. Marshall Islands
Seabulk Transmarine II, Inc. Florida
3
<PAGE>
Seabulk Transmarine Partnership, Ltd. Florida
Seabulk Treasure Island, Inc. Marshall Islands
Seabulk Umm Shaif, Inc. Marshall Islands
Seabulk Veritas, Inc. Marshall Islands
Seabulk Virgo I, Inc. Marshall Islands
Seabulk Voyager, Inc. Marshall Islands
Seabulk Zakum, Inc. Marshall Islands
Sun State Marine Services, Inc. Florida
Tampa Bay Towing, Inc. Delaware
Exhibit 23.1
Consent of Independent Certified Public Accountants
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-42039) on Form
S-4 and related Prospectus of Hvide Marine Incorporated for the registration of
$300 million 8.375% Senior Notes and to the incorporation by reference therein
of our report dated February 20, 1997, except the eighth paragraph of Note 3, as
to which the date is March 25, 1997, with respect to the consolidated financial
statements of Hvide Marine Incorporated included in its Annual Report (Form
10-K) for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Miami, Florida
March 13, 1998
Exhibit 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-42039) on Form
S-4 and related Prospectus of Hvide Marine Incorporated for the registration of
$300 million 8.375% Senior Notes and to the incorporation by reference therein
of our report dated December 8, 1997, with respect to the combined statements of
assets to be sold and the related combined statements of vessel operations of
Care Offshore, Inc. included in Hvide Marine Incorporated's Registration
Statement (Form S-3 No. 333-42039), filed with the Securities and Exchange
Commission.
/s/ ATAG Ernst & Young S.A.
Geneva, Switzerland
March 13, 1998
Exhibit 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Prospectus
constituting part of this Registration Statement on Form S-4 of Hvide Marine
Incorporated of our report dated March 20, 1997 regarding Bay Transportation
Corporation appearing on page F-43 of Hvide Marine Incorporated's Registration
Statement on Form S-3, Registration No. 333-42039. We also consent to the
reference to us under the headings "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Tampa, Florida
March 13, 1998
Exhibit 23.4
Consent of Independent Certified Public Accountants
We consent to the incorporation by reference in the Registration
Statement (Form S-4) and related Prospectus of Hvide Marine Incorporated (the
Company) for the registration of $300,000,000 of Senior Notes of our report
dated May 19, 1997, with respect to the financial statements of the Marine
Division of GMMOS, included in the Company's report on Form 8-K dated May 23,
1997.
Deloitte & Touche
Dubai, U.A.E.
March 16, 1998
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael Joseph and John F.
Kearney, or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
- ------------------------------
J. Erik Hvide Executive Officer and Director (principal
executive officer)
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
- --------------------
John H. Blankley Officer and Director
/s/ JOHN J. KRUMENACKER Controller (principal accounting officer) March 18, 1998
- -----------------------
John J. Krumenacker
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
- ---------------------
Eugene F. Sweeney
/s/ ROBERT B. CALHOUN, JR. Director March 18, 1998
Robert B. Calhoun, Jr.
/s/ GERALD FARMER Director March 18, 1998
Gerald Farmer
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ JEAN FITZGERALD Director March 18, 1998
Jean Fitzgerald
/s/ JOHN J. LEE Director March 18, 1998
- ------------------------------
John J. Lee
/s/ WALTER C. MINK Director March 18, 1998
- ------------------------------
Walter C. Mink
/s/ ROBERT RICE Director March 18, 1998
Robert Rice
/s/ RAYMOND B. VICKERS Director March 18, 1998
- ----------------------
Raymond B. Vickers
/s/ JOSIAH O. LOW III Director March 18, 1998
Josiah O. Low III
</TABLE>
<PAGE>
POWER OF ATTORNEY OF SEABULK AMERICA PARTNERSHIP, LTD.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael Joseph and John F.
Kearney, or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-4 and any
and all amendments (including post-effective amendments) to the Registration
Statement on Form S-4, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney has been signed by the following persons in the
capacities and on the dates indicated.
SEABULK AMERICA PARTNERSHIP, LTD.
By: SEABULK TANKERS, LTD.
General Partner of Seabulk America Partnership, Ltd.
By: HVIDE MARINE TRANSPORT, INCORPORATED
General Partner of Seabulk Tankers, Ltd.
<TABLE>
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
- ------------------------------
J. Erik Hvide Executive Officer and Director of
Hvide Marine Transport, Incorporated
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
- --------------------
John H. Blankley Officer and Director of Hvide Marine
Transport, Incorporated
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
- ---------------------
Eugene F. Sweeney of Hvide Marine Transport, Incorporated
</TABLE>
<PAGE>
POWER OF ATTORNEY OF OCEAN SPECIALTY TANKERS CORPORATION
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael Joseph and John F.
Kearney, or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-4 and any
and all amendments (including post-effective amendments) to the Registration
Statement on Form S-4, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ EUGENE F. SWEENEY President and Director March 18, 1998
- ---------------------
Eugene F. Sweeney
/s/ L. STEPHEN WILLRICH Senior Vice President, Secretary, March 18, 1998
- -----------------------
L. Stephen Willrich Treasurer and Director
/s/ J. ERIK HVIDE Director March 18, 1998
- -----------------
J.Erik Hvide
</TABLE>
<PAGE>
POWER OF ATTORNEY OF SEABULK OFFSHORE, LTD.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael Joseph and John F.
Kearney, or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-4 and any
and all amendments (including post-effective amendments) to the Registration
Statement on Form S-4, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney has been signed by the following persons in the
capacities and on the dates indicated.
SEABULK OFFSHORE, LTD.
By: SEABULK TANKERS, LTD.
General Partner of Seabulk Offshore, Ltd.
By: HVIDE MARINE TRANSPORT, INCORPORATED
General Partner of Seabulk Tankers, Ltd.
<TABLE>
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
- ------------------------------
J. Erik Hvide Executive Officer and Director of
Hvide Marine Transport, Incorporated
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
- --------------------
John H. Blankley Officer and Director of Hvide Marine
Transport, Incorporated
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
- ---------------------
Eugene F. Sweeney of Hvide Marine Transport, Incorporated
</TABLE>
<PAGE>
POWER OF ATTORNEY OF SUN STATE MARINE SERVICES, INC.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael Joseph and John F.
