SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 9, 1999
HVIDE MARINE INCORPORATED
(Exact name of registrant as specified in its charter)
Applied
Delaware 0-28732 for
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
2200 Eller Drive, P.O. Box 13038, Fort Lauderdale, Florida 33316
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 954-524-4200
<PAGE>
Item 3. Bankruptcy or Receivership.
On December 9, 1999, the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court") confirmed the First Amended Joint
Plan of Reorganization (the "Plan") proposed by Hvide Marine Incorporated (the
"Company") and its subsidiary and affiliate debtors in their proceedings under
Chapter 11 of the United States Bankruptcy Code (the "Bankruptcy Code") (Case
No. 99-3024(PJW)). For additional information, see the Company's Current Reports
on Form 8-K dated September 21 and October 12, 1999, and its Quarterly Report on
Form 10-Q for the quarter ended September 30, 1999 (the "Third Quarter 10-Q").
The Plan provides that holders of the Company's 8-3/8% Senior Notes due
2008 will exchange their Senior Notes for 9,800,000 shares of common stock of
the reorganized Company ("Reorganized HMI"), representing 98% of its common
equity; holders of the Trust Convertible Preferred Securities issued by a
subsidiary of the Company will receive 200,000 shares of common stock of
Reorganized HMI, representing 2% of its common equity, as well as warrants to
purchase an additional 125,000 shares; and holders of the Company's Common Stock
will receive warrants to purchase 125,000 shares of common stock of Reorganized
HMI. The warrants will be exercisable at $38.49 per share and will have a term
of four years. In addition, warrants to purchase 6.75% of the common stock of
Reorganized HMI are to be issued in connection with the new senior secured
second lien notes described below; such warrants are expected to have a nominal
purchase price and a term of seven and one-half years. The Plan also provides
that general and trade creditors will be paid in full.
In connection with the Plan, the Company has obtained exit financing
facilities totaling $320 million from a group of financial institutions with
Deutsche Bank Securities, Inc. acting as lead arranger and book manager, Bankers
Trust Company acting as the administrative agent and MeesPierson Capital Corp.
acting as the syndication agent and co-arranger. The closing of such financing
occurred on December 15, 1999. The facilities consist of $200 million in term
loans, a $25 million revolving credit facility, and $95 million of the Company's
12-1/2% Senior Secured Notes due 2007. The proceeds from these facilities will
used to refinance borrowings under the Company's debtor-in-possession credit
facility and to pay administrative and other fees and expenses, and to provide
for future working capital.
Consummation of the Plan is subject to various conditions that are
expected to occur by year-end 1999. However, there can be no assurance that the
Plan will be consummated, by that time or at all.
Information regarding the number of shares of the Company outstanding
appears in the Plan (filed as an exhibit to the Third Quarter 10-Q), which is
incorporated by reference herein. No shares of the Company or of Reorganized HMI
have been or are to be reserved for future issuance in respect of claims and
interests filed and allowed under the Plan.
Information as to the assets and liabilities of the Company appears in
the Plan and in the Third Quarter 10-Q.
The above discussion is qualified in its entirety by reference to the
Plan (including the Supplement
<PAGE>
thereto appended to the Order of the Bankruptcy Court filed as an exhibit to
this Report and incorporated by reference herein).
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
The following is being filed as an exhibit to this Report:
4.1 Indenture for the 12 1/2% Senior Secured Notes due 2007, dated
December 15, 1999 among Hvide Marine Incorporated as the
Issuer, the Subsidiary Guarantors named therein, State Street
Bank and Trust Company as the Trustee and Bankers Trust
Company as the Collateral Agent.
4.2 Warrant Agreement, dated December 15, 1999, between Hvide
Marine Incorporated and State Street Bank and Trust Company as
Warrant Agent.
10.1 Credit Agreement, dated December 15, 1999, among Hvide Marine
Incorporated, Bankers Trust Company as Administrative Agent,
Deutsche Bank Securities Inc. as Lead Arranger and Book
Manager, Meespierson Capital Corp. as Syndication Agent and
Co-Arranger and the various persons from time to time parties
to the agreement as Lenders.
10.2 Common Stock Registration Rights Agreement, dated December 15,
1999, among Hvide Marine Incorporated, Bankers Trust
Corporation and Great American Life Insurance Company, Great
American Insurance Company, New Energy Corp., American Empire
Surplus Lines Insurance Company, Worldwide Insurance Company
and American National Fire Insurance Company as Purchasers.
10.3 Registration Rights Agreement for the 12 1/2% Senior Secured
Notes due 2007, dated December 15, 1999, among Hvide Marine
Incorporated, Bankers Trust Corporation and Great American
Life Insurance Company, Great American Insurance Company, New
Energy Corp., American Empire Surplus Lines Insurance Company,
Worldwide Insurance Company and American National Fire
Insurance Company as Purchasers.
99.1 Order, dated December 9, 1999, of the United States Bankruptcy
Court for the District of Delaware, confirming the First
Amended Joint Plan of Reorganization in In re: Hvide Marine
Incorporated, et al., Case No. 99-3024 (PJW), including the
Supplement to such Plan.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed by the undersigned
thereunto duly authorized.
HVIDE MARINE INCORPORATED
(Registrant)
By: /s/ John H. Blankley
John H. Blankley
Executive Vice President and
Chief Financial Officer
Dated: December 27, 1999
================================================================================
HVIDE MARINE INCORPORATED
as Issuer
and
THE SUBSIDIARY GUARANTORS NAMED HEREIN
as Guarantors
--------------------------
STATE STREET BANK AND TRUST COMPANY
as Trustee
and
BANKERS TRUST COMPANY
as Collateral Agent
--------------------------
INDENTURE
Dated as of December 15, 1999
--------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
SECTION 1.1. Definitions.............................................................................1
SECTION 1.2. Incorporation by Reference of Trust Indenture Act......................................22
SECTION 1.3. Rules of Construction..................................................................23
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating........................................................................23
SECTION 2.2. Execution and Authentication...........................................................24
SECTION 2.3. Registrar and Paying Agent.............................................................25
SECTION 2.4. Paying Agent to Hold Money in Trust....................................................25
SECTION 2.5. Securityholder Lists...................................................................26
SECTION 2.6. Transfer and Exchange..................................................................26
SECTION 2.7. Replacement Securities.................................................................27
SECTION 2.8. Outstanding Securities.................................................................27
SECTION 2.9. Treasury Securities....................................................................27
SECTION 2.10. Temporary Securities...................................................................28
SECTION 2.11. Cancellation...........................................................................28
SECTION 2.12. Defaulted Interest.....................................................................28
SECTION 2.13. CUSIP Number...........................................................................28
SECTION 2.14. Deposit of Moneys......................................................................29
SECTION 2.15. Book-Entry Provisions for Global Securities............................................29
SECTION 2.16. Special Transfer Provisions............................................................30
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee.....................................................................34
SECTION 3.2. Selection of Securities to Be Redeemed.................................................34
SECTION 3.3. Notice of Redemption...................................................................34
SECTION 3.4. Effect of Notice of Redemption.........................................................35
SECTION 3.5. Deposit of Redemption Price............................................................36
SECTION 3.6. Securities Redeemed in Part............................................................36
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities..................................................................36
SECTION 4.2. Maintenance of Office or Agency........................................................36
SECTION 4.3. Corporate Existence....................................................................37
SECTION 4.4. Payment of Taxes and Other Claims......................................................37
SECTION 4.5. Maintenance of Properties; Insurance; Books and Records; Compliance with Law...........38
SECTION 4.6. Compliance Certificates................................................................38
SECTION 4.7. Provision of Financial Information.....................................................39
SECTION 4.8. Further Assurance to the Trustee.......................................................39
SECTION 4.9. Limitation on Additional Indebtedness..................................................40
SECTION 4.10. Limitation on Sale-Leaseback Transactions..............................................40
SECTION 4.11. Limitation on Liens....................................................................40
SECTION 4.12. Limitation on Restricted Payments......................................................40
SECTION 4.13. Disposition of Proceeds of Asset Sales.................................................41
SECTION 4.14. Limitation on Transactions with Affiliates.............................................44
SECTION 4.15. Change of Control......................................................................45
SECTION 4.16. Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries..........46
SECTION 4.17. Limitation on Designations of Unrestricted Subsidiaries................................47
SECTION 4.18. Impairment of Security Interest........................................................48
SECTION 4.19. Waiver of Stay, Extension or Usury Laws................................................48
SECTION 4.20. Limitation on Preferred Stock of Restricted Subsidiaries...............................48
SECTION 4.21. Additional Interest, Rating of Securities..............................................48
SECTION 4.22. Excess Cash Flow.......................................................................49
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. When Company May Merge, Etc............................................................49
SECTION 5.2. Successor Entity Substituted...........................................................51
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1. Events of Default......................................................................52
SECTION 6.2. Acceleration...........................................................................54
SECTION 6.3. Other Remedies.........................................................................54
SECTION 6.4. Waiver of Past Default.................................................................55
SECTION 6.5. Control by Majority....................................................................55
SECTION 6.6. Limitation on Suits....................................................................55
SECTION 6.7. Rights of Holders To Receive Payment...................................................56
SECTION 6.8. Collection Suit by Trustee or Collateral Agent.........................................56
SECTION 6.9. Trustee or Collateral Agent May File Proofs of Claim...................................56
SECTION 6.10. Priorities.............................................................................57
SECTION 6.11. Undertaking for Costs..................................................................57
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee......................................................................58
SECTION 7.2. Rights of Trustee......................................................................59
SECTION 7.3. Individual Rights of Trustee...........................................................60
SECTION 7.4. Trustee's Disclaimer...................................................................60
SECTION 7.5. Notice of Defaults.....................................................................60
SECTION 7.6. Reports by Trustee to Holders..........................................................60
SECTION 7.7. Compensation and Indemnity.............................................................61
SECTION 7.8. Replacement of Trustee.................................................................62
SECTION 7.9. Successor Trustee by Merger, Etc.......................................................63
SECTION 7.10. Eligibility; Disqualification..........................................................63
SECTION 7.11. Preferential Collection of Claims Against Company......................................63
SECTION 7.12. Co-Collateral Agent....................................................................63
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Satisfaction and Discharge.............................................................65
SECTION 8.2. Legal Defeasance and Covenant Defeasance...............................................66
SECTION 8.3. Application of Trust Money.............................................................68
SECTION 8.4. Repayment to Company or the Guarantors.................................................69
SECTION 8.5. Reinstatement..........................................................................69
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Without Consent of Holders.............................................................69
SECTION 9.2. With Consent of Holders................................................................70
SECTION 9.3. Compliance with Trust Indenture Act....................................................72
SECTION 9.4. Revocation and Effect of Consents......................................................72
SECTION 9.5. Notation on or Exchange of Securities..................................................72
SECTION 9.6. Trustee and Collateral Agent to Sign Amendments, Etc...................................73
ARTICLE X
GUARANTEE
SECTION 10.1. Unconditional Guarantee................................................................73
SECTION 10.2. Severability...........................................................................74
SECTION 10.3. Release of a Guarantor.................................................................74
SECTION 10.4. Limitation of Guarantor's Liability....................................................74
SECTION 10.5. Guarantors May Consolidate, etc., on Certain Terms.....................................75
SECTION 10.6. Contribution...........................................................................75
SECTION 10.7. Waiver of Subrogation..................................................................76
SECTION 10.8. Execution of Guarantee.................................................................76
SECTION 10.9. Waiver of Stay, Extension or Usury Laws................................................76
ARTICLE XI
SECURITY DOCUMENTS
SECTION 11.1. Collateral and Security Documents......................................................77
SECTION 11.02. Renewal and Refunding..................................................................77
SECTION 11.03. Release upon Termination of the Company's Obligations..................................77
SECTION 11.04. Escrow Collateral......................................................................78
ARTICLE XII
[INTENTIONALLY OMITTED]
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls...........................................................78
SECTION 13.2. Notices................................................................................78
SECTION 13.3. Communications by Holders with Other Holders...........................................79
SECTION 13.4. Certificate and Opinion of Counsel as to Conditions Precedent..........................79
SECTION 13.5. Statements Required in Certificate and Opinion of Counsel..............................80
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar, Collateral Agent............................80
SECTION 13.7. Legal Holidays.........................................................................80
SECTION 13.8. Governing Law..........................................................................80
SECTION 13.9. No Recourse Against Others.............................................................80
SECTION 13.10. Successors.............................................................................81
SECTION 13.11. Duplicate Originals....................................................................81
SECTION 13.12. Severability...........................................................................81
SECTION 13.13. Table of Contents, Headings, Etc.......................................................81
SIGNATURES..................................................................................................S-1
</TABLE>
<PAGE>
EXHIBIT A-1 - Form of Series A Security
EXHIBIT A-2 - Form of Series B Security
EXHIBIT B - Form of Legend for Book-Entry Securities
EXHIBIT C - Form of Certificate to Be Delivered in Connection
with Transfers to Non-QIB Accredited
Investors
EXHIBIT D - Form of Certificate to Be Delivered in Connection
with Transfers Pursuant to Regulation S
EXHIBIT E - Form of Guarantee
<PAGE>
INDENTURE dated as of December 15, 1999, among HVIDE MARINE
INCORPORATED, a Delaware corporation (the "Company"), as Issuer, the Subsidiary
Guarantors named on the signature pages hereto (the "Guarantors"), STATE STREET
BANK AND TRUST COMPANY, a Massachusetts chartered trust company, as Trustee (the
"Trustee"), and BANKERS TRUST COMPANY, in its capacity as Collateral Agent.
The Company and the Guarantors have duly authorized the
execution and delivery of this Indenture to provide for the issuance of the (i)
12 1/2% Senior Secured Notes due 2007, Series A, and the related Guarantees of
the Guarantors (the "Initial Securities," such term to include any Securities
issued in lieu of cash interest on the Initial Securities prior to the issuance
of the Exchange Securities as and to the extent permitted by Section 4.21
hereof) and (ii) 12 1/2% Senior Secured Notes due 2007, Series B, to be issued
in exchange for the 12 1/2% Senior Secured Notes due 2007, Series A, and the
related Guarantees of the Guarantors (the "Exchange Securities," such term to
include any Securities issued in lieu of cash interest on the Initial Securities
or the Exchange Securities if issued after the date of initial issuance of the
Exchange Securities as and to the extent permitted by Section 4.21 hereof;
collectively the "Securities," such term to include the Initial Securities and
the Unrestricted Securities, if any, and any Securities issued in lieu of cash
interest on the Initial Securities, Exchange Securities or Unrestricted
Securities as and to the extent permitted by Section 4.21 hereof, if any,
treated as a single class of securities under this Indenture).
The parties hereto agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquired Indebtedness" means (i) Indebtedness of any Person
existing at the time such Person is or became a Restricted Subsidiary or is
assumed in an Asset Acquisition by the Company or a Restricted Subsidiary
excluding Indebtedness incurred in connection with, or in anticipation of, such
Person becoming a Restricted Subsidiary or such Asset Acquisition and (ii)
Indebtedness secured by a Lien encumbering any asset acquired by the Company or
any Restricted Subsidiary.
"Additional Interest" has the meaning provided in Section 4.21.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization (including amortization of dry-docking expenses),
deferred tax expense and non-cash interest expense) and net non-cash losses
which were included in arriving at Consolidated Net Income for such period less
the sum of the amount of all net non-cash gains included in arriving at
Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" at any time means
Consolidated Current Assets (but excluding therefrom all cash and Cash
Equivalents) less Consolidated Current Liabilities.
"Adjusted Net Assets" has the meaning provided in Section 10.6.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative of the foregoing.
"Affiliate Transaction" has the meaning provided in Section 4.14.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset Acquisition" means (a) any capital contribution (by
means of transfers of cash or other property to others or payments for property
or services for the account or use of others, or otherwise), or purchase or
acquisition of Capital Stock, by the Company or any of the Restricted
Subsidiaries in any other Person, in either case pursuant to which such Person
shall become a Restricted Subsidiary of the Company or shall be merged with or
into the Company or any of the Restricted Subsidiaries, or (b) any acquisition
by the Company or any of the Restricted Subsidiaries of the assets of any Person
which constitute substantially all of an operating unit or business of such
Person.