Kearney, or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-4 and any
and all amendments (including post-effective amendments) to the Registration
Statement on Form S-4, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ WILLIAM R. LUDT President and Director March 18, 1998
- -------------------
William R. Ludt
/s/ CHRISTOPHER D. STRONG Assistant Secretary March 18, 1998
- -------------------------
Christopher D. Strong
/s/ J. ERIK HVIDE Director March 18, 1998
- -----------------
J. Erik Hvide
/s/ JOHN H. BLANKLEY Director March 18, 1998
- --------------------
John H. Blankley
/s/ EUGENE F. SWEENEY Director March 18, 1998
- ---------------------
Eugene F. Sweeney
</TABLE>
<PAGE>
POWER OF ATTORNEY OF SEABULK TANKERS, LTD.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael Joseph and John F.
Kearney, or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-4 and any
and all amendments (including post-effective amendments) to the Registration
Statement on Form S-4, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney has been signed by the following persons in the
capacities and on the dates indicated.
SEABULK TANKERS, LTD.
By: HVIDE MARINE TRANSPORT, INCORPORATED
General Partner of Seabulk Tankers, Ltd.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
- -----------------
J. Erik Hvide Executive Officer and Director of
Hvide Marine Transport, Incorporated
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
- --------------------
John H. Blankley Officer and Director of Hvide Marine
Transport, Incorporated
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
- ---------------------
Eugene F. Sweeney of Hvide Marine Transport, Incorporated
</TABLE>
<PAGE>
POWER OF ATTORNEY OF TAMPA BAY TOWING, INC.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael Joseph and John F.
Kearney, or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-4 and any
and all amendments (including post-effective amendments) to the Registration
Statement on Form S-4, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ J. ERIK HVIDE President, Chief Executive Officer March 18, 1998
- ------------------------------
J. Erik Hvide and Director
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
John H. Blankley Officer, Treasurer and Director
/s/ EUGENE F. SWEENEY Executive Vice President--Operations and March 18, 1998
- ---------------------
Eugene F. Sweeney Director
/s/ JAMES S. KIMBRELL Executive Vice President March 18, 1998
- ---------------------
James S. Kimbrell
/s/ JAMES C. BRANTNER Executive Vice President March 18, 1998
- ---------------------
James C. Brantner
</TABLE>
<PAGE>
POWER OF ATTORNEY OF SEABULK TRANSMARINE PARTNERSHIP, LTD.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael Joseph and John F.
Kearney, or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-4 and any
and all amendments (including post-effective amendments) to the Registration
Statement on Form S-4, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney has been signed by the following persons in the
capacities and on the dates indicated.
SEABULK TRANSMARINE PARTNERSHIP, LTD.
By: SEABULK TANKERS, LTD.
General Partner of Seabulk America Partnership, Ltd.
By: HVIDE MARINE TRANSPORT, INCORPORATED
General Partner of Seabulk Tankers, Ltd.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
- -----------------
J. Erik Hvide Executive Officer and Director of
Hvide Marine Transport, Incorporated
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
- --------------------
John H. Blankley Officer and Director of Hvide Marine
Transport, Incorporated
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
- ---------------------
Eugene F. Sweeney of Hvide Marine Transport, Incorporated
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears immediately below constitutes and appoints Michael Joseph and John F.
Kearney, or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-4 and any
and all amendments (including post-effective amendments) to the Registration
Statement on Form S-4, and to file the same with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ J. ERIK HVIDE Chairman of the Board, President, Chief March 18, 1998
- ------------------------------
J. Erik Hvide Executive Officer and Director of the
companies on the attached sheet
/s/ JOHN H. BLANKLEY Executive Vice President--Chief Financial March 18, 1998
- --------------------
John H. Blankley Officer and Director of the companies
on the attached sheet
/s/ EUGENE F. SWEENEY Executive Vice President and Director March 18, 1998
Eugene F. Sweeney of the companies on the attached
sheet
</TABLE>
<PAGE>
HVIDE MARINE INTERNATIONAL, INC.
HVIDE MARINE TRANSPORT, INCORPORATED
SEABULK ALKATAR, INC
SEABULK ARABIAN, INC.
SEABULK ARCTIC EXPRESS, INC
SEABULK ARIES II, INC.
SEABULK ARZANAH, INC.
SEABULK BARRACUDA, INC.
SEABULK BECKY, INC.
SEABULK BETSY, INC.
SEABULK BRAVO, INC.
SEABULK BUL HANIN, INC.
SEABULK CAPRICORN, INC.
SEABULK CARDINAL, INC.
SEABULK CAROL, INC.
SEABULK CHAMP, INC.
SEABULK CHEMICAL CARRIERS, INC.
SEABULK CHRISTOPHER, INC.
SEABULK CLIPPER, INC.
SEABULK COMMAND, INC.
SEABULK CONDOR, INC.
SEABULK CONSTRUCTOR, INC.
SEABULK COOT I, INC.
SEABULK COOT II, INC.
SEABULK CORMORANT, INC.
SEABULK CYGNET I, INC.
SEABULK CYGNET II, INC.
SEABULK DANAH, INC.
SEABULK DAYNA, INC.
SEABULK DEBBIE, INC.
SEABULK DEFENDER, INC.
SEABULK DIANA, INC.
SEABULK DISCOVERY, INC.
SEABULK DUKE, INC.
SEABULK EAGLE II, INC.
SEABULK EAGLE, INC.
SEABULK EMERALD, INC.
SEABULK ENERGY, INC.
SEABULK EXPLORER, INC.
SEABULK FALCON II, INC.
SEABULK FALCON, INC.
SEABULK FREEDOM, INC.
SEABULK FULMAR, INC.
SEABULK GABRIELLE, INC.
SEABULK GANNET I, INC.
SEABULK GANNET II, INC.
SEABULK GAZELLE, INC.
SEABULK GIANT, INC.
SEABULK GREBE, INC.
SEABULK HABARA, INC.
SEABULK HAMOUR, INC.
SEABULK HARRIER, INC.
<PAGE>
SEABULK HATTA, INC.
SEABULK HAWK, INC.
SEABULK HERCULES, INC.
SEABULK HERON, INC.
SEABULK HORIZON, INC.
SEABULK HOUBARE, INC.
SEABULK HUNTER, INC.
SEABULK IBEX, INC.
SEABULK ISABEL, INC.