"Asset Sale" means (i) any direct or indirect sale,
conveyance, transfer, lease (other than operating leases entered into in the
ordinary course of business) or other disposition of property or assets
(including by way of a sale and leaseback) of the Company or any Restricted
Subsidiary (each referred to in this definition as a "disposition") or (ii) the
direct or indirect issuance or sale of Capital Stock of any Restricted
Subsidiary, in each case, other than: (a) the disposition of all or
substantially all of the assets of the Company in a manner permitted pursuant to
the provisions described in Article V; (b) any Restricted Payment that is
permitted to be made, and is made, under Section 4.12; (c) any disposition of
property or assets (including an issuance of Capital Stock) by a Restricted
Subsidiary to the Company or by the Company or a Restricted Subsidiary to a
Restricted Subsidiary; (d) the sale, conveyance or transfer of inventory, Cash
Equivalents and Foreign Cash Equivalents in the ordinary course of business; (e)
a disposition or series of related dispositions where the Company or the
Restricted Subsidiaries receive aggregate consideration of less than $100,000;
and (f) the incurrence of any Permitted Lien.
"Attributable Value" means, as to any particular lease under
which any Person is at the time liable other than a Capitalized Lease
Obligation, and at any date as of which the amount thereof is to be determined,
the total net amount of rent required to be paid by such Person under such lease
during the initial term thereof as determined in accordance with GAAP,
discounted from the last date of such initial term to the date of determination
at a rate per annum equal to the discount rate which would be applicable to a
Capitalized Lease Obligation with a like term in accordance with GAAP. The net
amount of rent required to be paid under any such lease for any such period
shall be the aggregate amount of rent payable by the lessee with respect to such
period after excluding amounts required to be paid on account of insurance,
taxes, assessments, utility, operating and labor costs and similar charges. In
the case of any lease that is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated. "Attributable Value" means,
as to a Capitalized Lease Obligation under which any Person is at the time
liable and at any date as of which the amount thereof is to be determined, the
capitalized amount thereof that would appear on the face of a balance sheet of
such Person in accordance with GAAP.
"Average Life to Stated Maturity" means, with respect to any
Indebtedness, as at any date of determination, the quotient obtained by dividing
(a) the sum of the products of (i) the number of years (or any fraction thereof)
from such date to the date or dates of each successive scheduled principal
payment (including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied (ii) the amount of each such principal payment by (b)
the sum of all such principal payments.
"Bankruptcy Law" means Title 11 of the U.S. Code or any
similar federal, state or foreign law for the relief of debtors.
"Board of Directors" means, with respect to any Person, the
Board of Directors or comparable governing body (which may be the Board of
Directors of a managing general partner of a partnership or managing member of a
limited liability company or the Board of Directors of its managing general
partner or managing member) of such Person or any committee thereof authorized
to act for it hereunder. Unless the context requires otherwise, "Board of
Directors" refers to the Board of Directors of the Company.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary or other
officer of such Person to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day except a Saturday, a Sunday or
any day on which banking institutions in New York, New York, Hartford,
Connecticut or Boston, Massachusetts are required or authorized by law or other
governmental action to be closed.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights in, or other equivalents (however
designated and whether voting or non-voting) of, such Person's capital stock
(including each class of Common Stock and Preferred Stock of such Person and,
without limitation, partnership or membership interests in a partnership or a
limited liability company or any other interest or participation that confers on
a Person the right to receive a share of the profits and loss of, or
distributions of assets of, the issuing Person) whether outstanding on the Issue
Date or issued after the Issue Date, and any and all rights, warrants or options
exchangeable for or convertible into such capital stock.
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement conveying the right
to use) any property (whether real, personal or mixed) that is required to be
classified and accounted for as a capital lease obligation under GAAP, and, for
the purposes of this Indenture, the amount of such obligation at any date shall
be the capitalized amount thereof at such date, determined in accordance with
GAAP.
"Cash Equivalents" means, at any time, (i) any evidence of
Indebtedness with a maturity of 365 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof); (ii) certificates of deposit
or acceptances with a maturity of 365 days or less of any financial institution
that is a member of the Federal Reserve System having combined capital and
surplus and undivided profits of not less than $250.0 million; (iii) commercial
paper with a maturity of 365 days or less issued by a corporation (except an
Affiliate of the Company) organized under the laws of any state of the United
States or the District of Columbia and rated at least A-2 by Standard & Poor's
Corporation ("S&P") or at least P-2 by Moody's Investors Service, Inc.
("Moody's"); (iv) repurchase agreements and reverse repurchase agreements
relating to marketable direct obligations issued or unconditionally guaranteed
by the United States Government or issued by any agency thereof and backed by
the full faith and credit of the United States, in each case maturing within one
year from the date of acquisition; provided, however, that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Agreements of Depository Institutions with Securities Dealers and Others, as
adopted by the Comptroller of the Currency; (v) investment funds investing 95%
of their assets in securities of the types described in clauses (i)-(iv) above;
and (vi) readily marketable direct obligations issued by any state of the United
States of America or any political subdivision thereof having one of the two
highest rating categories obtainable from either Moody's or S&P.
"Change of Control" means (a) the acquisition, whether
directly or indirectly, after the Issue Date by any Person (other than any
entity formed solely for the purpose of owning the Capital Stock of the Company)
or "group" as defined in Section 13(d)(3) of the Exchange Act of (i) shares, or
the right to vote shares, constituting more than 50% of the common stock or
other voting securities of the Company or (ii) the power to elect a majority of
the Company's Board of Directors, or (b) the election of a majority of the
Company's Board of Directors which does not consist of Continuing Directors.
"Change of Control Date" has the meaning provided in Section
4.15.
"Change of Control Offer" has the meaning provided in Section
4.15.
"Change of Control Payment Date" has the meaning provided in
Section 4.15.
"Collateral" means any "Collateral" referred to or defined in
the Security Documents.
"Collateral Agent" means Bankers Trust Company, as collateral
agent under the Security Documents, until a successor replaces it in accordance
with the provisions of this Indenture and the Security Documents, and thereafter
means each such successor.
"Common Stock" means, with respect to any Person, any and all
shares, interests or other participations in, and other equivalents (however
designated and whether voting or nonvoting) of, such Person's common stock,
whether outstanding on the Issue Date or issued after the Issue Date, and
includes, without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and, thereafter, means the successor.
"Company Order" means a written request or order signed in the
name of the Company by any one of the Chairman of the Board, the Vice-Chairman,
the Chief Executive Officer, the President or a Vice President of the Company,
and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer of the Company, and delivered to the Trustee.
"Confirmation Order" means the order entered by the Bankruptcy
Court in the form attached as Exhibit G to the New Credit Facility.
"Consolidated Capital Expenditures" shall mean the aggregate
of all expenditures by the Company and its Subsidiaries which should be
capitalized in accordance with GAAP, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance, dry-docking and repairs which should be capitalized in
accordance with GAAP) and the amount of Capitalized Lease Obligations incurred
by the Company and its Subsidiaries which are required to be reflected in the
consolidated balance sheet of the Company and its Subsidiaries.
"Consolidated Cash Flow Available for Fixed Charges" means,
with respect to the Company for any period, (a) the sum of, without duplication,
the amounts for such period, taken as a single accounting period, of (i)
Consolidated Net Income and, to the extent Consolidated Net Income has been
reduced thereby, (ii) Consolidated Non-cash Charges, (iii) Consolidated Interest
Expense and (iv) Consolidated Income Tax Expense less (b) any non-cash items to
the extent increasing Consolidated Net Income for such period other than accrual
of revenue in the ordinary course of business consistent with past practice, in
each case determined on a consolidated basis in accordance with GAAP.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Company and the Restricted Subsidiaries.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Company and the Restricted
Subsidiaries at such time, but excluding (i) the current portion of any
Indebtedness incurred under the New Credit Facility and the Securities and any
other long-term Indebtedness that would otherwise be included therein, (ii)
accrued but unpaid interest with respect to the Indebtedness described in clause
(i) and (iii) the current portion of Indebtedness constituting Capitalized Lease
Obligations.
"Consolidated Income Tax Expense" means, with respect to the
Company for any period, the provision for federal, state, local and foreign
income taxes of the Company and the Restricted Subsidiaries for such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to the
Company for any period, without duplication, the sum of (i) the interest expense
(whether cash or non-cash) of the Company and the Restricted Subsidiaries for
such period as determined on a consolidated basis in accordance with GAAP,
including, without limitation, (a) any amortization of debt discount, (b) the
net cost under Interest Rate Protection Obligations relating to interest
(including any amortization of discounts), (c) the interest portion of any
deferred payment obligation and (d) all commissions, discounts and other fees
and charges owed with respect to letters of credit and bankers' acceptance
financing, (ii) the interest component of Capitalized Lease Obligations or any
other obligations representative of interest expense associated with any
Sale-Leaseback Transaction paid, accrued and/or scheduled to be paid or accrued
by the Company and the Restricted Subsidiaries during such period as determined
on a consolidated basis in accordance with GAAP to the extent deducted in
calculating Consolidated Net Income and (iii) the amount of all dividends or
distributions paid on Disqualified Capital Stock (other than dividends paid or
payable in shares of Capital Stock of the Company).
"Consolidated Net Income" means, with respect to the Company,
for any period, the consolidated net income (or loss) of the Company and the
Restricted Subsidiaries for such period as determined in accordance with GAAP,
adjusted, to the extent included in calculating such net income, by excluding,
without duplication, (a) the portion of net income (but not losses) of the
Company and the Restricted Subsidiaries allocable to minority interests in
unconsolidated persons to the extent that cash dividends or distributions have
not actually been received by the Company or one of the Restricted Subsidiaries,
(b) net income (or loss) of any person combined with the Company or one of the
Restricted Subsidiaries on a "pooling of interests" basis attributable to any
period prior to the date of combination, (c) the cumulative non-cash effect of
any change in any accounting principle, (d) the net income of any Unrestricted
Subsidiary, except, for purposes of Section 4.9, to the extent that cash
dividends or distributions have been actually received by the Company or one of
the Restricted Subsidiaries, (e) the non-cash effect of compensation expense
related to the contribution of shares held by any qualified employee stock
ownership trust formed for employees of the Company and the Restricted
Subsidiaries, (f) the net income of any Restricted Subsidiary of such person to
the extent that the declaration of dividends or similar distributions by that
Restricted Subsidiary of that income is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, law, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholder(s), (g)
after-tax gains from asset sales or other dispositions of assets or abandonment
or reserves relating thereto and (h) after-tax items classified as extraordinary
or nonrecurring gains.
"Consolidated Non-cash Charges" means, the aggregate
depreciation, amortization and other non-cash expenses of the Company and the
Restricted Subsidiaries reducing Consolidated Net Income of the Company and the
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such charges constituting an extraordinary
item or loss or any such charge which required an accrual of or a reserve for
cash charges for any future period).
"Continuing Directors" shall mean the directors of the Company
on the Issue Date and each other director if such director's nomination for the
election to the Board of Directors of the Company is recommended by a majority
of the other Continuing Directors.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located at 225 Asylum Street, 23rd Floor, Goodwin Square, Hartford, CT 06103.
"covenant defeasance" has the meaning provided in Section 8.2.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect against fluctuations in currency values.
"Custodian" has the meaning provided in Section 6.1.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees
and successors.
"Designation" has the meaning provided in Section 4.17.
"Designation Amount" has the meaning provided in Section 4.17.
"Disqualified Capital Stock" means, with respect to any
Person, any Capital Stock that, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable at the option of
the holder), or upon the happening of any event (other than an event that would
constitute a Change of Control), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or is exchangeable for Indebtedness
at the option of the holder, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the final Stated Maturity of the
Notes, but only to the extent such Capital Stock so matures or is exchangeable
or redeemable.
"Domestic Restricted Subsidiary" means any Restricted
Subsidiary of the Company that is incorporated or otherwise organized in any
state of the United States or the District of Columbia.
"Escrow Account" means an account established with the Escrow
Agent by the Trustee pursuant to the terms of the Escrow Agreement.
"Escrow Agent" means State Street Bank and Trust Company, in
its capacity as escrow agent pursuant to the Escrow Agreement.
"Escrow Agreement" means the Escrow Agreement dated as of the
Issue Date, by and among the Company, the Trustee and the Escrow Agent,
governing the disbursement of funds from the Escrow Account, as the same may be
amended, modified or supplemented from time to time.
"Event of Default" has the meaning provided in Section 6.1.
"Excess Cash Flow" means, for any period, the remainder of (a)
the sum of (i) Adjusted Consolidated Net Income for such period, and (ii) the
decrease, if any, in Adjusted Consolidated Working Capital from the first day to
the last day of such period, minus (b) the sum of (i) the amount of Consolidated
Capital Expenditures made by the Company and the Restricted Subsidiaries on a
consolidated basis during such period, in each case except to the extent
financed with the proceeds of Indebtedness or pursuant to Capitalized Lease
Obligations; (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the Company and the Restricted Subsidiaries
and the permanent repayment of the principal component of Capitalized Lease
Obligations of the Company and the Restricted Subsidiaries or deposits for debt
service reserves (excluding (1) payments with proceeds of the sale of assets,
(2) payments with the proceeds of other Indebtedness or equity and (3) payments
of loans or other obligations incurred pursuant to the New Credit Facility
provided that repayments of Loans shall be deducted in determining Excess Cash
Flow if such repayments were (x) required as a result of a repayment under
Section 4.02(A)(d), 4.02(A)(e) or 4.02(A)(f) of the New Credit Facility (but not
as a reduction to the amount of a repayment pursuant to another provision of the
New Credit Facility) or (y) made as a voluntary prepayment pursuant to Section
4.01 under the New Credit Facility with internally generated funds (but in the
case of a voluntary prepayment of revolving loans or swingline loans, under the
New Credit Facility only to the extent accompanied by a permanent reduction to
the total commitment on such revolving loans) during such period and (iii) the
increase, if any, in Adjusted Consolidated Working Capital from the first day to
the last day of such period.
"Excess Cash Payment Date" means the date occurring 120 days
after the last day of each fiscal year of the Company, beginning with the fiscal
year of the Company ending December 31, 2000.
"Excess Cash Payment Period" means, with respect to any offer
to purchase required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the Exchange Offer described in the
Registration Rights Agreement.
"Exchange Securities" means the 12 1/2% Senior Secured Notes
due 2007, Series B, to be issued in exchange for the Initial Securities pursuant
to the Registration Rights Agreement.
"Fair Market Value" or "fair value" means, with respect to any
asset or property, the price that 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. Fair Market Value shall be determined by the Board of Directors of
the Company acting in good faith and shall be evidenced by a Board Resolution of
the Company delivered to the Trustee except (a) any determination of Fair Market
Value or fair value made with respect to any parcel of real property and related
fixtures constituting a part of, or proposed to be made a part of, the
Collateral shall be made by an Independent Appraiser and (b) as otherwise
indicated in this Indenture or the Security Documents.
"Foreign Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by a foreign
nation (i.e., nations other than the United States or any agency or
instrumentality thereof), provided that the full faith and credit of such nation
is pledged in support thereof, having maturities of not more than one year from
such date of acquisition, (ii) time deposits and certificates of deposit of any
foreign commercial bank having, or which is the principal banking subsidiary of
a bank holding company organized under the laws of any foreign nation or any
state, province, district, or jurisdiction thereof, having capital, surplus and
undivided profits aggregating in excess of $200,000,000, with maturities of not
more than one year from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than 90 days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper issued by
any Person incorporated or organized in any foreign nation rated at least A-1 or
the equivalent thereof by S&P or at least P-1 or the equivalent thereof of
Moody's and in each case maturing not more than one year after the date of
acquisition by such Person, (v) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (iv) above and (vi) demand deposit accounts maintained in
the ordinary course of business.
"Foreign Restricted Subsidiary" shall mean each Restricted
Subsidiary of the Company which is not a Domestic Restricted Subsidiary.
"Funding Guarantor" has the meaning provided in Section 10.6.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are applicable as of the
Issue Date.
"Global Securities" means one or more Regulation S Global
Securities, 144A Global Securities and IAI Global Securities.
"Governmental Authority" means any government or political
subdivision of the United States or any other country or any agency, authority,
board, bureau, central bank, commission, department or instrumentality thereof
or therein, including, without limitation, any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to such government or political subdivision.
"guarantee" means, as applied to any obligation, (a) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (b) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"Guarantee" means the guarantee of the Guarantors set forth in
Article X and any additional guarantee of the Securities executed by any Person.
"Guarantor" means (a) any of the Guarantors and (b) each of
the Company's Restricted Subsidiaries that in the future executes a supplemental
indenture in which such Restricted Subsidiary agrees to be bound by the terms of
this Indenture and the Security Documents as a Guarantor; provided that any
Person constituting a Guarantor as described above shall cease to constitute a
Guarantor when its respective Guarantee is released in accordance with the terms
of this Indenture and the Security Documents.
"Hedging Agreement" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency or
commodity values.
"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"IAI Global Security" means a permanent global note in
registered form representing the aggregate principal amount of Securities sold
to Institutional Accredited Investors in reliance on Rule 506 under the
Securities Act.
"incur" means, with respect to any Indebtedness, to directly
or indirectly create, incur, assume, issue, guarantee, acquire or otherwise
become liable, contingently or otherwise, for or with respect to such
Indebtedness, and the terms "incurred," "incurrence" and "incurring" having
meanings correlative to the foregoing.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all liabilities of such Person for borrowed money or for the
deferred purchase price of property or services except trade payables in the
ordinary course of business, (b) all obligations of such Person evidenced by
bonds, notes, debentures or other similar instruments, (c) all indebtedness
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (d) all Capitalized Lease
Obligations of such Person, (e) all Indebtedness referred to in the preceding
clauses of other Persons and all dividends of other Persons, the payment of
which is secured by any Lien (other than statutory Liens) upon property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness (the amount of such obligation being deemed to be the
lesser of the value of such property or asset or the amount of the obligation so
secured), (f) all guarantees of Indebtedness referred to in this definition by
such Person, (g) all Disqualified Capital Stock of such Person valued at its
maximum fixed repurchase price plus accrued dividends, (h) all Interest Rate
Protection Obligations of such Person and (i) any amendment, supplement,
modification, deferral, renewal, extension, refinancing or refunding of any
liability of the types referred to in clauses (a) through (h) above. For
purposes hereof, the "fixed repurchase price" of any Disqualified Capital Stock
that does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock as if such Disqualified
Capital Stock were purchased on any date on which Indebtedness shall be required
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock, such fair
market value shall be determined in good faith by the Board of Directors of the
issuers of such Disqualified Capital Stock. For purposes of Section 4.9, in
determining the principal amount of any Indebtedness (a) to be incurred by the
Company or a Restricted Subsidiary or which is outstanding at any date, (x) the
principal amount of any Indebtedness which provides that an amount less than the
principal amount thereof shall be due upon any declaration of acceleration
thereof shall be the accreted value thereof at the date of determination and (y)
effect shall be given to the impact of any Currency Agreements with respect to
such Indebtedness and (b) outstanding at any time under any Currency Agreement
of the Company or any Restricted Subsidiary shall be the net payment obligation
under such Currency Agreement at such time. When any Person becomes a Restricted
Subsidiary, there shall be deemed to have been an incurrence by such Restricted
Subsidiary of all Indebtedness for which it is liable at the time it becomes a
Restricted Subsidiary. If the Company or any of the Restricted Subsidiaries,
directly or indirectly, guarantees Indebtedness of a third Person, there shall
be deemed to be an incurrence of such guaranteed Indebtedness as if the Company
or such Restricted Subsidiary had directly incurred or otherwise assumed such
guaranteed Indebtedness.
"Indenture" means this Indenture as amended or supplemented
from time to time pursuant to the terms hereof.
"Independent Appraiser" means a Person who in the ordinary
course of its business appraises property and, where real property is involved,
is a member in good standing of the American Institute of Real Estate
Appraisers, recognized and licensed to do business in the jurisdiction where
such real property is situated who (a) does not, and whose directors, officers
and employees and Affiliates do not, have a direct or indirect material
financial interest in the Company or any of its Subsidiaries and (b) in the
judgment of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Independent Financial Advisor" means a nationally recognized
investment banking, appraisal, consulting or public accounting firm (a) that
does not, and whose directors, officers and employees and Affiliates do not,
have a direct or indirect material financial interest in the Company or any of
its Subsidiaries and (b) that, in the judgment of the Board of Directors of the
Company, is otherwise independent and qualified to perform the task for which it
is to be engaged.
"Initial Securities" means the 12 1/2% Senior Secured Notes
due 2007, Series A, of the Company.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"interest," when used with respect to any Security, means the
amount of all interest accruing on such Security, including all interest
accruing subsequent to the occurrence of any events specified in Sections 6.1(j)
and (k) or which would have accrued but for any such event.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest specified in
such Security.
"Interest Rate," when used with respect to any Security, means
the rate per annum specified in such Security as the rate of interest accruing
on the principal amount of such Security.
"Investment" means, with respect to any Person, (i) any direct
or indirect loan, advance (other than advances to customers, suppliers and
employees for moving, entertainment, travel expenses and commissions, drawing
accounts and similar expenditures in the ordinary course of business), extension
of credit (other than trade credit) or capital contribution to any Person (by
means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or (ii) any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued by, any other Person.
"Investments" shall not include accounts receivable and extensions of credit by
any Person in the ordinary course of business. If the Company or any Restricted
Subsidiary sells or otherwise disposes of any Common Stock of any direct or
indirect Restricted Subsidiary such that, after giving effect to any such sale
or disposition, the Company no longer owns, directly or indirectly, greater than
50% of the outstanding Common Stock of such Restricted Subsidiary, the Company
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the Fair Market Value of the Common Stock of such
Restricted Subsidiary not sold or disposed of. In addition to the foregoing, any
Currency Agreement shall constitute an Investment hereunder. The amount of any
Investment shall be the original cost of such Investment plus the cost of all
additional Investments by the Company or any Restricted Subsidiaries, without
any adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment, reduced by the payment of cash
distributions which constitute a return of capital in connection with such
Investment; provided that the aggregate of all such reductions shall not exceed
the amount of such initial Investment plus the cost of all additional
Investments.
"Issue Date" means December 15, 1999, the date of original
issuance of the Securities.
"legal defeasance" has the meaning provided in Section 8.2.
"Legal Holiday" means any day other than a Business Day.
"Leverage Ratio" means the ratio of (i) the aggregate
outstanding amount of Indebtedness of the Company and the Restricted
Subsidiaries as of the date of calculation on a consolidated basis in accordance
with GAAP to (ii) Consolidated Cash Flow Available for Fixed Charges of the
Company for the four full fiscal quarters for which financial statements are
available (the "Four-Quarter Period") ending on or prior to the date of
determination. The Leverage Ratio shall be calculated after giving effect on a
pro forma basis for the period of such calculation to, without duplication, (a)
the incurrence and prepayment of any Indebtedness by the Company or any of the
Restricted Subsidiaries (and the application of the net proceeds thereof) during
the period commencing on the first day of the Four Quarter Period to and
including the Calculation Date (the "Reference Period"), including, without
limitation, the incurrence of the Indebtedness giving rise to the need to make
such calculation (and the application of the net proceeds thereof), as if such
incurrence (and application) occurred on the first date of the Reference Period
and (b) any asset sales or other dispositions or Asset Acquisition (including,
without limitation, any Asset Acquisition giving rise to the need to make such
calculation as a result of the Company or one of the Restricted Subsidiaries
(including any Person who becomes a Restricted Subsidiary as a result of the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness) occurring during the Reference Period, as if such asset sale or
Asset Acquisition occurred on the first day of the Reference Period. For
purposes of calculating the amount of Indebtedness for the Leverage Ratio, (a)
interest on outstanding Indebtedness determined on a fluctuating basis as of the
Calculation Date and which will continue to be so determined thereafter shall be
deemed to have accrued at a fixed rate per annum equal to the rate of interest
on such Indebtedness in effect on the Calculation Date, (b) if interest on any
Indebtedness actually incurred on the Calculation Date may optionally be
determined at an interest rate based upon a factor of a prime or similar rate, a
eurocurrency interbank offered rate, or other rates, then the interest rate in
effect on the Calculation Date will be deemed to have been in effect during the
Reference Period and (c) notwithstanding clauses (a) and (b) of this sentence,
interest on Indebtedness determined on a fluctuating basis, to the extent such
interest is covered by agreements relating to Interest Rate Protection
Obligations for the twelve month period following the Calculation Date, shall be
deemed to have accrued at the rate per annum resulting after giving effect to
the operation of such agreements to the extent then applicable. If the Company
or any of the Restricted Subsidiaries directly or indirectly guarantees
Indebtedness of a third person, this definition shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or such Restricted
Subsidiary had directly incurred or otherwise assumed such guaranteed
Indebtedness. Notwithstanding the foregoing, for the purposes of making the
computation referred to above, interest on any Indebtedness under a revolving
credit facility computed on a pro forma basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period. In
addition, for purposes of this definition, whenever pro forma effect is to be
given to an Asset Acquisition, pro forma calculations (including, without
limitation, with respect to cost savings and synergies) shall be determined in
accordance with Regulation S-X under the Securities Act and the interpretations
thereof by the SEC; provided that such computation shall be adjusted from time
to time following the Asset Acquisition to eliminate cost savings and synergies
that have either been realized (and therefore are reflected in actual results)
or cannot reasonably be expected to be realized (whether based upon information
and results obtained following the applicable Asset Acquisition) by the Company
and the Restricted Subsidiaries.
"Lien" means any mortgage, charge, lease, lien (statutory or
other), pledge, security interest, encumbrance, claim, hypothecation, assignment
for security, deposit arrangement or preference or other security agreement of
any kind or nature whatsoever. For purposes of the Indenture, a person shall be
deemed to own subject to a Lien any property which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement. In no event shall
an operating lease be deemed to constitute a Lien.
"Lightship Tanker Entities" has the meaning assigned to such
term in the New Credit Facility.
"Maturity Date," when used with respect to the Securities,
means the date specified in such Security as the fixed date on which the
principal of such Security is due and payable.
"Moody's" has the meaning assigned to it in the definition of
"Cash Equivalents".
"Net Asset Sale Proceeds" shall mean, with respect to any
Asset Sale, the gross cash proceeds in cash or Cash Equivalents (including any
cash received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received by the Company
or any of the Restricted Subsidiaries from such Asset Sale, net of transaction
costs (including, without limitation, any underwriting, brokerage or other
customary selling commissions, taxes payable (or reasonably estimated to be
payable) within one year of the disposition and reasonable legal, advisory and
other fees and expenses, including title and recording expenses and reasonable
expenses incurred for preparing such assets for sale, associated therewith) and
the amount of such gross cash proceeds required to be used to repay any
Indebtedness (other than Indebtedness incurred pursuant to the New Credit
Facility, this Indenture or the Securities) which is senior to the Indebtedness
incurred pursuant to the New Credit Facility, this Indenture or the Securities
and secured by the property or assets that are the subject of such security.
"Net Proceeds Offer" has the meaning set forth in Section
4.13.
"Net Proceeds Offer Amount" has the meaning set forth in
Section 4.13.
"Net Proceeds Offer Payment Date" has the meaning set forth in
Section 4.13.
"Net Proceeds Offer Trigger Date" has the meaning set forth in
Section 4.13.
"New Credit Facility" means the Credit Agreement, dated as of
the Issue Date, among Hvide Marine Incorporated and Bankers Trust Company, as
Administrative Agent, Deutsche Bank Securities, Inc., as Lead Arranger and Book
Manager, Meespierson Capital Corp., as Syndication Agent and Co Arranger, the
lending institutions parties thereto, and their respective successors and
assigns, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, each as the same
may at any time be amended, amended and restated, supplemented or otherwise
modified including by waiver, including any refinancing, refunding, replacement
or extension thereof and whether by the same or any other lender or group of
lenders.
"Non-U.S. Person" has the meaning assigned to such term in
Regulation S.
"Officer" means, with respect to the Company or a Guarantor,
the President, the Chief Executive Officer, any Executive or Senior Vice
President or Vice President, any General Manager, the General Counsel, the Chief
Financial Officer, the Secretary, the Associate General Counsel, the Treasurer,
or the Controller of the Company or a Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant Treasurer or Assistant Secretary of
each of the Company and the Guarantors, as the case may be; provided, however,
that any Officers' Certificate delivered pursuant to Section 4.6 of this
Indenture shall be signed by either the Chief Executive Officer, Chief Financial
Officer or principal accounting officer of the Company.
"144A Global Security" means a permanent global note in
registered form representing the aggregate principal amount of Securities sold
in reliance on Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Trustee, which may include counsel
to the Company and the Guarantors.
"Paying Agent" has the meaning provided in Section 2.3.
"Permanent Regulation S Global Security" means a permanent
global security in registered form representing the aggregate principal amount
of Securities sold in reliance on Regulation S under the Securities Act.
"Permitted Indebtedness" means, without duplication, each of
the following: (i) Indebtedness under the Securities; (ii) Indebtedness incurred
pursuant to the New Credit Facility in an aggregate principal amount at any time
outstanding not to exceed $225 million less: (a) the amount of all mandatory and
optional principal payments actually made by the Company in respect of the term
loans thereunder (excluding any such payments to the extent refinanced at the
time of payment under a replaced New Credit Facility); and (b) reduced by any
required permanent repayments in respect of revolving portions (which are
accompanied by a corresponding permanent commitment reduction) thereunder; (iii)
other Indebtedness of the Company and the Restricted Subsidiaries outstanding on
the Issue Date reduced by the amount of any scheduled amortization payments or
mandatory prepayments when actually paid or permanent reductions thereon; (iv)
Hedging Agreements of the Company or any Restricted Subsidiary; provided,
however, that such Hedging Agreements are entered into to protect the Company
and the Restricted Subsidiaries from fluctuations in interest rates on
Indebtedness incurred in accordance with this Indenture to the extent the
notional principal amount of such Hedging Agreement does not exceed the
principal amount of the Indebtedness to which such Hedging Agreement relates;
(v) Indebtedness of a Restricted Subsidiary of the Company to the Company or to
a Restricted Subsidiary of the Company for so long as such Indebtedness is held
by the Company or a Restricted Subsidiary of the Company, in each case subject
to no Lien held by a Person other than the Company or a Restricted Subsidiary of
the Company except under the Security Documents; provided that if as of any date
any Person other than the Company or a Restricted Subsidiary of the Company owns
or holds any such Indebtedness or holds a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness by the issuer of such Indebtedness; (vi) Indebtedness of
the Company to a Restricted Subsidiary of the Company for so long as such
Indebtedness is held by a Restricted Subsidiary of the Company, in each case
subject to no Lien; provided that (a) any Indebtedness of the Company to any
Restricted Subsidiary of the Company that is not a Guarantor is unsecured and
subordinated, pursuant to a written agreement, to the Company's obligations
under this Indenture and the Securities and (b) if as of any date any Person
other than a Restricted Subsidiary of the Company owns or holds any such
Indebtedness or any Person holds a Lien other than under the Security Documents
in respect of such Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness by the Company; (vii)
Indebtedness arising from the honoring by a bank or other financial institution
of a check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary course of
business; provided, however, that such Indebtedness is extinguished within two
business days of incurrence; (viii) Indebtedness of the Company or any of its
Restricted Subsidiaries represented by letters of credit for the account of the
Company or such Restricted Subsidiary, as the case may be, in order to provide
security for workers' compensation claims, payment obligations in connection
with self-insurance or similar requirements and performance under surety bonds
in the ordinary course of business; (ix) Indebtedness represented by Capitalized
Lease Obligations and Purchase Money Indebtedness of the Company and its
Restricted Subsidiaries incurred in the ordinary course of business after the
Issue Date not to exceed (x) $5.0 million in the aggregate at any one time
outstanding during the fiscal year ending December 31, 2000 and (y) $10 million
in the aggregate at any time outstanding thereafter; (x) Refinancing
Indebtedness; (xi) Indebtedness incurred in connection with Investments made
pursuant to clause (i) of the definition of "Permitted Investments" hereof,
provided that such Indebtedness is either (x) intercompany and evidenced by
promissory notes that are pledged pursuant to the Pledge Agreement or (y)
evidenced by an unguaranteed promissory note issued by the Company and is
satisfactory to the administrative and the syndication agents under the New
Credit Facility and may be secured by the capital stock or other ownership
interest in such Investment; and (xii) additional Indebtedness of the Company or
any of the Restricted Subsidiaries in an aggregate principal amount not to
exceed $10 million at any one time outstanding, which may, but need not, be
incurred under the New Credit Facility.
For purposes of determining compliance with Section 4.9, in
the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (i) through (xii)
above, the Company shall, in its sole discretion, classify (or later reclassify)
such item of Indebtedness to any of such clauses for which the criteria is met
in any manner that complies with Section 4.9. Accrual of interest, accretion or
amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Capital Stock in the form of additional
shares of the same class of Disqualified Capital Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for
purposes of Section 4.9.