SEABULK JEBEL ALI, INC.
SEABULK KESTREL, INC.
SEABULK KING, INC.
SEABULK KNIGHT, INC.
SEABULK LAKE EXPRESS, INC.
SEABULK LARA, INC.
SEABULK LARK, INC.
SEABULK LIBERTY, INC.
SEABULK LULU, INC.
SEABULK MAINTAINER, INC.
SEABULK MALLARD, INC.
SEABULK MARLENE, INC.
SEABULK MARTIN I, INC.
SEABULK MARTIN II, INC.
SEABULK MASTER, INC.
SEABULK MERLIN, INC.
SEABULK MUBARRAK, INC.
SEABULK NADA, INC.
SEABULK NEPTUNE, INC.
SEABULK OCEAN SYSTEMS CORPORATION
SEABULK OCEAN SYSTEMS HOLDINGS CORPORATION
SEABULK OFFSHORE ABU DHABI, INC.
SEABULK OFFSHORE DUBAI, INC.
SEABULK OFFSHORE GLOBAL HOLDINGS, INC.
SEABULK OFFSHORE HOLDINGS, INC.
SEABULK OFFSHORE INTERNATIONAL, INC.
SEABULK OFFSHORE OPERATORS, INC.
SEABULK ORYX, INC.
SEABULK OSPREY, INC.
SEABULK PELICAN, INC.
SEABULK PENGUIN I, INC.
SEABULK PENGUIN II, INC.
SEABULK PENNY, INC.
SEABULK PERSISTENCE, INC.
SEABULK PETREL, INC.
SEABULK PLOVER, INC.
SEABULK POWER, INC.
SEABULK PRIDE, INC.
SEABULK PRINCE, INC.
SEABULK PRINCESS, INC.
SEABULK PUFFIN, INC.
SEABULK QUEEN, INC.
SEABULK RAVEN, INC.
<PAGE>
SEABULK ROOSTER, INC.
SEABULK RUBY, INC.
SEABULK SALIHU, INC.
SEABULK SAPPHIRE, INC.
SEABULK SARA, INC.
SEABULK SEAHORSE, INC.
SEABULK SENGALI, INC.
SEABULK SERVICE, INC.
SEABULK SHARI, INC.
SEABULK SHINDAGA, INC.
SEABULK SKUA I, INC.
SEABULK SNIPE, INC.
SEABULK STAR, INC.
SEABULK SUHAIL, INC.
SEABULK SWAN, INC.
SEABULK SWIFT, INC.
SEABULK TAURUS, INC.
SEABULK TENDER, INC.
SEABULK TERN, INC.
SEABULK TIMS I, INC.
SEABULK TITAN, INC.
SEABULK TOOTA, INC.
SEABULK TOUCAN, INC.
SEABULK TRANSMARINE II, INC.
SEABULK TRADER, INC.
SEABULK TREASURE ISLAND, INC.
SEABULK UMM SHAIF, INC.
SEABULK VERITAS, INC.
SEABULK VIRGO I, INC.
SEABULK VOYAGER, INC.
SEABULK ZAKUM, INC.
Exhibit 25.1
=====================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
HVIDE MARINE INCORPORATED
(Exact name of obligor as specified in its charter)
Florida 65-0524593
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
2200 Eller Drive, P.O. Box 13038
Fort Lauderdale, Florida 33316
(Address of principal executive offices) (Zip code)
----------------------
Senior Notes due 2008
(Title of the indenture securities)
=====================================================================
<PAGE>
1. General information. Furnish the following information as to the
Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 12th day of March, 1998.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
LETTER OF TRANSMITTAL
HVIDE MARINE INCORPORATED
OFFER TO EXCHANGE ITS
83/8% SENIOR NOTES DUE 2008,
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS OUTSTANDING
83/8% SENIOR NOTES DUE 2008
PURSUANT TO THE PROSPECTUS DATED , 1998
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
, 1998 UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN PRIOR
TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent for The Exchange Offer Is
The Bank of New York
By Registered or Certified Mail: By Hand or Overnight Courier:
The Bank of New York The Bank of New York
101 Barclay Street, 7E 101 Barclay Street
New York, New York 10286 Corporate Trust Services Window
Attn: Reorganization Section New York, New York 10286
Attn: Reorganization Section
Facsimile Transmissions:
(Eligible Institutions Only)
(212) 571-3080
Attn:
To Confirm by Telephone
or for Information Call:
(212) 815-6333
Delivery of this instrument to an address other than as set forth above
or transmission of this instrument via a facsimile number other than the one
listed above will not constitute a valid delivery.
The undersigned acknowledges receipt of the Prospectus, dated , 1998
(the "Prospectus") of Hvide Marine Incorporated (the "Company") and the related
Letter of Transmittal (the "Letter of Transmittal"), which together describe the
Company's offer (the "Exchange Offer") to exchange $1,000 principal amount of
its 83/8% Senior Notes Due 2008 (the "Exchange Notes"), which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a Registration Statement, for each $1,000 principal amount of its
outstanding 83/8% Senior Notes Due 2008
1
<PAGE>
(the "Notes"), of which $300,000,000 principal amount is outstanding. The term
"Expiration Date" shall mean 5:00 p.m., New York City time, on , 1998, unless
the Company, in its sole discretion, extends the Exchange Offer, in which case
the term shall mean the latest date and time to which the Exchange Offer is
extended. The term "Holder" with respect to the Exchange Offer means any person
in whose name Notes are registered on the books of the Company or any other
person who has obtained a properly completed bond power from the registered
holder. Capitalized terms used but not defined herein have the respective
meanings set forth in the Prospectus.
This Letter of Transmittal is to be used by holders of Notes if (i)
certificates representing the Notes are to be physically delivered to the
Exchange Agent herewith, (ii) tender of the Notes is to be made by book-entry
transfer to an account maintained by The Bank of New York (the "Exchange Agent")
at The Depository Trust Company (the "Book-Entry Transfer Facility" or "DTC")
pursuant to the procedures set forth in the Prospectus under the caption "The
Exchange Offer-Procedures for Tendering Old Notes" by any financial institution
that is a participant in the Book-Entry Transfer Facility and whose name appears
on a security position listing as the owner of Notes (such participants acting
on behalf of holders, are referred to herein, together with such holders, as
"Authorized Holders") or (iii) tender of the Notes is to be made according to
the guaranteed delivery procedures described in the Prospectus under the caption
"The Exchange Offer-Guaranteed Delivery Procedures." See Instruction 2.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders who wish to tender their Notes must complete this
letter in its entirety.