"Permitted Investments" means any of the following: (a) (i)
Investments in any Wholly-owned Restricted Subsidiary (including any Person that
pursuant to such Investment becomes a Wholly-owned Restricted Subsidiary) and
(ii) Investments in any Person that is merged or consolidated with or into, or
transfers or conveys all or substantially all of its assets to, the Company or
any Restricted Subsidiary at the time such Investment is made; (b) Investments
in Cash Equivalents (and in the case of Foreign Restricted Subsidiaries, Foreign
Cash Equivalents); (c) Investments in the Securities; (d) Investments in Hedging
Arrangements permitted by clause (iv) of the definition of Permitted
Indebtedness; (e) loans or advances to officers, directors or employees of the
Company and the Restricted Subsidiaries in the ordinary course of business for
bona fide business purposes of the Company and the Restricted Subsidiaries
(including travel and moving expenses) not in excess of $1,000,000 in the
aggregate at any one time outstanding; (f) Investments in evidences of
Indebtedness, securities or other property received from another Person by the
Company or any of the Restricted Subsidiaries in connection with any bankruptcy
proceeding or by reason of a composition or readjustment of debt or a
reorganization of such Person or as a result of foreclosure, perfection or
enforcement of any Lien in exchange for evidences of Indebtedness, securities or
other property of such Person held by the Company or any of the Restricted
Subsidiaries, or for other liabilities or obligations of such other Person to
the Company or any of the Restricted Subsidiaries that were created in
accordance with the terms of this Indenture; (g) any Investment existing on the
Issue Date; (h) accounts receivable owing to either the Company or any
Restricted Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary terms; (i) Investments
after the Issue Date by the Company and its Restricted Subsidiaries in the
Lightship Tanker Entities for aggregate consideration not to exceed $21 million;
and (j) in addition to Investments, loans and advances permitted above, the
Company and its Restricted Subsidiaries may make additional Investments, loans
and advances to or in any Person so long as the aggregate amount of all such
Investments, loans and advances does not exceed $1.0 million in any fiscal year
and $5.0 million at any one time outstanding.
"Permitted Liens" means and expressly incorporates by
reference the provisions relating to the definition of "Permitted Liens" as
defined in the New Credit Facility.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
charitable foundation, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"Physical Securities" has the meaning provided in Section 2.1.
"Pledge Agreement" has the meaning ascribed to such term in
the New Credit Facility as in effect on the Closing Date.
"Pledgor" means each of the Company and each Restricted
Subsidiary that becomes a "Pledgor" under any Security Document.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated)
of such Person's preferred or preference stock, whether now outstanding or
issued after the date of this Indenture, and including, without limitation, all
classes and series of preferred or preference stock of such Person.
"principal" of a debt security means the principal amount of
the security plus, when appropriate, the premium, if any, on the security.
"Private Placement Legend" shall mean a legend substantially
in the form of the first two paragraphs of the legend initially set forth in the
Securities in the form set forth on Exhibit A-1.
"Property" means any right, title or interest in or to
property or assets of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible and including ownership interests of any Person.
"Purchase Money Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries incurred in the normal course of
business for the purpose of financing all or any part of the purchase price, or
the cost of installation, construction or improvement, of property or equipment.
"Purchasers" means Bankers Trust Corporation, Great American
Life Insurance Company, Great American Insurance Company, New Energy Corp.,
American Empire Surplus Lines Insurance Company, Stonewall Insurance Company,
Worldwide Insurance Company and American National Fire Insurance Company.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning assigned to such term in Rule 144A under the Securities Act.
"Redemption Date" means, with respect to any Security, the
Maturity Date of such Security or the date on which such Security is to be
redeemed pursuant to the terms of the Securities.
"Refinancing Indebtedness" means (a) Indebtedness of the
Company or any Restricted Subsidiary of the Company to the extent the proceeds
thereof are used to refinance (whether by amendment, renewal, extension or
refunding) all or any part of any Indebtedness of the Company or any of the
Restricted Subsidiaries and (b) Indebtedness of any Restricted Subsidiary to the
extent the proceeds thereof are used to refinance (whether by amendment,
renewal, extension or refunding) all or any part of any Indebtedness of a
Restricted Subsidiary, in each such event, incurred under Section 4.9 or the
definition of "Permitted Indebtedness" (other than clauses (ii), (iv), (v),
(ix), (xi) and (xii) thereof); provided that (i) the principal amount of
Indebtedness incurred pursuant to this definition (or, if such Indebtedness
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof, the accreted
value of such Indebtedness) shall not exceed the sum of the principal amount of
Indebtedness so refinanced (less any discount from principal amount due upon
payment pursuant to the terms of such Indebtedness), plus the amount of any
premium required to be paid in connection with such refinancing pursuant to the
terms of such Indebtedness, plus the amount of reasonable expenses in connection
therewith, (ii) in the case of Indebtedness incurred pursuant to this definition
by the Company or any Restricted Subsidiary, such Indebtedness (x) has no
scheduled principal payment prior to the earlier of the final maturity of the
corresponding portion of the Indebtedness being refinanced and (y) has an
Average Life to Stated Maturity greater than either the Average Life to Stated
Maturity of the Indebtedness refinanced and (iii) if the Indebtedness to be
refinanced is Subordinated Indebtedness, the Indebtedness to be incurred
pursuant to this definition shall also be Subordinated Indebtedness.
"Registrar" has the meaning provided in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of December 15, 1999 by and among the Company, the Guarantors
and the Purchasers, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" means a permanent global
security in registered form representing the aggregate principal amount of
Securities sold in reliance on Regulation S under the Securities Act.
"Reorganization Plan" means the plan of reorganization in the
form of the Debtors' First Amended Joint Plan of Reorganization under Chapter 11
of the Bankruptcy Code dated November 1, 1999, and all exhibits and annexes
thereto, as modified by the Confirmation Order.
"Replacement Assets" has the meaning provided in Section 4.13
hereof.
"Required Filing Dates" has the meaning provided in Section
4.7.
"Resale Restriction Termination Date" means the date that is
two years after the later of the Issue Date and the last date on which the
Company or any of its Affiliates held any beneficial interest in a Security
being acquired or a predecessor to such Security.
"Responsible Officer" means, with respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee, including any Vice
President, Assistant Vice President, Assistant Secretary or any officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also, with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Payment" has the meaning provided in Section 4.12.
"Restricted Period" has the meaning provided in Section 2.16.
"Restricted Security" means a Security that constitutes a
"restricted security" within the meaning of Rule 144(a)(3) under the Securities
Act; provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Security
constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated by the Board of Directors of the Company, by a
Board Resolution of the Company delivered to the Trustee, as an Unrestricted
Subsidiary pursuant to and in compliance with Section 4.17. Any such designation
may be revoked by a Board Resolution of the Company delivered to the Trustee,
subject to the provisions of such Section.
"Revocation" has the meaning provided in Section 4.17.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" has the meaning assigned to it in the definition of
"Cash Equivalents".
"Sale-Leaseback Transaction" of any Person means an
arrangement with any lender or investor or to which such lender or investor is a
party providing for the leasing by such Person of any property or asset of such
Person which has been or is being sold or transferred by such Person after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any Person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"SEC" means the Securities and Exchange Commission.
"Secured Creditors" shall mean, for so long as they are
entitled to the benefits of the security interests in the Collateral pursuant to
the terms of the Security Documents, the Trustee, any Senior Bank Agent on its
behalf and on behalf of the Holders and any holders of Secured Refinancing
Indebtedness.
"Secured Refinancing Indebtedness" means Refinancing
Indebtedness secured by a Lien on Collateral permitted under Section 4.11.
"Securities" means the 12 1/2% Senior Secured Notes due 2007
and Guarantees issued, authenticated and delivered under this Indenture, as
amended or supplemented from time to time pursuant to the terms of this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Documents" means the "Security Documents" as defined
in the New Credit Facility.
"Security Interests" means the Liens on the Collateral created
by the Security Documents in favor of the Collateral Agent for its benefit and
the benefit of the Trustee and the holders of Securities or in favor of the
Trustee for its benefit and the benefit of the holders of the Securities.
"Senior Bank Agent" means Bankers Trust Company, as agent
under the New Credit Facility, and any successor thereto.
"Significant Subsidiary" means a Restricted Subsidiary which
is a "significant subsidiary" under Rule 1.02(v) of Regulation S-X under the
Securities Act.
"Stated Maturity" means, when used with respect to any
Security or any installment of interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of interest is due and payable, and when used with respect to any
other Indebtedness, means the date specified in the instrument governing such
Indebtedness as the fixed date on which the principal of such Indebtedness, or
any installment of interest thereon, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
or a Guarantor which is expressly subordinated in right of payment to the
Securities or the Guarantee of such Guarantor, as the case may be.
"Subsidiary" means, with respect to any Person, (a) a
corporation a majority of whose Voting Stock is at the time, directly or
indirectly, owned by such Person, by one or more Subsidiaries of such Person or
by such Person and one or more Subsidiaries thereof and (b) any other Person
(other than a corporation), including, without limitation, a joint venture, in
which such Person, one or more Subsidiaries thereof or such Person and one or
more Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, have at least majority of the ownership interests entitled to vote in
the election of directors, managers or trustees thereof (or other Persons
performing similar functions). For purposes of this Indenture and the
Securities, the Lightship Tanker Entities shall not be considered Subsidiaries
of the Company so long as their liabilities and obligations are without recourse
to, and are not and do not become liabilities or obligations of, the Company or
any of the Restricted Subsidiaries.
"Surviving Entity" has the meaning provided in Section 5.1.
"Temporary Regulation S Global Security" means a temporary
global security in registered form representing the aggregate principal amount
of Securities sold in reliance on Regulation S under the Securities Act. No
interest shall be paid in respect of Securities in the form of the Temporary
Regulation S Global Security until such time as such Securities are exchanged
for interests in the Permanent Regulation S Global Security.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Codess.ss. 77aaa-77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor, and shall in addition include any
Person designated or constituted as a co-trustee or separate trustee pursuant to
Section 7.12 for the limited purposes of such designation or constitution.
"Unrestricted Securities" means one or more Securities that do
not and are not required to bear the Private Placement Legend in the form set
forth in Exhibit A-1, including, without limitation, the Exchange Securities.
"Unrestricted Subsidiary" means any Subsidiary of the Company
(other than a Guarantor or a Subsidiary of the Company which owns or holds any
Collateral) designated as such pursuant to and in compliance with Section 4.17.
Any such designation may be revoked by a Board Resolution of the Company
delivered to the Trustee, subject to the provisions of such Section.
"U.S. Government Obligations" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States is
pledged.
"Voting Stock" means any class or classes of Capital Stock of
a Person pursuant to which the holders thereof have the general voting power
under ordinary circumstances to vote in the election of the Board of Directors,
managers or trustees of such Person (irrespective of whether or not, at the
time, stock of any other class or classes shall have, or might have, voting
power by reason of the happening of any contingency).
"Warrant Agreement" means the warrant agreement dated as of
December 15, 1999 by and between the Company and the State Street Bank and Trust
Company, as warrant agent, governing the terms of the Warrants.
"Warrants" mean the warrants to purchase shares of Common
Stock, par value $.01 per share, of the Company governed by the terms of the
Warrant Agreement.
"Wholly-Owned Restricted Subsidiary" means any Restricted
Subsidiary of which 100% of the outstanding Capital Stock is owned by the
Company or one or more Wholly-Owned Restricted Subsidiaries of the Company. For
purposes of this definition, any directors' qualifying shares or investments by
foreign nationals mandated by applicable law shall be disregarded in determining
the ownership of a Subsidiary.
SECTION 1.2.Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision shall be deemed incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
(a) "Commission" means the SEC;
(b) "indenture securities" means the Securities;
(c) "indenture security holder" means a Securityholder;
(d) "indenture to be qualified" means this Indenture;
(e) "indenture trustee" or "institutional trustee" means the
Trustee; and
(f) "obligor" on the Indenture securities means the Company
and any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings so assigned to them therein.
SECTION 1.3. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) words in the singular include the plural, and words in the
plural include the singular;
(d) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other Subdivision;
(e) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations
hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP as in
effect from time to time; and
(f) "including" means including, without limitation, unless
the context otherwise requires.
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating.
The Initial Securities (including any Initial Securities
issued in lieu of cash interest on the Initial Securities) and the Trustee's
certificates of authentication with respect thereto shall be substantially in
the form set forth in Exhibit A-1 annexed hereto. The Securities other than
Initial Securities (including any Securities issued in lieu of cash interest on
the Initial Securities and Securities other than Initial Securities) and the
Trustee's certificates of authentication with respect thereto shall be
substantially in the form set forth in Exhibit A-2 annexed hereto. The
Securities may have notations, legends or endorsements required by law, rule,
the rules of any stock exchange on which the Securities are listed, usage or
agreement to which the Company is subject (provided that any such notation,
legend or endorsement is in a form reasonably acceptable to the Company). Each
Security shall be dated the date of issuance and shall show the date of its
authentication. The terms and provisions contained in the Securities set forth
in Exhibit A-1 and Exhibit A-2 shall constitute, and are expressly made, a part
of this Indenture.
Securities offered and sold in reliance on Rule 144A and
Securities offered and sold in reliance on Regulation S shall be issued
initially in the form of one or more Global Securities, substantially in the
form set forth in Exhibit A-1, deposited with the Trustee, as custodian for the
Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and shall bear the legend set forth in Exhibit B. The
aggregate principal amount of the Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depository, as hereinafter provided.
Securities issued in exchange for interests in a Global
Security pursuant to Section 2.15 hereof may be issued in the form of permanent
certificated Securities in registered form in substantially the form set forth
in Exhibit A-1 (the "Physical Securities").
SECTION 2.2. Execution and Authentication.
Two Officers shall execute the Securities on behalf of the
Company by either manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security or at any time
thereafter, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
Such signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue
in an aggregate principal amount at maturity not to exceed $95,000,000, upon
receipt of an Officers' Certificate signed by two Officers of the Company. The
Officers' Certificate shall specify the amount of Securities to be
authenticated, the date on which the Securities are to be authenticated and the
aggregate principal amount of Securities outstanding on the date of
authentication and certify that all conditions precedent to the issuance of the
Securities contained herein and in the Security Documents have been complied
with. The aggregate principal amount at maturity of Securities outstanding at
any time may not exceed $95,000,000 except as provided in Sections 2.7, 2.8 and
4.21.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. Such authenticating agent shall
have the same rights as the Trustee in any dealings hereunder with the Company
or with any of the Company's Affiliates.
SECTION 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency (which shall be
located in the Borough of Manhattan in The City of New York, State of New York)
where Securities may be presented for registration of transfer or for exchange
(the "Registrar"), an office or agency (which shall be located in the Borough of
Manhattan, The City of New York, State of New York) where Securities may be
presented for payment (the "Paying Agent") and an office or agency where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Company may have one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent. The Company may act as Paying Agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.7.
The Company initially appoints the Trustee as Registrar,
Paying Agent and agent for service of notices and demands in connection with the
Securities to serve until such time as the Trustee has resigned or a successor
is appointed in accordance with this Indenture.
SECTION 2.4. Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money has
been paid to it by the Company or any other obligor on the Securities), and the
Company and the Paying Agent shall notify the Trustee of any default by the
Company (or any other obligor on the Securities) in making any such payment.
Money held in trust by the Paying Agent need not be segregated except as
required by law and in no event shall the Paying Agent be liable for any
interest on any money received by it hereunder. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Sections 6.1(a) and (b), upon written
request to the Paying Agent, require such Paying Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment and accounting to the satisfaction of the Trustee, the
Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.5. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of the Securityholders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee before each Interest Payment Date, and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of the Securityholders.
SECTION 2.6. Transfer and Exchange.
The Securities shall be issued in registered form and shall be
transferable only upon the surrender of a Security for registration of transfer.
When Securities are presented to the Registrar or a co-registrar with a request
from the Holder of such Securities to register the transfer or to exchange them
for an equal principal amount of Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested;
provided that every Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Registrar,
duly executed by the Holder thereof or his attorneys duly authorized in writing.
To permit registrations of transfers and exchanges, the Company shall issue and
execute and the Trustee shall authenticate new Securities evidencing such
transfer or exchange at the Registrar's request. No service charge shall be made
to the Securityholder for any registration of transfer or exchange. The Company
may require from the Securityholder payment of a sum sufficient to cover any
transfer taxes or other governmental charge that may be imposed in relation to a
transfer or exchange, but this provision shall not apply to any exchange
pursuant to Section 2.10, 3.6, 4.13, 4.15, 4.22 or 9.5 or pursuant to paragraph
8(b) of the Initial Securities or 7(b) of the Exchange Securities and the
Company will be responsible for the payment of such taxes in such events, unless
the Securities transferred or exchanged are issued to a different Securityholder
in which event the Company may require from the Securityholder payment of a sum
sufficient to cover any transfer taxes or other governmental charge that may be
imposed in relation to such transfer or exchange. The Trustee shall not be
required to exchange or register a transfer of any Security for a period of 15
days immediately preceding the first mailing of notice of redemption of
Securities to be redeemed or of any Security selected, called or being called
for redemption except, in the case of any Security where public notice has been
given that such Security is to be redeemed in part, the portion thereof not to
be redeemed. Prior to the due presentation of transfer of any Security, the
Company, the Trustee, or the Registrar may deem and treat the person in whose
name a Security is registered as the absolute owner of such Security for the
purpose of receiving payment of principal of and interest on such Security, and
for all other purposes whatsoever, whether or not such Security is overdue, and
none of the Company, the Trustee or Registrar shall be affected by notice to the
contrary.
All Securities issued on any transfer or exchange pursuant to
the terms of this Indenture will evidence the same debt and will be entitled to
the same benefits under this Indenture as the Securities surrendered upon such
transfer or exchange.
SECTION 2.7. Replacement Securities.
If a mutilated Security is surrendered to the Registrar or the
Trustee or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Holder of such Security furnishes to
the Company and to the Trustee evidence reasonably acceptable to them of the
ownership and the destruction, loss or theft of such Security and the
requirements of Section 8-405 of the Uniform Commercial Code are met. If
required by the Trustee or the Company, an indemnity bond shall be posted,
sufficient in the judgment of both to protect the Company, the Trustee or any
Paying Agent from any loss that any of them may suffer if such Security is
replaced. The Company may charge such Holder for the Company's expenses in
replacing such Security and the Trustee may charge the Company for the Trustee's
expenses in replacing such Security. Every replacement Security shall constitute
an additional obligation of the Company.
SECTION 2.8. Outstanding Securities.
The Securities outstanding at any time are all Securities that
have been authenticated by the Trustee except for (a) those cancelled by it, (b)
those delivered to it for cancellation, (c) to the extent set forth in Sections
8.1 and 8.2, on or after the date on which the conditions set forth in Sections
8.1 and 8.2 have been satisfied, those Securities theretofore authenticated and
delivered by the Trustee hereunder and (d) those described in this Section 2.8
as not outstanding. A Security does not cease to be outstanding because the
Company, the Guarantors or any one of their respective Affiliates holds the
Security.
If a Security is replaced pursuant to Section 2.7 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser in whose hands such Security is a legal, valid
and binding obligation of the Company. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant to
Section 2.7.
If the Paying Agent holds, in its capacity as such, on any
Maturity Date or on any optional redemption date, money sufficient to pay all
accrued interest and principal with respect to such Securities (or portions
thereof) payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Securities (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.9. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any declaration of acceleration or notice
of default or direction, waiver or consent or any amendment, modification or
other change to this Indenture, Securities owned by the Company, the Guarantors
or any of their respective Affiliates shall be disregarded as though they were
not outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent or any
amendment, modification or other change to this Indenture, only Securities that
a Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are prepared and ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities upon receipt of a written order of the Company in the form of an
Officers' Certificate. The Officers' Certificate shall specify the amount of
temporary Securities to be authenticated and the date on which the temporary
Securities are to be authenticated. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
in exchange for temporary Securities. Until such exchange, temporary Securities
shall be entitled to the same rights, benefits and privileges as definitive
Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall (subject to the record-retention requirements of the Exchange Act) dispose
of cancelled Securities unless the Company directs the Trustee to return such
Securities to the Company, and, if so disposed of, shall deliver a certificate
as to the disposal thereof to the Company. The Company may not reissue or
resell, or issue new Securities to replace, Securities that the Company or the
Guarantors have redeemed pursuant to Article III or paid at maturity, or that
have been delivered to the Trustee for cancellation, subject to Section 2.15(d).
SECTION 2.12. Defaulted Interest.
If the Company defaults on a payment of interest on the
Securities, it shall pay the defaulted interest, plus (to the extent permitted
by law) any interest payable on the defaulted interest, in accordance with the
terms hereof, to the Persons who are Securityholders on a subsequent special
record date, which date shall be at least five Business Days prior to the
payment date. The Company shall fix such special record date and payment date in
a manner satisfactory to the Trustee. At least 15 days before such special
record date, the Company shall mail to the Trustee and each Securityholder of
such series a notice that states the special record date, the payment date and
the amount of defaulted interest, and interest payable on such defaulted
interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP"
number, and if so, such CUSIP number shall be included in notices of redemption
or exchange as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness or accuracy of
the CUSIP number printed in the notice or on the Securities, and that reliance
may be placed only on the other identification numbers printed on the
Securities. The Company will promptly notify the Trustee of any change in the
CUSIP number.
SECTION 2.14. Deposit of Moneys.
On each Interest Payment Date and Maturity Date, the Company
shall have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date or
Maturity Date, as the case may be, in a timely manner which permits the Trustee
to remit payment to the Holders on such Interest Payment Date or Maturity Date,
as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit B.
Members of, or participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Security, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Securities may
be transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and this Indenture. In addition, Physical
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in Global Securities if (i) the Company notifies the
Trustee in writing that the Depository is no longer willing or able to act as a
Depository or the Depository ceases to be registered as a clearing agency under
the Exchange Act and a successor Depository is not appointed within 90 days of
such notice of cessation, (ii) the Company, at its option, notifies the Trustee
in writing that it elects to cause the issuance of the Securities in
certificated form under the Indenture or (iii) an Event of Default has occurred
and is continuing and the Registrar has received a written request from the
Depository to issue Physical Securities.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Security to beneficial owners pursuant
to paragraph (b), the Registrar shall (if one or more Physical Securities are to
be issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of like tenor and principal amount of authorized
denominations.
(d) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b), the Global Securities
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Securities, an equal aggregate principal amount at
maturity of Physical Securities of like tenor of authorized denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to
subparagraph (b), (c) or (d) of this Section 2.15 shall, except as otherwise
provided by Section 2.16 hereof, bear the Private Placement Legend.
(f) The Holder of any Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.16. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors.
The following additional provisions shall apply with respect to the registration
of any proposed transfer of a Security to any Institutional Accredited Investor
which is not a QIB:
(i) the Registrar shall register the transfer of any Security,
whether or not such Security bears the Private Placement Legend, if (x)
the requested transfer is after the Resale Restriction Termination Date
or (y) the proposed transferee has delivered to the Registrar a
certificate substantially in the form of Exhibit C hereto and any legal
opinions and certifications required thereby;
(ii) if the proposed transferor is an Agent Member and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the IAI Global Security,
upon receipt by the Registrar of (x) written instructions given in
accordance with the Depositary's and the Registrar's procedures and (y)
the appropriate certificate, if any, required by clause (y) of
paragraph (i) above, together with any required legal opinions and
certifications, the Registrar shall register the transfer and reflect
on its book and records the date an increase in the principal amount of
the IAI Global Security in an amount equal to the principal amount of
Physical Securities to be transferred, and the Trustee shall cancel the
Physical Security so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Security, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above,
together with any required legal opinions and certifications, the
Registrar shall register the transfer and reflect on its books and
records the date and (A) a decrease in the principal amount of the
Global Security from which such interests are to be transferred in an
amount equal to the principal amount of the Securities to be
transferred and (B) an increase in the principal amount of the IAI
Global Security in an amount equal to the principal amount of the
Global Security to be transferred.
(b) Transfers to Non-U.S. Persons. The following additional
provisions shall apply with respect to the registration of any proposed transfer
of an Initial Security to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private Placement
Legend, if (x) the requested transfer is after the Resale Restriction
Termination Date or (y) the proposed transferor has delivered to the
Registrar a certificate substantially in the form of Exhibit D hereto
and, if requested by the Company or Trustee, the delivery of an opinion
of counsel, certifications and/or other information satisfactory to
each of them;
(ii) if the proposed transferee is an Agent Member and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Regulation S Global
Security upon receipt by the Registrar of (x) written instructions
given in accordance with the Depository's and the Registrar's
procedures and (y) the appropriate certificate, if any, required by
clause (y) of paragraph (i) above, together with any required legal
opinions and certifications, the Registrar shall register the transfer
and reflect on its books and records the date and an increase in the
principal amount of the Regulation S Global Security in an amount equal
to the principal amount of Physical Securities to be transferred, and
the Trustee shall cancel the Physical Securities so transferred;
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Security, upon receipt by the
Registrar of (x) written instructions given in accordance with the
Depository's and the Registrar's procedures and (y) the appropriate
certificate, if any, required by clause (y) of paragraph (i) above,
together with any required legal opinions and certifications, the
Registrar shall register the transfer and reflect on its books and
records the date and (A) a decrease in the principal amount of the
Global Security from which such interests are to be transferred in an
amount equal to the principal amount of the Securities to be
transferred and (B) an increase in the principal amount of the
Regulation S Global Security in an amount equal to the principal amount
of the Global Security to be transferred; and
(iv) until the 41st day after the Issue Date (the "Restricted
Period"), an owner of a beneficial interest in the Temporary Regulation
S Global Security may not transfer such interest to a transferee that
is a U.S. person or for the account or benefit of a U.S. person within
the meaning of Rule 902(o) of the Securities Act. During the Restricted
Period, all beneficial interests in the Temporary Regulation S Global
Security shall be transferred only through Cedel or Euroclear, either
directly if the transferor and transferee are participants in such
systems, or indirectly through organizations that are participants, in
accordance with (x) the written instructions given in accordance with
the Depository's, Euroclear or Cedel's and the Registrar's procedures
and (y) if the proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit D hereto and, if
requested by the Company or Trustee, the delivery of an opinion of
counsel, certifications and/or other information satisfactory to each
of them; and
(v) upon the expiration of the Restricted Period, beneficial
ownership interests in the Temporary Regulation S Global Security may
be exchanged for interests in the Permanent Regulation S Global
Security upon certification to the Registrar that such interest are
owned either by Non-U.S. persons or U.S. persons who purchased such
interests pursuant to an exemption from, or transfer not subject to,
the registration requirements of the Securities Act. Upon the
expiration of the Restricted Period, the Company shall prepare and
execute the Permanent Regulation S Global Security in accordance with
the terms of this Indenture and deliver it to the Trustee for
authentication. The Trustee shall retain the Permanent Regulation S
Global Security as custodian for the Depository. Any transfers of
beneficial ownership interests in the Temporary Regulation S Global
Security made in reliance on Regulation S shall thenceforth be recorded
by the Trustee by making an appropriate increase in the principal
amount of the Permanent Regulation S Global Security and a
corresponding decrease in the principal amount of the Temporary
Regulation S Global Security. At such time as the principal amount of
the Temporary Regulation S Global Security has been reduced to zero,
the Trustee shall cancel the Temporary Regulation S Global Security and
deliver it to the Company.
(c) Transfers to QIBs. The following provisions shall apply
with respect to the registration of any proposed transfer of an Initial Security
to a QIB (excluding Non-U.S. Persons):
(i) the Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private Placement
Legend, if (x) the requested transfer is after the Resale Restriction
Termination Date or (y) such transfer is being made by a proposed
transferor who has represented to the Company and the Registrar, in
writing, that the sale has been made in compliance with the provisions
of Rule 144A to a transferee who has signed the certification provided
for on the form of Security stating, or has otherwise advised the
Company and the Registrar in writing, that it is purchasing the
Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account
is a QIB within the meaning of Rule 144A, and is aware that the sale to
it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as it has requested
pursuant to Rule 144A or has determined not to request such information
and that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A;
(ii) if the proposed transferee is an Agent Member and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the 144A Global
Security, upon receipt by the Registrar of written instructions given
in accordance with the Depository's and the Registrar's procedures, the
Registrar shall register the transfer and reflect on its book and
records the date and an increase in the principal amount of the 144A
Global Security in an amount equal to the principal amount of Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Security so transferred; and
(iii) if the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Security, upon receipt by the
Registrar of written instructions given in accordance with the
Depository's and the Registrar's procedures, the Registrar shall
register the transfer and reflect on its books and records the date and
(A) a decrease in the principal amount of the Global Security from
which interests are to be transferred in an amount equal to the
principal amount of the Securities to be transferred and (B) an
increase in the principal amount of the 144A Global Security in an
amount equal to the principal amount of the Global Security to be
transferred.
(d) Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Securities not bearing the Private
Placement Legend, the Registrar shall deliver Securities that do not bear the
Private Placement Legend. Upon the registration of transfer, exchange or
replacement of Securities bearing the Private Placement Legend, the Registrar
shall deliver only Securities that bear the Private Placement Legend unless (i)
the circumstances contemplated by paragraph (a)(i)(x) of this Section 2.16
exist, (ii) there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act or (iii) such
Security has been sold pursuant to an effective registration statement under the
Securities Act.
(e) Other Transfers. If a Holder proposes to transfer a
Security constituting a Restricted Security pursuant to any exemption from the
registration requirements of the Securities Act other than as provided for by
Section 2.16(a), (b) and (c) hereof, the Registrar shall only register such
transfer or exchange if such transferor delivers an Opinion of Counsel
satisfactory to the Company and the Registrar that such transfer is in
compliance with the Securities Act and the terms of this Indenture; provided,
however, that the Company may, based upon the opinion of its counsel, instruct
the Registrar by a Company Order not to register such transfer in any case where
the proposed transferee is not a QIB, Non-U.S. Person or Institutional
Accredited Investor.
(f) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 hereof or this
Section 2.16. The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any time upon the
giving of reasonable prior written notice to the Registrar.
ARTICLE III
REDEMPTION
SECTION 3.1. Notices to Trustee.
If the Company elects to redeem Securities pursuant to the
terms of the Securities including any offers to purchase pursuant to paragraph 8
of the Initial Securities and paragraph 7 of the Exchange Securities, it shall
do so by notifying the Trustee and the Paying Agent in writing of the Redemption
Date and the principal amount of Securities to be redeemed and by certifying the
appropriate price at which the Securities shall be redeemed as determined
pursuant to this Indenture and the Securities as soon as reasonably practicable
but in no event later than three Business Days prior to the last day on which
notice can be given under Section 3.3
Each notice or certification provided for in this Section 3.1
shall be accompanied by an Officers' Certificate stating that such redemption
will comply with the conditions contained herein and in the Securities.
SECTION 3.2. Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities being redeemed are listed or, if the Securities are not listed on a
national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate; provided that no Securities of a
principal amount of $1,000 or less shall be redeemed in part. The Trustee shall
make the selection from the Securities outstanding and not previously called for
redemption. The Trustee shall promptly notify the Company in writing of such
Securities selected for redemption and, in the case of Securities selected for
partial redemption, the principal amount to be redeemed. The Trustee may select
for redemption portions of the principal amount of Securities that have
denominations larger than $1,000. Securities and portions thereof the Trustee
selects shall be in amounts of $1,000 or integral multiples of $1,000. No
Securities that have denominations of $1,000 or less shall be selected by the
Trustee for partial redemption. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
SECTION 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause the mailing of a notice of redemption by
first-class mail to each Holder of Securities to be redeemed and the Trustee and
any Paying Agent.
The notice shall identify the Securities to be redeemed and
shall state:
(a) the Redemption Date;
(b) the redemption price and the amount of accrued and unpaid
interest, if any, to be paid;
(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price and accrued and
unpaid interest, if any;
(e) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date and the only remaining right of the
Holders of such Securities of such series is to receive payment of the
redemption price upon surrender to the Paying Agent of the Securities
redeemed;
(f) if any Security is to be redeemed in part only, the
portion of the principal amount (equal to $1,000 or any integral
multiple thereof) of such Security to be redeemed and that, on or after
the Redemption Date, and upon surrender of such Security a new Security
or Securities in aggregate principal amount equal to the unredeemed
portion thereof will be issued;
(g) if there is to be a partial redemption of certificated
Securities, upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed
portion thereof will be issued without charge to the Securityholder
upon cancellation of the original Securities;
(h) if less than all of the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities estimated to
be outstanding after such partial redemption; and
(i) the CUSIP number(s), if any, pursuant to Section 2.13 and,
at the option of the Company or the Trustee, the disclaimer permitted
by Section 2.13.