2
<PAGE>
[__] CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE BOOK-ENTRY
TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
Account Number:
Transaction Code Number:
Principal Amount of Tendered Notes:
If Holders desire to tender Notes pursuant to the Exchange Offer and
(i) time will not permit this Letter of Transmittal, certificates representing
Notes or other required document to reach the Exchange Agent prior to the
Expiration Date, or (ii) the procedures for book-entry transfer cannot be
completed prior to the Expiration Date, such Holders may effect a tender of such
Notes in accordance with the guaranteed delivery procedures set forth in the
Prospectus under the caption "The Exchange Offer-Guaranteed Delivery
Procedures." See Instruction 2 below.
[__] CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY DELIVERED TO THE EXCHANGE AGENT AND COMPLETE
THE FOLLOWING (SEE INSTRUCTION 2):
Name of Registered or Acting Holder(s):
Window Ticket No. (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Eligible Institution
that Guaranteed Delivery:
If Delivered by Book-Entry Transfer,
the Account Number:
Transaction Code Number:
[__] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE NOTES FOR YOUR OWN
ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO AND COMPLETE
THE FOLLOWING:
Deliver Prospectuses to:
Name:
Address:
Attention:
PLEASE NOTE: THE COMPANY HAS AGREED THAT, FOR A PERIOD OF ONE YEAR AFTER THE
EXPIRATION DATE, IT WILL MAKE COPIES OF THE PROSPECTUS AVAILABLE TO ANY
PARTICIPATING BROKER-DEALER FOR USE IN CONNECTION WITH RESALES OF THE EXCHANGE
NOTES.
3
<PAGE>
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING THE FOLLOWING BOXES
BOX 1
DESCRIPTION OF NOTES*
A holder that is a participant in DTC's system may utilize its
Automated Tender Offer Program to tender Notes.
List below the Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, the certificate numbers and principal
amount of Notes should be listed on a separate signed schedule affixed hereto.
<TABLE>
<CAPTION>
Principal Amount
Name(s) and Address(es) of Aggregate Principal Tendered (must be
Registered Holder(s) Certificate Amount Represented an Integral Multiple
(Please fill in, if blank) Number(s) by Certificate(s) of $1,000)**
<S> <C> <C> <C>
$ $
Totals: $ $
</TABLE>
* Need not be completed by Holders tendering by book-entry transfer.
** Unless indicated in the column labeled "Principal Amount Tendered," any
tendering Holder of Notes will be deemed to have entered the entire aggregate
principal amount represented by the column labeled "Aggregate Principal Amount
Represented by Certificate(s)."
The minimum permitted tender is $1,000 in principal amount of Notes. All other
tenders must be in integral multiples of $1,000.
4
<PAGE>
BOX 2
SPECIAL REGISTRATION
INSTRUCTIONS
(See Instructions 4, 5 and 6)
To be completed ONLY if certificates for Notes in a principal amount
not tendered, or Exchange Notes issued in exchange for Notes accepted for
exchange, are to be issued in the name of someone other than the undersigned.
Issue certificate(s) to:
Name:
(Please Print)
Address:
(Include Zip Code)
(Tax Identification or Social Security Number)
BOX 3
SPECIAL REGISTRATION
INSTRUCTIONS
(See Instructions 4, 5 and 6)
To be completed ONLY if certificates for Notes in a principal amount
not tendered, or Exchange Notes issued in exchange for Notes accepted for
exchange, are to be sent to someone other than the undersigned, or to the
undersigned at an address other than that shown above.
Deliver certificate(s) to:
Name:
Address:
(Include Zip Code)
(Tax Identification or Social Security Number)
5
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the
undersigned hereby tenders to Hvide Marine Incorporated (the "Company"), the
principal amount of Notes indicated above.
Subject to and effective upon the acceptance for exchange of the
principal amount of Notes tendered in accordance with this Letter of
Transmittal, the undersigned sells, assigns and transfers to, or upon the order
of, the Company all right, title and interest in and to the Notes tendered
hereby. The undersigned hereby irrevocably constitutes and appoints the Exchange
Agent its agent and attorney-in-fact (with full knowledge that the Exchange
Agent also acts as the agent of the Company) with respect to the tendered Notes
with the full power of substitution to (i) present such Notes and all evidences
of transfer and authenticity to, or transfer ownership of such Notes on the
account books maintained by the Book-Entry Transfer Facility to or upon, the
order of, the Company, (ii) deliver certificates for such Notes to the Company
and deliver all accompanying evidences of transfer and authenticity to, or upon
the order of, the Company and (iii) present such Notes for transfer on the books
of the Company and receive all benefits and otherwise exercise all rights of
beneficial ownership of such Notes, all in accordance with the terms of the
Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Notes tendered
hereby and that the Company will acquire good, valid and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claims, when the same are acquired by the Company.
The undersigned hereby further represents that any Exchange Notes acquired in
exchange for Notes tendered hereby will have been acquired in the ordinary
course of business of the person receiving such Exchange Notes, whether or not
such person is the undersigned, that neither the undersigned nor any other such
person has any arrangement or understanding with any person to participate in
the distribution of such Exchange Notes and that neither the undersigned nor any
such other person is an "affiliate," as defined in Rule 405 under the Securities
Act of 1933, as amended, of the Company. In addition, the undersigned and any
such person acknowledge that (a) any person participating in the Exchange Offer
for the purpose of distributing the Exchange Notes must, in the absence of an
exemption therefrom, comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale of the
Exchange Notes and cannot rely on the position of the Staff of the Securities
and Exchange Commission enunciated in no-action letters and (b) failure to
comply with such requirements in such instance could result in the undersigned
or such person incurring liability under the Securities Act for which the
undersigned or such person is not indemnified by the Company. The undersigned
will, upon request, execute and deliver any additional documents deemed by the
Exchange Agent or the Company to be necessary or desirable to complete the
assignment, transfer and purchase of the Notes tendered hereby. If the
undersigned is not a broker-dealer, the undersigned represents that it is not
engaged in and does not intend to engage in, a distribution of Exchange Notes.