At the Company's written request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense.
SECTION 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest, if any, to the Redemption Date, but
interest installments whose maturity is on or prior to such Redemption Date will
be payable on the relevant Interest Payment Dates to the Holders of record at
the close of business on the relevant record dates referred to in the
Securities. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
SECTION 3.5. Deposit of Redemption Price.
On or before the Redemption Date, the Company shall deposit
with the Paying Agent in immediately available funds money sufficient to pay the
redemption price of and accrued interest on all Securities or portions thereof
to be redeemed on that date. The Paying Agent shall return to the Company any of
such money not required for such purpose. All money earned on funds held in
trust by the Paying Agent for payment pursuant to this Article III shall be
remitted to the Company.
If any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid on the Redemption Date due to
the failure of the Company to deposit sufficient funds with the Paying Agent,
interest will continue to accrue from the Redemption Date until such payment is
made on the unpaid principal and, to the extent lawful, on any interest not paid
on such unpaid principal, in each case at the date and in the manner provided in
the Securities.
SECTION 3.6. Securities Redeemed in Part.
Upon surrender to the Paying Agent of a Security that is
redeemed in part, the Company shall execute and the Trustee shall authenticate
for the Holder a new Security equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture.
An installment of principal or interest shall be considered
paid on the date due if the Trustee or the Paying Agent holds on such date
immediately available funds designated for and sufficient to pay such
installment. Interest on the Securities will be computed on the basis of a
360-day year comprised of twelve 30-day months.
The Company shall pay interest on overdue principal and (to
the extent permitted by law) on overdue installments of interest at the rate
specified therefor in the Securities.
SECTION 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Securities may be surrendered for
registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 13.2.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee as an agency of the Company in accordance with Section
2.3.
SECTION 4.3. Corporate Existence.
Subject to Article V, the Company shall do or cause to be
done, at its own cost and expense, all things necessary to and will cause each
of its Restricted Subsidiaries to, preserve and keep in full force and effect
the corporate, partnership or other existence and rights (charter and
statutory), licenses and/or franchises of the Company and each of its Restricted
Subsidiaries; provided, however, that subject to Article XI and the terms of any
Security Document, the Company shall not be required to preserve any such
rights, licenses, franchises or corporate existence with respect to each such
Restricted Subsidiary if the Board of Directors of the Company shall reasonably
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries, taken as a whole,
and the loss thereof is not adverse in any material respect to the Holders; and
provided, further, that this covenant shall not prohibit the combination of any
Restricted Subsidiary with the Company or with any other Restricted Subsidiary.
SECTION 4.4. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes, assessments
and governmental charges levied or imposed upon its or its Subsidiaries' income,
profits or property and (b) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a Lien upon its property; provided,
however, that, subject to the terms of the applicable Security Documents, the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate negotiations or
proceedings and for which disputed amounts adequate reserves (in the good faith
judgment of the Board of Directors of the Company) have been made or where the
failure to so pay is not adverse in any material respect to the Holders.
SECTION 4.5. Maintenance of Properties; Insurance; Books
and Records; Compliance with Law.
(a) Subject to, and in compliance with, the provisions of each
applicable Security Document, the Company shall, and shall cause each of its
Restricted Subsidiaries to, at all times cause all properties used or useful in
the conduct of its business to be maintained and kept in good condition, repair
and working order (reasonable wear and tear and casualty excepted) and supplied
with all necessary equipment, and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereto.
(b) Subject to the provisions of each applicable Security
Document, the Company and each of its Restricted Subsidiaries shall maintain
insurance in such amounts and covering such risks as are usually and customarily
carried with respect to similar facilities according to their respective
locations.
(c) The Company shall and shall cause each of its Restricted
Subsidiaries to keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Company and each Restricted Subsidiary of the Company, in
accordance with GAAP, except to the extent that on the Issue Date a Restricted
Subsidiary did not keep its books and records of account in accordance with
GAAP, in which case, such Restricted Subsidiary shall keep its books and record
of account in reasonable detail fairly reflecting the financial transactions and
the assets and business of such Restricted Subsidiary.
(d) The Company shall and shall cause each of its Restricted
Subsidiaries to comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, earnings, properties, assets or
condition (financial or otherwise) of the Company and its Restricted
Subsidiaries, taken as a whole.
SECTION 4.6. Compliance Certificates.
(a) The Company shall deliver to the Trustee within 120 days
after the end of each fiscal year an Officers' Certificate stating (i) that a
review of the activities of the Company during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and (ii) that, to the best knowledge of each
Officer signing such certificate, the Company during such preceding fiscal year
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred and be continuing, describing all such Defaults or
Events of Default of which such Officers may have knowledge, their status and
what action the Company is taking or proposes to take with respect thereto).
(b) So long as (and to the extent) not contrary to the then
current recommendations of the American Institute of Certified Public
Accountants, the annual financial statements delivered pursuant to Section 4.7
shall be accompanied by a written statement of the Company's independent public
accountants that in making the examination necessary for certification of such
annual financial statements nothing has come to their attention that would lead
them to believe that the Company has violated any provisions of Article IV, V or
VI insofar as they relate to accounting matters or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Event of
Default and what action the Company is taking or proposes to take with respect
thereto.
SECTION 4.7. Provision of Financial Information.
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 SEC (but only if the SEC accepts such filings) the annual reports,
quarterly reports and other documents which the Company would have been required
to file with the SEC pursuant to such Section 13(a) or 15(d) (each, an "Exchange
Act Report") or any successor provision thereto if the Company were so subject,
such documents to be filed with the SEC on or prior to the respective dates (the
"Required Filing Dates") by which the Company would have been required so to
file such documents if the Company were so subject. If, at any time prior to the
consummation of the Exchange Offer when the Company is not subject to such
Section 13(a) or 15(d), the information that would be required in an Exchange
Act Report is included in a public filing of the Company under the Securities
Act at the applicable Required Filing Date, such public filing shall fulfill the
filing requirement with the SEC with respect to the applicable Exchange Act
Report. The Company shall also in any event (a) within 15 days of each Required
Filing Date (whether or not permitted or required to be filed with the SEC) (i)
transmit (or cause to be transmitted) by mail to all Holders, as their names and
addresses appear in the Security register, without cost to such Holders, and
(ii) file with the Trustee, copies of the annual reports, quarterly reports and
other documents which the Company is required to file with the SEC pursuant to
this Section, or, if such filing is not so permitted (or, prior to the
consummation of the Exchange Offer, when the Company is not subject to Section
13(a) or 15(d) of the Exchange Act), information and data of a similar nature,
and (b) if, notwithstanding the preceding sentence, filing such documents by the
Company with the SEC is not permitted by SEC practice or applicable law or
regulations, promptly upon written request supply copies of such documents to
any Holder. In addition, for so long as any Securities remain outstanding, the
Company will furnish to the Holders and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
SECTION 4.8. Further Assurance to the Trustee.
The Company shall, upon request of the Trustee, execute and
deliver such further instruments and do such further acts as may reasonably be
necessary or proper to carry out more effectively the provisions of this
Indenture.
SECTION 4.9. Limitation on Additional Indebtedness.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, incur or otherwise become
responsible for, payment of any Indebtedness (other than Permitted
Indebtedness); provided however, that if no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the
incurrence of any such Indebtedness, the Company or any of its Restricted
Subsidiaries that is or, upon such incurrence, becomes a Guarantor may incur
Indebtedness (including, without limitation, Acquired Indebtedness) and any
Restricted Subsidiary of the Company may incur Acquired Indebtedness, in each
case if on the date of the incurrence of such Indebtedness, after giving effect
to the incurrence thereof, the Company's Leverage Ratio is less than 5.0 to 1.0
if on or before December 15, 2001 and 4.5 to 1.0 thereafter.
SECTION 4.10. Limitation on Sale-Leaseback Transactions.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any Sale-Leaseback Transaction with
respect to any property of the Company or any of its Restricted Subsidiaries.
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may
enter into Sale-Leaseback Transactions with respect to property not constituting
Collateral that is acquired or constructed after the Issue Date; provided that
(a) the Attributable Value of such Sale-Leaseback Transaction shall be deemed to
be Indebtedness of the Company or such Restricted Subsidiary, as the case may
be, (b) after giving pro forma effect to any such Sale-Leaseback Transaction and
the foregoing clause (a), the Company would be able to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.9, (c)
such Sale-Leaseback Transaction shall be in compliance with Section 4.11, (d)
the gross cash proceeds of such Sale-Leaseback Transaction are at least equal to
the Fair Market Value (as determined in good faith by the Board of Directors
and, in the case of a Sale-Leaseback Transaction having a Fair Market Value in
excess of $2 million, set forth in an Officers' Certificate delivered to the
Trustee) of the property that is the subject of such Sale-Leaseback Transaction
and (e) the transfer of assets in such Sale-Leaseback Transaction is permitted
by Section 4.13 hereof.
SECTION 4.11. Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume,
affirm, permit or suffer to exist or remain in effect any Liens other than (i)
Liens securing Indebtedness outstanding under the New Credit Facility in an
amount not to exceed $235.0 million and the Security Documents; (ii) Liens
created pursuant to the Escrow Agreement and (iii) Permitted Liens.
SECTION 4.12. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other distribution
or payment on or in respect of Capital Stock of the Company or any
payment made to the direct or indirect holders (in their capacities as
such) of Capital Stock of the Company (other than dividends or
distributions payable solely in Capital Stock of the Company (other
than Disqualified Capital Stock) or in options, warrants or other
rights to purchase Capital Stock of the Company (other than
Disqualified Capital Stock)), except that any Restricted Subsidiary of
the Company may make distributions to any Wholly-Owned Restricted
Subsidiary of the Company owning such Restricted Subsidiary and to the
Company;
(ii) purchase, redeem, defease or otherwise acquire or retire
for value any Capital Stock of the Company or any warrants, rights or
options to purchase or acquire shares of any class of such Capital
Stock, except such repurchases of Capital Stock to the extent necessary
for the Company to comply with the citizenship requirements of the
Merchant Marine Act of 1936, as amended, the Shipping Act of 1916, as
amended and the regulations promulgated thereunder;
(iii) make any principal payment on, or purchase, defease,
repurchase, redeem, prepay, decrease or otherwise acquire or retire for
value, in each case, prior to any scheduled final maturity, scheduled
repayment, scheduled sinking fund payment or other Stated Maturity, any
Subordinated Indebtedness; or
(iv) make any Investment (other than any Permitted Investment)
(such payments or Investments described in the preceding clauses (i), (ii),
(iii) and (iv) are collectively referred to as "Restricted Payments").
SECTION 4.13. Disposition of Proceeds of Asset Sales.
The Company shall not, and shall not permit any of the
Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or
the applicable Restricted 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
assets sold or otherwise disposed of (as determined in good faith by the
Company's Board of Directors or senior management of the Company), (ii) at least
85% of the consideration received by the Company or the Restricted Subsidiary,
as the case may be, from such Asset Sale shall be in the form of cash, and (iii)
upon the consummation of an Asset Sale, the Company shall apply, or cause such
Restricted Subsidiary to apply, the Net Asset Sale Proceeds relating to such
Asset Sale within 180 days following the date of such Asset Sale, (A) to prepay
any Indebtedness incurred pursuant to the New Credit Facility and, in the case
of any repayment of the revolving credit facility thereunder (other than with
respect to $15.0 million in the aggregate of Net Asset Sale Proceeds so
applied), to effect a permanent reduction in the availability under such
revolving credit facility, (B) to make an investment in properties and assets
that replace the properties and assets that were the subject of such Asset Sale
or in properties and assets that will be used in the business of the Company and
the Restricted Subsidiaries as existing on the Issue Date or in businesses
reasonably related thereto ("Replacement Assets"), and/or (C) a combination of
prepayment and investment permitted by the foregoing clauses (iii)(A) and
(iii)(B). On the 181st day after an Asset Sale or such earlier date, if any, as
the Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Asset Sale Proceeds relating to such Asset Sale
as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the preceding
sentence (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of
Net Asset Sale Proceeds that have not been applied on or before such Net
Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B) and
(iii)(C) of the preceding sentence (each a "Net Proceeds Offer Amount") shall be
applied by the Company or such Restricted Subsidiary to make an offer to
purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment
Date") not less than 30 nor more than 60 days following the applicable Net
Proceeds Offer Trigger Date, from all Holders on a pro rata basis, that amount
of Securities equal to the Net Proceeds Offer Amount at a price equal to 100% of
the principal amount of the Securities to be purchased, plus accrued and unpaid
interest thereon, if any, to the date of purchase; provided, however, that if at
any time any non-cash consideration received by the Company or any Restricted
Subsidiary of the Company, as the case may be, in connection with any Asset Sale
is converted into or sold or otherwise disposed of for cash (other than interest
received with respect to any such non-cash consideration), then such conversion
or disposition shall be deemed to constitute an Asset Sale hereunder and the Net
Asset Sale Proceeds thereof shall be applied in accordance with this Section
4.13.
In the event of the transfer of substantially all (but not
all) of the property and assets of the Company and its Restricted Subsidiaries
as an entirety to a Person in a transaction permitted under Section 5.1, which
transaction does not constitute a Change of Control, the successor corporation
shall be deemed to have sold the properties and assets of the Company and its
Restricted Subsidiaries not so transferred for purposes of this covenant, and
shall comply with the provisions of this Section 4.13 with respect to such
deemed sale as if it were an Asset Sale. In addition, the fair market value of
such properties and assets of the Company or its Restricted Subsidiaries deemed
to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section
4.13.
Notice of each Net Proceeds Offer pursuant to this Section
4.13 shall be mailed or caused to be mailed, by first class mail, by the Company
within 30 days following the applicable Net Proceeds Offer Trigger Date to all
Holders at their last registered addresses, with a copy to the Trustee. A Net
Proceeds Offer shall remain open for a period of 20 Business Days or such longer
period as may be required by law. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this
Section 4.13 and that all Securities tendered will be accepted for
payment; provided, however, that if the principal amount of Securities
tendered in the Net Proceeds Offer exceeds the aggregate amount of Net
Proceeds Offer Amount, the Company shall select the Securities to be
purchased on a pro rata basis;
(2) the purchase price (including the amount of accrued
interest, if any) and the purchase date (which shall be no earlier than
30 days nor later than 60 days from the date such notice is mailed,
other than as may be required by applicable law);
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Net Proceeds
Offer Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to the Net Proceeds Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Security completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the
Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the second Business Day
prior to the Net Proceeds Offer Payment Date, a facsimile transmission
or letter setting forth the name of the Holder, the principal amount of
the Security the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Security
purchased; and
(7) that Holders whose Securities are purchased only in part
will be issued new Securities in a principal amount at maturity equal
to the unpurchased portion of the Securities surrendered.
On or before the Net Proceeds Offer Payment Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant to
the Net Proceeds Offer, (ii) deposit with the Paying Agent U.S. Government
Obligations sufficient to pay the purchase price, plus accrued interest, if any,
of all Securities to be purchased and (iii) deliver to the Trustee Securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof being purchased by the Company. The Paying Agent shall promptly
mail to the Holders of Securities so accepted payment in an amount equal to the
purchase price, plus accrued interest, if any, thereon set forth in the notice
of such Net Proceeds Offer. Any Security not so accepted shall be promptly
mailed by the Company to the Holder thereof. For purposes of this Section 4.13,
the Trustee shall act as the Paying Agent. Any amounts remaining after the
purchase of Securities pursuant to a Net Proceeds Offer shall be returned by the
Trustee to the Company.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Net Proceeds Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.13, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.13 by virtue thereof.
To the extent any Collateral is disposed of as permitted by
this Section 4.13 (except to the Company or any of its Restricted Subsidiaries),
such Collateral shall be sold free and clear of the Liens created by the
Securities, and the Collateral Agent shall be authorized to take such actions as
it deems appropriate to effect the foregoing. To the extent the Net Proceeds
Offer is not fully subscribed, any unutilized Net Proceeds Offer Amount shall be
secured by a Lien on such unutilized Net Proceeds Offer Amount (which Lien shall
be junior to the Lien securing the Indebtedness incurred pursuant to the New
Credit Facility) and such unutilized Net Proceeds Offer Amount shall constitute
Collateral in accordance with the Security Documents.
SECTION 4.14. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an "Affiliate Transaction"), other than (x) Affiliate Transactions
permitted under paragraph (b) below and (y) Affiliate Transactions on terms that
are no less favorable than those that might reasonably have been obtained in a
comparable transaction at such time on an arm's-length basis from a Person that
is not an Affiliate of the Company or such Restricted Subsidiary.
All Affiliate Transactions (and each series of related
Affiliate Transactions which are similar or part of a common plan) involving
aggregate payments or other property with a fair market value in excess of
$250,000 shall be approved by the Board of Directors of the Company or such
Restricted Subsidiary, as the case may be, such approval to be evidenced by a
Board Resolution stating that such Board of Directors has determined that such
transaction complies with the foregoing provisions. If the Company or any
Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a
series of related Affiliate Transactions related to a common plan) that involves
an aggregate fair market value of more than $2.5 million, the Company or such
Restricted Subsidiary, as the case may be, shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of such transaction or
series of related transactions to the Company or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in the this Section 4.14 shall
not apply to:
(1) reasonable fees and compensation paid to and indemnity
provided on behalf of, officers, directors, employees or consultants of
the Company or any Restricted Subsidiary of the Company as determined
in good faith by the Company's Board of Directors or senior management;
(2) transactions exclusively between or among the Company and
any of its Wholly Owned Restricted Subsidiaries or exclusively between
or among such Wholly Owned Restricted Subsidiaries, provided such
transactions are not otherwise prohibited by this Indenture;
(3) any agreement as in effect as of the Issue Date or any
amendment thereto or any transaction contemplated thereby (including
pursuant to any amendment thereto) in any replacement agreement thereto
so long as any such amendment or replacement agreement is not more
disadvantageous to the Holders in any material respect than the
original agreement as in effect on the Issue Date; and
(4) Permitted Investments.
SECTION 4.15. Change of Control.
Upon the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company shall notify the
Holders, in the manner prescribed below, of such occurrence and shall make an
offer to purchase (the "Change of Control Offer") on a Business Day (the "Change
of Control Payment Date") that is not later than 60 days following the Change of
Control Date, all Securities then outstanding at a purchase price equal to 101%
of the principal amount thereof plus accrued and unpaid interest and liquidated
damages, if any, to the Change of Control Payment Date.
Notice of a Change of Control Offer shall be mailed by the
Company to the Securityholders not less than 30 days nor more than 60 days
before the Change of Control Payment Date. The Change of Control Offer shall
remain open from the time of mailing for at least 20 Business Days and until
5:00 p.m., New York City time, on the Business Day preceding the Change of
Control Payment Date. The notice, which shall govern the terms of the Change of
Control Offer, shall include such disclosures as are required by law and shall
state:
(a) that a Change of Control Offer is being made pursuant to
this Section 4.15 and that all Securities validly tendered and not
properly withdrawn will be accepted for payment;
(b) the purchase price (including the amount of accrued
interest, if any) for each Security and the Change of Control Payment
Date;
(c) that any Security not tendered for payment will continue
to accrue interest in accordance with the terms thereof;
(d) that, unless the Company defaults on making the payment,
any Security accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control
Payment Date;
(e) that Holders electing to have Securities purchased
pursuant to a Change of Control Offer will be required to surrender
their Securities to the Paying Agent at the address specified in the
notice prior to 5:00 p.m., New York City time, on the Business Day
preceding the Change of Control Payment Date and must complete any form
letter of transmittal proposed by the Company;
(f) that Holders of Securities will be entitled to withdraw
their election if the Paying Agent receives, not later than 5:00 p.m.,
New York City time, on the Business Day preceding the Change of Control
Payment Date, a tested telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of Securities
delivered for purchase, the Security certificate number (if any) and a
statement that such Holder is withdrawing his election to have such
Securities purchased;
(g) that Holders whose certificated Securities are purchased
only in part will be issued certificated Securities equal in principal
amount to the unpurchased portion of the Securities surrendered;
(h) the instructions that Holders must follow in order to
tender their Securities; and
(i) the summary of the circumstances and relevant facts
regarding such Change of Control.
On the Change of Control Payment Date, the Company shall (i)
accept for payment Securities or portions thereof validly tendered and not
properly withdrawn pursuant to the Change of Control Offer, (ii) deposit with
the Paying Agent money sufficient to pay the purchase price of all Securities or
portions thereof so tendered and accepted and (iii) deliver to the Trustee the
Securities so accepted together with an Officers' Certificate setting forth the
Securities or portions thereof tendered to and accepted for payment by the
Company. The Paying Agent shall promptly mail or deliver to the Holders of
Securities so accepted payment in an amount equal to the purchase price, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
certificated Security equal in principal amount to any unpurchased portion of
any certificated Security surrendered. Any Securities not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof.
Any amounts remaining with the Paying Agent after purchase of
Securities pursuant to a Change of Control Offer shall be returned by the
Trustee to the Company.
If the Company is required to make a Change of Control Offer,
the Company will comply with all applicable tender offer laws and regulations,
including, to the extent applicable, Section 14(e) and Rule 14e-1 under the
Exchange Act, and any other applicable securities laws and regulations and any
applicable requirements of any securities exchange on which the Securities are
listed and shall not be deemed to have breached its obligations under this
Section 4.15 or any other provision of this Indenture by virtue thereof.
SECTION 4.16. Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) pay dividends, in cash or otherwise,
or make any other distributions on or in respect of its Capital Stock or any
other interest or participation in, or measured by, its profits, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to the Company or any other Restricted Subsidiary, or (d)
sell, lease or transfer any of its properties or assets to the Company or any
other Restricted Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) this Indenture, the New Credit Facility and
the Security Documents, (ii) any restrictions existing under or contemplated by
agreements in effect on the Issue Date, (iii) with respect to a Restricted
Subsidiary of the Company that is not a Restricted Subsidiary of the Company on
the Issue Date, in existence at the time such Person becomes a Restricted
Subsidiary of such Issuer (but not created in contemplation of such Person
becoming a Restricted Subsidiary), (iv) applicable law or any applicable rule,
regulation or order, (v) customary restrictions arising from Liens permitted
under Section 4.11 to the extent related to the assets subject to such Liens,
(vi) restrictions on cash or other deposits imposed by customers under contracts
entered into in the ordinary course of business, (vii) customary provisions
contained in leases, joint venture, license and other agreements entered into in
the ordinary course of business, (viii) any restrictions existing under any
agreement that refinances or replaces an agreement containing a restriction
permitted by clauses (i), (ii) and (iii) above; provided that the terms and
conditions of any such restrictions under this clause (viii) are not materially
less favorable to the Holders than those under or pursuant to the agreement
being replaced or the agreement evidencing the Indebtedness refinanced and (ix)
provisions contained in agreements or instruments that prohibit the transfer of
all or substantially all of the assets of the obligor and its Subsidiaries
unless the transferee shall assume the obligations of the obligor under such
agreement or instrument.
SECTION 4.17. Limitation on Designations of Unrestricted
Subsidiaries.
The Company may designate any Subsidiary of the Company (other
than any Subsidiary which owns or holds any Collateral) as an "Unrestricted
Subsidiary" under this Indenture (a "Designation") only if: (a) no Default or
Event of Default shall be occurring at the time of or result from such
Designation; (b) the Company would be permitted under this Indenture to make an
Investment at the time of Designation (assuming the effectiveness of such
Designation) in an amount (the "Designation Amount") equal to the Fair Market
Value of the Capital Stock of such Subsidiary on such date; and (c) the Company
would be permitted under this Indenture to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.9 at the
time of Designation (assuming the effectiveness of such Designation). In the
event of any such Designation, the Company shall be deemed to have made an
Investment constituting a Restricted Payment pursuant to Section 4.12 for all
purposes of this Indenture in the Designation Amount.
In addition, (i) the Company shall not, and shall not permit
any Restricted Subsidiary to, at any time provide credit support for, or a
guarantee of, any Indebtedness of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness), (y) be
directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary (including any
right to take enforcement action against such Unrestricted Subsidiary), except
in the case of clause (x) or (y) to the extent permitted under Section 4.12, and
(ii) no Unrestricted Subsidiary shall at any time guarantee or otherwise provide
credit support for any obligation of the Company or any Restricted Subsidiary.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if: (a) no Default or Event of Default
shall have occurred and be continuing at the time of and after giving effect to
such Revocation; and (b) all Liens, Indebtedness and Affiliate Transactions of
or involving such Unrestricted Subsidiary outstanding immediately following such
Revocation would, if incurred at such time, have been permitted to be incurred
for all purposes of this Indenture.
All Designations and Revocations must be evidenced by Board
Resolutions of the Company delivered to the Trustee certifying compliance with
this Section 4.17.
SECTION 4.18. Impairment of Security Interest.
Except as expressly permitted by the terms of the Security
Documents, the Company shall not, and shall not permit any of its Subsidiaries
to, take or knowingly or negligently omit to take any action, which action or
omission might or would have the result of impairing the security interest in
favor of the Collateral Agent, with respect to any Property then constituting
Collateral, and, except as expressly permitted by the terms of the Security
Documents, the Company shall not grant to any Person (other than the Collateral
Agent) any interest whatsoever in such Collateral other than Liens permitted by
this Indenture or the Security Documents.
SECTION 4.19. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent permitted by law) that it
will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or that may
affect the covenants or the performance of this Indenture; and (to the extent
permitted by law) the Company hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee or the Collateral Agent,
but will suffer and permit the execution of every such power as though no such
law had been enacted.
SECTION 4.20. Limitation on Preferred Stock of Restricted
Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries
to issue any Preferred Stock (other than to the Company or to a Wholly Owned
Restricted Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company.
SECTION 4.21. Additional Interest, Rating of Securities.
The Company hereby agrees that the Interest Rate shall
increase to 13 1/2% (such increase, the "Additional Interest") if the Securities
(i) have not been rated by Moody's and S&P on or prior to April 15, 2000 or (ii)
have not received a rating better than Caa1 from Moody's and a rating better
than CCC+ from S&P on or prior to April 15, 2000. At such time as the Securities
are rated better than Caa1 and CCC+, the Interest Rate on the Securities will be
reduced to 12 1/2%.
Such Additional Interest shall be payable in whole, but not in
part, from the Issue Date by the issuance of additional Securities (valued at
100% of the face amount thereof); provided, however, that in connection with any
redemption or repurchase of the Securities as permitted or required by the terms
of this Indenture or the Securities or the acceleration of the maturity of the
Securities pursuant to the terms of this Indenture or the Securities, all
accrued and unpaid interest shall be payable solely in cash.
SECTION 4.22. Excess Cash Flow.
The Company shall apply not less than 50% of Excess Cash Flow
for the relevant Excess Cash Payment Period to repay or otherwise redeem (i)
Indebtedness secured by any assets of the Company, (ii) Indebtedness outstanding
incurred under the New Credit Facility (unless the corresponding obligation
under the New Credit Facility is waived by the Required Lenders (as defined
therein)) or, if the New Credit Facility is no longer in existence and (iii)
Indebtedness that ranks senior in right of payment to the Securities by virtue
of a Lien on the Collateral prior to the Lien on the Collateral in favor of the
Trustee for the benefit of the Holders. If the Company fails to comply with the
provisions of this Section 4.22, it will make an offer to purchase the
Securities in accordance with paragraph 8(c) of the Initial Securities and
paragraph 7(c) of the Exchange Securities, as applicable.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. When Company May Merge, Etc.
The Company will not, in any transaction or series of
transactions (whether or not the Company is the surviving corporation), merge or
consolidate with or into, or sell, assign, convey, transfer, lease or otherwise
dispose of (or cause or permit any Guarantor to sell, assign, convey, transfer,
lease or otherwise dispose of) all or substantially all of the Company's
properties and assets (determined on a consolidated basis for the Company and
the Guarantors) whether as an entirety or substantially to, any Person or
Persons unless at the time of and after giving effect thereto:
(a) either (i) if the transaction or series of transactions is
a merger or consolidation, the Company shall be the surviving Person of
such merger or consolidation, or (ii) the Person (if other than the
Company) formed by any such consolidation or into which the Company is
merged or to which the properties and assets of the Company and/or any
Guarantor, as the case may be, are transferred (any such surviving
Person or transferee Person being a "Surviving Entity") shall be a
corporation or other business entity existing under the laws of the
United States of America, any state thereof or the District of Columbia
and shall expressly assume by a supplemental indenture executed and
delivered to the Trustee in form reasonably satisfactory to the
Trustee, all the obligations of the Company under the Securities, this
Indenture and the Security Documents, and in each case, this Indenture
shall remain in full force and effect and such Person shall have taken
all steps necessary or reasonably requested by the Trustee to protect
and perfect the Security Interests granted or purported to be granted
under the Security Documents;
(b) immediately before and 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), no Default or Event of Default
shall have occurred and be continuing;
(c) 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 by
the Company and the Guarantors in connection with or in respect of such
transaction or series of transactions), the Company or the Surviving
Entity, as the case may be, could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.9;
(d) each Guarantor (other than a Guarantor whose Guarantee is
to be released in accordance with the terms of this Indenture), unless
it is the other party to the transaction, shall, to the extent
permitted by applicable law, have by supplemental indenture confirmed
that after consummation of such transaction its Guarantee shall apply,
as such Guarantee applied on the date it was granted under the
Securities to the obligations of the Company under the Securities, to
the obligations of the Company or such Person, as the case may be,
under this Indenture and the Securities;
(e) the Company or the Surviving Entity shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel
stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction or series of transactions, such supplemental indenture
complies with this Section 5.1, and that all conditions precedent in
this Indenture relating to the transaction or series of transactions
have been satisfied; and
(f) the Company or the Surviving Entity shall have delivered
to the Trustee all instruments of further assurance and all actions as
are necessary to maintain, preserve and protect the rights of the
Holders of the Securities and the Trustee hereunder and under each of
the applicable Security Documents with respect to the Security
Interests have been taken.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
The sale, assignment, transfer, lease, conveyance or other
disposition by the Company or the Guarantors of all or substantially all of
their respective property or assets to one or more of their Subsidiaries shall
not relieve either the Company or the Guarantors from their respective
obligations hereunder, under the Securities or under the Security Documents.
Subject to the foregoing, any Guarantor may consolidate with, merge into or
transfer all or part of its properties and assets to the Company or any other
Guarantor or other entity that becomes, by reason of such consolidation, merger
or transfer, a Guarantor.
Each Guarantor will not, and the Company will not, cause or
permit any Guarantor to, consolidate with or merge with or into any Person other
than the Company or any other Guarantor unless:
(a) the entity formed by or surviving any such consolidation or merger (if
other than the Guarantor) or to which such sale, lease, conveyance or
other disposition shall have been made is a corporation organized and
existing under the laws of the United States or any State thereof or
the District of Columbia;
(b) such entity assumes by supplemental indenture all of the obligations of
the Guarantor on the Guarantee and under the Security Documents and
such entity shall have taken all steps necessary or reasonably
requested by the Collateral Agent to protect and perfect the Security
Interests granted or purported to be granted under the Security
Documents;
(c) immediately before and 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), no Default or Event of Default shall have occurred
and be continuing; and
(d) immediately after giving effect to such transaction or series of
transactions and the use of any net proceeds therefrom on a pro forma
basis, the Company could satisfy the provisions of clause (c) of the
first paragraph of this Section 5.1.
Any merger or consolidation of a Guarantor with and into the
Company (with the Company being the surviving entity) or another Guarantor that
is a Wholly Owned Restricted Subsidiary of the Company need only comply with
clause (e) of the first paragraph of this Section 5.1.
SECTION 5.2. Successor Entity Substituted.
Upon any consolidation, or merger or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.1 in
which the Company is not the continuing corporation, the successor Person formed
by such consolidation or into which the Company is merged or to which such
conveyance, lease or transfer is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture and
the Securities with the same effect as if such surviving entity had been named
as such; provided, however, that the predecessor Company shall not be relieved
from the obligation to pay the principal of and interest and liquidated damage,
if any, on the Securities except in the case of a sale of all of the Company's
assets that meets the requirements of Section 5.1 hereof.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.