If the undersigned is a broker-dealer that will receive Exchange Notes for its
own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a Prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a Prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. Unless the undersigned has checked the applicable box above
for Participating Broker-Dealers, the Company will assume that the undersigned
is not a Participating Broker-Dealer.
6
<PAGE>
For purposes of the Exchange Offer, the Company shall be deemed to have
accepted validly tendered Notes when, as and if the Company has given oral or
written notice thereof to the Exchange Agent.
If any Notes tendered herewith are not accepted for exchange pursuant
to the Exchange Offer for any reason, certificates for any such unaccepted Notes
will be returned, without expense, to the undersigned at the address shown below
or to a different address as may be indicated herein in Box 3 under "Special
Delivery Instructions" as promptly as practicable after the Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned, and every obligation of the undersigned under this Letter of
Transmittal shall be binding upon the undersigned's heirs, personal
representative, successors and assigns.
The undersigned understands that tenders of Notes pursuant to the
procedures described under the caption "The Exchange Offer-Procedures for
Tendering Old Notes" in the Prospectus and in the instructions hereto will
constitute a binding agreement between the undersigned and the Company upon the
terms and subject to the conditions of the Exchange Offer, subject only to
withdrawal of such tenders on the terms set forth in the Prospectus under the
caption "The Exchange Offer-Withdrawal Rights."
Unless otherwise indicated in Box 2 under "Special Registration
Instructions," please issue the certificates (or electronic transfers)
representing the Exchange Notes issued in exchange for the Notes accepted for
exchange and any certificates (or electronic transfers) for Notes not tendered
or not exchanged, in the name(s) of the undersigned. Similarly, unless otherwise
indicated in Box 3 under "Special Delivery Instructions," please send the
certificates, if any, representing the Exchange Notes issued in exchange for the
Notes accepted for exchange and any certificates for Notes not tendered or not
exchanged (and accompanying documents, as appropriate) to the undersigned at the
address shown below in the undersigned's signature(s). In the event that both
"Special Registration Instructions" and "Special Delivery Instructions" are
completed, please issue the certificates representing the Exchange Notes issued
in exchange for the Notes accepted for exchange in the name(s) of, and return
any certificates for Notes not tendered or not exchanged to, the person(s) so
indicated. The undersigned understands that the Company has no obligation
pursuant to the "Special Registration Instructions" and "Special Delivery
Instructions" to transfer any Notes from the name of the registered Holder(s)
thereof if the Company does not accept for exchange any of the Notes so
tendered.
Holders who wish to tender their Notes and (i) whose Notes are not
immediately available or (ii) who cannot deliver the Notes, this Letter of
Transmittal or any other documents required hereby to the Exchange Agent prior
to the Expiration Date, may tender their Notes according to the guaranteed
delivery procedures set forth in the Prospectus under the caption "The Exchange
Offer-Guaranteed Delivery Procedures." See Instruction 2 regarding the
completion of this Letter of Transmittal printed below.
The lines below must be signed by the registered holder(s) exactly as
their name(s) appear(s) on the Notes or by a participant in the Book-Entry
Transfer Facility, exactly as such participant's name appears on a security
position listing as the owner of the Notes, or by person(s) authorized to become
registered holder(s) by a properly completed bond power from the registered
holder(s), a copy of which must be transmitted with this Letter of Transmittal.
If Notes to which this Letter of Transmittal relate are held of record by two or
more joint holders, then all such holders must sign this Letter of Transmittal.
7
<PAGE>
PLEASE SIGN HERE WHETHER OR NOT
NOTES ARE BEING PHYSICALLY TENDERED HEREBY
(See Instruction 5)
The undersigned, by completing Box 1 entitled "Description of Notes"
above and signing this letter, will be deemed to have tendered the Notes as set
forth in such Box.
Name of Holder:
Signature(s) of Registered Holder(s) or Authorized Signatory:
Date
Date
Area Code and Telephone Number:
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, then such person must (i) set forth his or her full
title below and (ii) submit evidence satisfactory to the Company of such
person's authority so to act. See Instruction 5 regarding the completion of this
Letter of Transmittal printed below.
Name(s):
(Please Print)
Capacity:
Address:
(Include Zip Code)
8
<PAGE>
MEDALLION SIGNATURE GUARANTEE (If
required by Instruction 5)
Certain Signatures must be Guaranteed by an Eligible Institution
Signature(s) Guaranteed by an Eligible Institution:
(Authorized Signature)
(Title)
(Name of Firm)
(Address, Include Zip Code)
(Area Code and Telephone Number)
Dated:
9
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR NOTES OR
BOOK-ENTRY CONFIRMATIONS. Certificates representing the tendered Notes (or a
confirmation of book-entry transfer into the Exchange Agent's account with the
Book-Entry Transfer Facility for tendered Notes transferred electronically), as
well as a properly completed and duly executed copy of this Letter of
Transmittal (or facsimile thereof), a Substitute Form W-9 (or facsimile thereof)
and any other documents required by this Letter of Transmittal must be received
by the Exchange Agent at its address set forth herein prior to the Expiration
Date. The method of delivery of certificates for Notes and all other required
documents is at the election and sole risk of the tendering holder and delivery
will be deemed made only when actually received by the Exchange Agent. If
delivery is by mail, registered mail with return receipt requested, properly
insured, is recommended. As an alternative to delivery by mail, the holder may
wish to use an overnight or hand delivery service. In all cases, sufficient time
should be allowed to assure timely delivery. Neither the Company nor the
Exchange Agent is under an obligation to notify any tendering holder of the
Company's acceptance of tendered Notes prior to the completion of the Exchange
Offer.
2. GUARANTEED DELIVERY PROCEDURES. Holders who wish to tender their
Notes but whose Notes are not immediately available and who cannot deliver their
certificates for Notes (or comply with the procedures for book-entry transfer
prior to the Expiration Date), the Letter of Transmittal and any other documents
required by the Letter of Transmittal to the Exchange Agent prior to the
Expiration Date must tender their Notes according to the guaranteed delivery
procedures set forth below. Pursuant to such procedures:
(i) such tender must be made by or through a firm which is a
member of a registered national securities exchange or of the
National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or
correspondent in the United States (an "Eligible
Institution");
(ii) prior to the Expiration Date, the Exchange Agent must
have received from the holder and the Eligible Institution a
properly completed and duly executed Notice of Guaranteed
Delivery (by facsimile transmission, mail, or hand delivery)
setting forth the name and address of the holder, the
certificate number or numbers of the tendered Notes, and the
principal amount of tendered Notes and stating that the tender
is being made thereby and guaranteeing that, within five
Nasdaq National Market ("NNM") trading days after the date of
execution of such Notice of Guaranteed Delivery, the Letter of
Transmittal (or facsimile thereof), together with the tendered
Notes (or a confirmation of book-entry transfer into the
Exchange Agent's account with the Book-Entry Transfer Facility
for Notes transferred electronically) and any other required
documents will be deposited by the Eligible Institution with
the Exchange Agent; and
10
<PAGE>
(iii) such properly completed and executed Letter of
Transmittal and certificates representing the tendered Notes
in proper form for transfer (or a confirmation of book-entry
transfer into the Exchange Agent's account with the Book-Entry
Transfer Facility for Notes transferred electronically) must
be received by the Exchange Agent within five NNM trading days
after the date of execution of the Notice of Guaranteed
Delivery.
Any holder who wishes to tender Notes pursuant to the guaranteed
delivery procedures described above must ensure that the Exchange Agent receives
the Notice of Guaranteed Delivery relating to such Notes prior to the Expiration
Date. Failure to complete the guaranteed delivery procedures outlined above will
not, of itself, affect the validity or effect a revocation of any Letter of
Transmittal form properly completed and executed by a Holder who attempted to
use the guaranteed delivery person.
3. TENDER BY HOLDER. Only a holder of Notes may tender such Notes in
the Exchange Offer. Any beneficial owner of Notes who is not the registered
holder and who wishes to tender should arrange with such holder to execute and
deliver this Letter of Transmittal on such owner's behalf or must, prior to
completing and executing this Letter of Transmittal and delivering such Notes,
either make appropriate arrangements to register ownership of the Notes in such
owner's name or obtain a properly completed bond power from the registered
holder.
4. PARTIAL TENDERS. Tenders of Notes will be accepted only in integral
multiples of $1,000 in principal amount. If less than the entire principal
amount of Notes is tendered, the tendering holder should fill in the principal
amount tendered in the column labeled "Aggregate Principal Amount Tendered" of
the box entitled "Description of Notes" (Box 1) above. The entire principal
amount of Notes delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated. If the entire principal amount of Notes is
not tendered, Notes for the principal amount of Notes not tendered and Exchange
Notes exchanged for any Notes tendered will be sent to the holder at his or her
registered address (or transferred to the account of the Book-Entry Facility
designated above), unless a different address (or account) is provided in the
appropriate box on this Letter of Transmittal, as soon as practicable following
the Expiration Date.
5. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND
ENDORSEMENTS; MEDALLION GUARANTEE OF SIGNATURE. If this Letter of Transmittal is
signed by the registered holder(s) of the Notes tendered herewith, the
signatures must correspond with the name(s) as written on the face of the
tendered Notes without alteration, enlargement, or any change
whatsoever. If this Letter of Transmittal is signed by a participant in the
Book-Entry Transfer Facility, the signature must correspond with the name as it
appears on the security position listing as the owner of the Notes.
If any of the tendered Notes are owned of record by two or more joint
owners, all such owners must sign this Letter of Transmittal. If any tendered
Notes are held in different names on several Notes, it will be necessary to
complete, sign, and submit as many separate copies of the Letter of Transmittal
documents as there are names in which tendered Notes are held.
If this Letter of Transmittal is signed by the registered holder or
Acting Holder, and Exchange Notes are to be issued and any untendered or
unaccepted principal amount of Notes are to be reissued or returned to the
registered holder or Acting Holder, then, the registered holder or Acting Holder
need not and should not endorse any tendered Notes nor provide a separate bond
power. In any other case
11
<PAGE>
(including if this Letter of Transmittal is not signed by the Acting Holder),
the registered holder or Acting Holder must either properly endorse the Notes
tendered or transmit a properly completed separate bond power with this Letter
of Transmittal (in either case, executed exactly as the name(s) of the
registered holder(s) appear(s) on such Notes, and, with respect to a participant
in the Book-Entry Transfer Facility whose name appears on a security position
listing as the owner of Notes, exactly as the name(s) of the participant(s)
appear(s) on such security position listings), with the signature(s) on the
endorsement or bond power guaranteed by an Eligible Institution unless such
certificates or bond powers are signed by an Eligible Institution.
If this Letter of Transmittal or any Notes or bond powers are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations, or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and evidence satisfactory to the Company
of their authority to so act must be submitted with this Letter of Transmittal.
No medallion signature guarantee is required if (i) this Letter of
Transmittal is signed by the registered holder(s) of the Notes tendered herewith
(or by a participant in the Book-Entry Transfer Facility whose name appears on a
security position listing as the owner of the Tendered Notes) and the issuance
of Exchange Notes (and any Notes not tendered or not accepted) are to be issued
directly to such registered holder(s) (or, if signed by a participant in the
Book-Entry Transfer Facility, any Exchange Notes or Notes not tendered or not
accepted are to be deposited to such participant's account at such Book-Entry
Transfer Facility) and neither the "Special Delivery Instructions" (Box 3) nor
the "Special Registration Instructions" (Box 2) has been completed, or (ii) such
Notes are tendered for the account of an Eligible Institution. In all other
cases, all signatures on this Letter of Transmittal must be guaranteed by an
Eligible Institution.
6. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS. Tendering holders
should indicate, in the applicable box, the name and address (or account at the
Book-Entry Transfer Facility) in which the Exchange Notes and/or substitute
Notes for principal amounts not tendered or not accepted for exchange are to be
sent (or deposited), if different from the name and address or account of the
person signing this Letter of Transmittal. In the case of issuance in a
different name, the employer identification number or social security number of
the person named must also be indicated and the indicated and the tendering
holders should complete the applicable box.
If no such instructions are given, the Exchange Notes (and any Notes
not tendered or not accepted) will be issued in the name of and sent to the
Acting Holder of the Notes or deposited at such Acting Holders' account at the
Book-Entry Transfer Facility.
7. TRANSFER TAXES. The Company will pay all transfer taxes, if any,
applicable to the sale and transfer of Notes to it or its order pursuant to the
Exchange Offer. If, however, a transfer tax is imposed for any reason other than
the transfer and sale of Notes to the Company or its order pursuant to the
Exchange Offer, then the amount of any such transfer taxes (whether imposed on
the registered holder or on any other person) will be payable by the tendering
holder. If satisfactory evidence of payment of such taxes or exemption from
taxes therefrom is not submitted with this Letter of Transmittal, the amount of
transfer taxes will be billed directly to such tendering holder.
Except as provided in this Instruction 7, it will not be necessary for
transfer tax stamps to be affixed to the Notes listed in this Letter of
Transmittal.
12
<PAGE>
8. TAX IDENTIFICATION NUMBER. Federal income tax law required that a
holder of any Notes which are accepted for exchange must provide the Company (as
payor) with its correct taxpayer identification number ("TIN"), which, in the
case of a holder who is an individual, is his or her social security number. If
the Company is not provided with the correct TIN, the Holder may be subject to a
$50 penalty imposed by Internal Revenue Service. (If withholding results in an
over-payment of taxes, a refund may be obtained.) Certain holders (including,
among other, all corporations and certain foreign individuals) are not subject
to these backup withholding and reporting requirements. See the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional instructions.
To prevent backup withholding, each tendering holder must provide such
holder's correct TIN by completing the Substitute Form W-9 set forth herein,
certifying that the TIN provided is correct (or that such holder is awaiting a
TIN), and that (i) the holder has not been notified by the Internal Revenue
Service that such holder is subject to backup withholding as a result of failure
to report a interest or dividends or (ii) the Internal Revenue Service has
notified the holder that such holder is no longer subject to backup withholding.
If the Notes are registered in more than one name or are not in the name of the
actual owner, see the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for information on which TIN to
report.
The Company reserves the right in its sole discretion to take whatever
steps are necessary to comply with the Company's obligation regarding backup
withholding.
9. VALIDITY OF TENDERS. All questions as to the validity, form,
eligibility (including time of receipt), and acceptance of tendered Notes will
be determined by the Company, in its sole discretion, which determination will
be final and binding. The Company reserves the right to reject any and all Notes
not validly tendered or any Notes, the Company's acceptance of which would, in
the opinion of the Company or its counsel, be unlawful. The Company also
reserves the right to waive any conditions of the Exchange Offer or defects or
irregularities in tenders of Notes as to any ineligibility of any holder who
seeks to tender Notes in the Exchange Offer. The interpretation of the terms and
conditions of the Exchange Offer (includes this Letter of Transmittal and the
instructions hereto) by the Company shall be final and binding on all parties.
Unless waived, any defects or irregularities in connection with tenders of Notes
must be cured within such time as the Company shall determine. The Company will
use reasonable efforts to give notification of defects or irregularities with
respect to tenders of Notes, but shall not incur any liability for failure to
give such notification.
10. WAIVER OF CONDITIONS. The Company reserves the absolute right to
amend, waive, or modify specified conditions in the Exchange Offer in the case
of any tendered Notes.
11. NO CONDITIONAL TENDER. No alternative, conditional, irregular, or
contingent tender of Notes on transmittal of this Letter of Transmittal will be
accepted.
12. MUTILATED, LOST, STOLEN, OR DESTROYED NOTES. Any tendering holder
whose Notes have been mutilated, lost, stolen, or destroyed should contact the
Exchange Agent at the address indicated above for further instruction.
13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and
requests for assistance and requests for additional copies of the Prospectus may
be directed to the Exchange Agent
13
<PAGE>
at the address specified in the Prospectus. Holders may also contact their
broker, dealer, commercial bank, trust company, or other nominee for assistance
concerning the Exchange Offer.
14. ACCEPTANCE OF TENDERED NOTES AND ISSUANCE OF EXCHANGE NOTES; RETURN
OF NOTES. Subject to the terms and conditions of the Exchange Offer, the Company
will accept for exchange all validly tendered Notes as soon as practicable after
the Expiration Date and will issue Exchange Notes therefor as soon as
practicable thereafter. For purposes of the Exchange Offer, the Company shall be
deemed to have accepted tendered Notes when, as and if the Company has given
written and oral notice thereof to the Exchange Agent. If any tendered Notes are
not exchanged pursuant to the Exchange Offer for any reason, such unexchanged
Notes will be returned, without expense, to the undersigned at the address shown
above (or credited to the undersigned's account at the Book-Entry Transfer
Facility designated above) or at a different address as may be indicated under
"Special Delivery Instructions."
15. WITHDRAWAL. Tenders may be withdrawn only pursuit to the limited
withdrawal rights set forth in the Prospectus under the caption "The Exchange
Offer-Withdrawal Rights."
14
<PAGE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(See Instruction 8)
PAYER'S NAME: THE BANK OF NEW YORK
PART 1--PLEASE PROVIDE YOUR TIN:
TIN IN THE BOX AT RIGHT AND Social Security Number or
CERTIFY BY SIGNING AND Employer Identification Number
DATING BELOW.
<TABLE>
<S> <C>
SUBSTITUTE
FORM W-9 PART 2--TIN Applied For [_]
DEPARTMENT OF
THE TREASURY CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
INTERNAL
REVENUE SERVICE (1) the number shown on this form is my
correct Taxpayer Identification Number
(or I am waiting for a number to be
issued to me);
PAYOR'S REQUEST FOR (2) I am not subject to backup withholding either because: (i) I am exempt from
TAXPAYER IDENTIFICATION backup withholding, (ii) I have not been notified by the Internal Revenue Service
NUMBER ("tin") AND (the "IRS") that I am subject to backup withholding as a result of a failure to
CERTIFICATION report all interests or dividends, or (iii) the IRS has notified me that I am no
longer subject to backup withholding; and
(3) any other information provided on this form is true and correct.
</TABLE>
SIGNATURE DATE
You must cross out item(iii) in Part (2) of the above certification if you have
been notified by the IRS that you are subject to backup withholding because of
underreporting of interest or dividends on your tax return and you have not been
notified by the IRS that you are no longer subject to backup withholding.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 2 OF
SUBSTITUTE FORM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of the exchange, 31 percent
of all reportable payments made to me thereafter will be withheld until I
provide a number.
Signature Date
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
15
NOTICE OF GUARANTEED DELIVERY
HVIDE MARINE INCORPORATED
OFFER TO EXCHANGE ITS
83/8% SENIOR NOTES DUE 2008,
WHICH HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED,
FOR ANY AND ALL OF ITS OUTSTANDING
83/8% SENIOR NOTES DUE 2008
PURSUANT TO THE PROSPECTUS DATED , 1998
The Exchange Agent for The Exchange Offer Is
The Bank of New York
By Registered or Certified Mail: By Hand or Overnight Courier:
The Bank of New York The Bank of New York
101 Barclay Street, 7E 101 Barclay Street
New York, New York 10286 Corporate Trust Services Window
Attn: Reorganization Section New York, New York 10286
Attn: Reorganization Section
Facsimile Transmissions:
(Eligible Institutions Only)
(212) 571-3080
Attn:
To Confirm by Telephone
or for Information Call:
(212) 815-6333
Delivery of this instrument to an address other than as set forth above
or transmission of this instrument via a facsimile number other than the one
listed above will not constitute a valid delivery.
This form must be used by a holder of 83/8% Senior Notes due 2008 (the
"Notes") of Hvide Marine Incorporated (the "Company") who wishes to tender Notes
to the Exchange Agent pursuant to the guaranteed delivery procedures described
in the "The Exchange Offer-Guaranteed Delivery Procedures" of the Prospectus,
dated , 1998 (the "Prospectus"), and in Instruction 2 to the related Letter of
Transmittal. Any holder who wishes to tender Notes pursuant to such guaranteed
delivery procedures must ensure that the Exchange Agent receives this Notice of
Guaranteed Delivery on or prior to the Expiration Date of the Exchange Offer.
Capitalized terms not defined herein have the meanings ascribed to them in the
Prospectus or the Letter of Transmittal.
This form is not to be used to guarantee signatures. If a signature on
the Letter of Transmittal is required to be guaranteed by an "Eligible
Institution" under the instructions thereto, such signature
1
<PAGE>
guarantee must appear in the applicable space provided in the signature box on
the Letter of Transmittal.
LADIES AND GENTLEMEN:
The undersigned hereby tenders to the Company, upon the terms and
subject to the conditions set forth in the Prospectus and the related Letter of
Transmittal, receipt of which is hereby acknowledged, the principal amount of
Notes set forth below pursuant to the guaranteed delivery procedures set forth
in the Prospectus and in Instruction 2 of the Letter of Transmittal. The
undersigned hereby tenders the Notes listed below:
<TABLE>
<S> <C> <C>
CERTIFICATE NUMBER(S) (IF KNOWN) OF NOTES OR ACCOUNT AGGREGATE PRINCIPAL AGGREGATE PRINCIPAL
NUMBER AT THE BOOK-ENTRY FACILITY AMOUNT REPRESENTED AMOUNT TENDERED
</TABLE>
Total(s)
PLEASE SIGN AND COMPLETE
Signatures of Registered Holder(s) or Date: , 1998
Authorized Signatory: Address:
Area Code and Telephone No.:
Name of Registered Holder(s):
2
<PAGE>
This Notice of Guaranteed Delivery must be signed by the Holder(s) exactly as
their name(s) appear on certificates for Notes or on a security position listing
as the owner of Notes, or by person(s) authorized to become Holder(s) by
endorsements and documents transmitted with this Notice of Guaranteed Delivery.
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must provide the following information.
Please print name(s) and address(es)
Name(s):________________________________________________________________________
- --------------------------------------------------------------------------------
Capacity:_______________________________________________________________________
Address(es):____________________________________________________________________
- --------------------------------------------------------------------------------
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a firm which is a member of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
is a commercial bank or trust company having an office or correspondent in the
United States, or is otherwise an "eligible guarantor institution" within the
meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended,
guarantees deposit with the Exchange Agent of the Letter of Transmittal (or
facsimile thereof), together with the Notes tendered hereby in proper form for
transfer (or confirmation of the book-entry transfer of such Notes into the
Exchange Agent's account at a Book-Entry Transfer Facility described in the
Prospectus under the caption "The Exchange Offer-Guaranteed Delivery Procedures"
and in the Letter of Transmittal) and any other required documents, all by 5:00
p.m., New York City time, on the fifth Nasdaq National Market trading day
following the date of execution of this Notice of Guaranteed Delivery.
Name of Firm:
Address: Authorized Signature
Name:
Telephone No.: Title:
Date:
3
<PAGE>
INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. Delivery of this Notice of Guaranteed Delivery. A properly completed
and duly executed copy of this Notice of Guaranteed Delivery and any other
documents required by this Notice of Guaranteed Delivery must be received by the
Exchange Agent at its address set forth herein prior to the Expiration Date. The
method of delivery of this Notice of Guaranteed Delivery and any other required
documents to the Exchange Agent is at the election and sole risk of the holder,
and the delivery will be deemed made only when actually received by the Exchange
Agent. If delivery is by mail, registered mail with return receipt requested,
properly insured, is recommended. As an alternative to delivery by mail, the
holders may wish to consider using an overnight or hand delivery service. In all
cases, sufficient time should be allowed to assure timely delivery. For a
description of the guaranteed delivery procedures, see Instruction 2 of the
Letter of Transmittal.
2. Signatures on this Notice of Guaranteed Delivery. If this Notice of
Guaranteed Delivery is signed by the registered holder(s) of the Notes referred
to herein, the signature must correspond with the name(s) written on the face of
the Notes without alteration, enlargement, or any change whatsoever. If this
Notice of Guaranteed Delivery is signed by a participant of the Book-Entry
Transfer Facility whose name appears on a security position listing as the owner
of Notes, the signature must correspond with the name shown on the security
position listing as the owner of the Notes.
If this Notice of Guaranteed Delivery is signed by a person other than
the registered holder(s) of any Notes listed or a participant of the Book-Entry
Transfer Facility, this Notice of Guaranteed Delivery must be accompanied by
appropriate bond powers, signed as the name of the registered holder(s) appears
on the Notes or signed as the name of the participant shown on the Book-Entry
Transfer Facility's security position listing.
If this Notice of Guaranteed Delivery is signed by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation, or other
person acting in a fiduciary or representative capacity, such person should so
indicate when signing and submit with the Letter of Transmittal evidence
satisfactory to the Company of such person's authority to so act.
3. Requests for Assistance or Additional Copies. Questions and requests
for assistance and requests for additional copies of the Prospectus may be
directed to the Exchange Agent at the address specified in the Prospectus.
Holders may also contact their broker, dealer, commercial bank, trust company,
or other nominee for assistance concerning the Exchange Offer.
4