The following are "Events of Default" under this Indenture:
(a) default in the payment of any interest on the Securities
when it becomes due and payable and continuance of such default for at
least twenty days;
(b) default in the payment of the principal of, or premium, if
any, on the Securities when due and payable, at maturity, upon
acceleration, redemption, pursuant to a required offer to purchase or
otherwise;
(c) the failure by the Company to comply with its obligations
under Sections 4.13, 4.15 or 5.1 hereof, paragraph 8 of the Notes and
paragraph 7 of the Exchange Notes;
(d) default in the performance of or compliance with, or
breach of, any term, covenant, condition or provision of the
Securities, this Indenture (other than defaults specified in clause
(a), (b) or (c) above), or the Escrow Agreement and continuance of such
default or breach for a period of 60 days after written notice to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the outstanding
Securities;
(e) default in the payment of any principal, premium or
interest under one or more agreements, instruments, mortgages, bonds,
debentures or other evidences of Indebtedness (a "Debt Instrument")
under which the Company or one or more Restricted Subsidiaries or the
Company and one or more Restricted Subsidiaries then have outstanding
Indebtedness in excess of $2.5 million, individually or in the
aggregate, and either (x) such Indebtedness is already due and payable
in full or (y) such default or defaults have resulted in the
acceleration of such Indebtedness prior to its express maturity;
(f) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for the
payment of money in excess of $2.5 million, either individually or in
the aggregate, shall be entered against the Company or any Restricted
Subsidiary of the Company or any of their respective properties and
shall not be discharged or fully bonded and there shall have been a
period of 60 days after the date on which any period for appeal has
expired and during which a stay of enforcement of such judgment, order
or decree shall not be in effect;
(g) either (i) the collateral agent under the New Credit
Facility, (ii) any holder of Indebtedness secured by any of the
Collateral or (iii) any holder of at least $2.5 million in aggregate
principal amount of Indebtedness of the Company or any of the
Restricted Subsidiaries shall commence (or have commenced on its
behalf) judicial proceedings to foreclose upon assets of the Company or
any of the Restricted Subsidiaries having an aggregate Fair Market
Value, individually or in the aggregate, in excess of $2.5 million or
shall have exercised any right under applicable law or applicable
security documents to take ownership of any such assets in lieu of
foreclosure;
(h) any Guarantee ceases to be in full force and effect or is
declared null and void or any Guarantor denies that it has any further
liability under any Guarantee or gives notice to such effect (other
than by reason of the termination of this Indenture or the release of
any such Guarantee in accordance with this Indenture);
(i) except as contemplated by its terms, any of the Security
Documents ceases to be in full force and effect or any of the Security
Documents ceases to give the Collateral Agent or the Trustee, in any
material respect, the Liens, rights, powers and privileges purported to
be created thereby;
(j) the Company or any Significant Subsidiary of the Company
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors or
(E) shall admit in writing its inability to pay its
debts generally; or
(k) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary of the Company in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any
Significant Subsidiary of the Company for all or substantially
all of its properties, or
(C) orders the liquidation of the Company or any
Significant Subsidiary of the Company,
and in each case the order or decree remains unstayed and in effect for 60 days.
For purposes of this Section 6.1, the term "Custodian" means
any receiver, trustee, assignee, liquidator, sequestrator or similar official
charged with maintaining possession or control over property for one or more
creditors.
Subject to the provisions of Sections 7.1 and 7.2, the Trustee
shall not be charged with knowledge of any Event of Default unless written
notice thereof shall have been given to a Responsible Officer at the Corporate
Trust Office of the Trustee by the Company or any other Person.
SECTION 6.2. Acceleration.
If an Event of Default (other than an Event of Default with
respect to the Company specified in clauses (j) and (k) of Section 6.1) occurs
and is continuing, then the Trustee or the Holders of at least 25% in aggregate
principal amount of the outstanding Securities may, by written notice to the
Trustee and the Collateral Agent, declare the principal of, premium, if any, and
accrued interest on, all the Securities to be due and payable immediately. Upon
any such declaration such principal shall become due and payable immediately. If
an Event of Default specified in clause (j) or (k) of Section 6.1 with respect
to the Company occurs and is continuing, then the principal of, premium, if any,
and accrued interest on, all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act or notice.
At any time after a declaration of acceleration under this
Section 6.2, but before a judgment or decree for payment of the money due has
been obtained by the Trustee and before any foreclosure (whether pursuant to
judicial proceedings or otherwise), or the taking of ownership in lieu of
foreclosure, upon any Collateral by the Collateral Agent (on behalf of the
Trustee or Holders), by the Trustee or at the direction of the Holders, the
Holders of not less than a majority in aggregate principal amount of outstanding
Securities, by written notice to the Company and the Trustee, may rescind such
declaration if (a) the Company has paid or deposited with the Trustee or the
Collateral Agent a sum sufficient to pay (i) all sums paid or advanced by the
Trustee or the Collateral Agent under this Indenture and the Security Documents
and the reasonable compensation, expenses, disbursements and advances of the
Trustee and the Collateral Agent and their respective agents and counsel, (ii)
all overdue interest on all Securities, (iii) the principal of and premium, if
any, on any Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Securities, and
(iv) to the extent that payment of such interest is lawful, interest upon
overdue interest and overdue principal at the rate borne by the Securities which
has become due otherwise than by such declaration of acceleration; (b) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction; and (c) all Events of Default, other than the
non-payment of principal of, premium, if any, and interest on the Securities
that have become due solely by such declaration of acceleration, have been cured
or waived.
SECTION 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
All rights of action and claims under this Indenture or the
Securities may be enforced by the Trustee even if the Trustee does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
Each Holder, by accepting a Security, acknowledges that the
exercise of remedies by the Collateral Agent with respect to the Collateral is
subject to the terms and conditions of this Indenture and the Security Documents
and the proceeds received upon realization of this Indenture and the Collateral
shall be applied by the Collateral Agent in accordance with the Security
Documents and the Trustee shall thereafter apply any proceeds received by it in
accordance with Section 6.10.
By acceptance of the benefits of this Indenture and the
Security Documents each Holder and the Trustee confirms that the Collateral
Agent is authorized to execute and deliver and perform its obligations under the
Security Documents and the remedies set forth herein shall be subject to the
terms of such Security Documents.
SECTION 6.4. Waiver of Past Default.
Subject to Sections 6.7 and 9.2, the Holders of not less than
a majority in aggregate principal amount of the outstanding Securities by notice
to the Trustee may on behalf of the Holders of all the Securities waive any past
Default or Event of Default and its consequences, except a Default specified in
Section 6.1(a) or (b) or in respect of any provision hereof which cannot be
modified or amended without the consent of the Holder so affected pursuant to
Section 9.2. When a Default or Event of Default is so waived, it shall be deemed
cured and shall cease.
SECTION 6.5. Control by Majority.
The Holders of at least a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it; provided, however, that the Trustee may refuse to follow
any direction that (i) conflicts with law or this Indenture, (ii) the Trustee
determines may be unduly prejudicial to the rights of another Securityholder, or
(iii) may involve the Trustee in personal liability unless the Trustee has
indemnification satisfactory to it in its sole discretion against any loss or
expense caused by its following such direction; and provided, further, that the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction.
SECTION 6.6. Limitation on Suits.
No Holder shall have any right to institute any proceeding
with respect to this Indenture, the Security Documents or the Securities or any
remedy thereunder, unless the Holders of at least 25% in aggregate principal
amount of the outstanding Securities have made written request, and offered
reasonable security or indemnity, to the Trustee to institute such proceeding as
Trustee, the Trustee has failed to institute such proceeding within 60 days
after receipt of such notice and the Trustee, within such 60-day period, has not
received directions inconsistent with such written request by Holders of a
majority in aggregate principal amount of the outstanding Securities. Such
limitations do not apply, however, to a suit instituted by a holder of a
Security for the enforcement of the payment of the principal of, premium, if
any, or interest on such Security on or after the respective due dates expressed
in such Security.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over such
other Securityholder.
SECTION 6.7. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of, premium, if any, and
interest on a Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, is absolute and unconditional and shall not be impaired
or affected without the consent of such Holder except to the extent that the
institution or prosecution of such suit or the entry of judgment therein would,
under applicable law, result in the surrender, impairment or waiver of the Lien
of this Indenture and the Security Documents upon the Collateral.
SECTION 6.8. Collection Suit by Trustee or Collateral Agent.
If an Event of Default specified in Section 6.1(a) or (b)
occurs and is continuing, the Trustee and/or the Collateral Agent may recover
judgment in its own name and as trustee of an express trust against the Company
or any other obligor on the Securities for the whole amount of principal,
premium, if any, and accrued interest remaining unpaid, together with interest
overdue on principal, premium, if any, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the Interest Rate and in such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee and/or the Collateral Agent,
their respective agents and counsel.
SECTION 6.9. Trustee or Collateral Agent May File Proofs
of Claim.
The Trustee and/or the Collateral Agent shall be entitled and
empowered to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and/or the
Collateral Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee and/or the Collateral Agent, its or
their respective agents and counsel) and the Securityholders allowed in any
judicial proceedings relative to the Company, the Guarantors and the Pledgors,
their creditors or their property and shall be entitled and empowered to collect
and receive any monies or other property payable or deliverable on any such
claims and to distribute the same, and any Custodian in any such judicial
proceedings is hereby authorized by each Securityholder to make such payments to
the Trustee and/or the Collateral Agent and, in the event that the Trustee
and/or the Collateral Agent shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee and/or the Collateral
Agent any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and/or the Collateral Agent, its or
their respective agents and counsel, and any other amounts due the Trustee under
Section 7.7. Nothing herein contained shall be deemed to authorize the Trustee
and/or the Collateral Agent to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article VI
or as a result of a distribution by the Collateral Agent pursuant to any of the
Security Documents, it shall pay out such money in the following order:
First: to the Trustee for all amounts due under Section 7.7;
Second: to Holders for interest accrued on the Securities, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Securities for interest;
Third: to Holders for principal amounts owing under the Securities,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities
for principal; and
Fourth: to the Company or the Guarantors.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Securityholders pursuant to
this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.5, or a suit by Holders of more than 10% in
aggregate principal amount of the outstanding Securities.
ARTICLE VII
TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default known to the Trustee has occurred
and is continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and the Security Documents and use the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs. The Trustee shall
not be deemed to have knowledge of an Event of Default unless it is actually
known by a Responsible Officer or written notice thereof has been given to a
Responsible Officer by the Company or another Person.
(b) Except during the continuance of an Event of Default
actually known to a Responsible Officer of the Trustee:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and in the Security Documents
and no others and no implied covenants or obligations shall be read
into this Indenture against the Trustee.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions or such other documents furnished to the Trustee and
conforming to the requirements of this Indenture. However, in the case
of any such certificates or opinions or such other documents which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such certificates and opinions to
determine whether they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section 7.1.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.2, 6.4 or 6.5.
(d) No provision of this Indenture or the Security Documents
shall require the Trustee or the Collateral Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder or exercise any of its rights or powers hereunder or under
the Security Documents if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.1.
(f) Neither the Trustee nor the Collateral Agent shall be
liable for interest on any money received by it except as the Trustee or the
Collateral Agent may agree in writing with the Company. Money held in trust by
the Trustee or the Collateral Agent need not be segregated from other funds
except to the extent required by law.
(g) Notwithstanding anything herein or in the Security
Documents to the contrary, the Trustee may refuse to perform any duty or
exercise any right or power arising hereunder unless it is provided adequate
funds to enable it to do so and it receives indemnity satisfactory to it in its
sole discretion against any loss, liability, fee or expense.
SECTION 7.2. Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting with
respect to any matter contemplated by this Indenture, it may require an
Officers' Certificate or an Opinion of Counsel, which shall conform to
the provisions of Section 13.5. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
(other than the negligence or willful misconduct of an agent who is an
employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) Subject to Section 9.2 hereof, the Trustee may (but shall
not be obligated to), without the consent of the Holders, give any
consent, waiver or approval required hereunder.
(g) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture or the Security
Documents at the request or direction of any Holder pursuant to this
Indenture, unless such Holder shall have offered to the Trustee and/or
the Collateral Agent security or indemnity satisfactory to the Trustee
and/or the Collateral Agent against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction.
SECTION 7.3. Individual Rights of Trustee.
The Trustee in its individual capacity or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the
Company, its Subsidiaries and their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Securities
or the Security Documents or the Collateral covered thereby, or of any insurance
thereon, and it shall not be accountable for the Company's use of the proceeds
from the issuance of the Securities, and it shall not be responsible for any
statement of the Company or the Guarantors in this Indenture, the Security
Documents or any document issued in connection with the sale of Securities or
any statement in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.5. Notice of Defaults.
If a Default or an Event of Default with respect to the
Securities occurs and is continuing and is known to a Responsible Officer, the
Trustee shall mail to each Securityholder and the Collateral Agent notice of the
Default or Event of Default within 30 days after obtaining knowledge thereof.
Except in the case of a Default or an Event of Default in payment of principal
of or interest on any Security, the Trustee may withhold the notice to such
parties if a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interest of Securityholders.
SECTION 7.6. Reports by Trustee to Holders.
To the extent required by TIA ss. 313(a), within 60 days after
May 15th of each year commencing with the year 2000 and for as long as there are
Securities outstanding hereunder, the Trustee shall mail to each Securityholder
the Company's brief report dated as of such date that complies with TIA ss.
313(a). The Trustee also shall comply with TIA ss. 313(b) and TIA ss. 313(c) and
(d). A copy of such report at the time of its mailing to Securityholders shall
be filed with the SEC, if requested by the Company, and each stock exchange, if
any, on which the Securities are listed. A copy of each report at the time of
its mailing to holders of Securities shall be mailed to the Company and filed
with the SEC and each securities exchange, if any, on which the Securities are
listed.
The Company shall promptly notify the Trustee if the
Securities become listed on any stock exchange, and the Trustee shall comply
with TIA ss. 313(d).
SECTION 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services rendered hereunder. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket disbursements, expenses and advances (including
reasonable fees and expenses of counsel) incurred or made by it in addition to
the compensation for its services. Such expenses shall include the reasonable
compensation, out-of-pocket disbursements and expenses of the Trustee's, agents,
accountants, experts, custodians and counsel and any taxes or other expenses
incurred by a trust created pursuant to Section 8.1 hereof.
The Company shall indemnify the Trustee and hold it harmless
against, any claim, demand, expense (including but not limited to attorneys'
fees and expenses), loss or liability incurred by it arising out of or in
connection with the administration of this Indenture or the Security Documents,
as applicable, and its duties hereunder or thereunder. The Trustee shall notify
the Company promptly of any claim asserted against it for which it may seek
indemnity. However, failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. Notwithstanding anything to
the contrary herein, the Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee which is determined by a
court of competent jurisdiction by final judgment to have been caused by the
Trustee's own willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section
7.7, each of the Trustee, the Paying Agent, the Registrar and the Collateral
Agent shall have a lien prior to the Securities on all money or property held or
collected by it, in its capacity as Trustee, Paying Agent, Registrar and the
Collateral Agent, as the case may be, except money or property held in trust to
pay principal of or interest on particular Securities.
When the Trustee incurs expenses (including the reasonable
fees and expenses of counsel) or renders services after an Event of Default
specified in Section 6.1(k) or (l) occurs, the expenses and the compensation for
the services are intended to constitute expenses of administration under any
Bankruptcy Law.
The obligations under this Section 7.7 shall survive the
resignation and removal of the Trustee, discharge of this Indenture and, to the
extent permitted by applicable law, rejection or termination in bankruptcy.
SECTION 7.8. Replacement of Trustee.
The Trustee may resign at any time (subject to the further
provisions of this Section 7.8) by so notifying the Company in writing, such
resignation to be effective upon the appointment of a successor Trustee. The
Holders of a majority in principal amount of the outstanding Securities may
remove the Trustee by so notifying the Trustee in writing and may appoint a
successor Trustee with the Company's consent. The Company may remove the Trustee
within a reasonable period of time following a request by the Company if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting or fails to act in
accordance with its obligations hereunder.
If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities may appoint a
successor Trustee, whose identity shall be subject to the Company's consent, to
replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and the Company. Immediately after that, the
retiring Trustee shall transfer, after payment to it of all sums owing to the
Trustee pursuant to this Indenture, all property held by it as Trustee to the
successor Trustee (subject to the lien provided in Section 7.7), the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Securityholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 25% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee. Any successor Trustee
appointed pursuant to this Indenture shall be deemed to be an appointment of
such successor in all capacities of the former Trustee under the Security
Documents and such successor shall assume all of the obligations of the Trustee
pursuant to the Security Documents.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee. The retiring Trustee shall have no liability
for any act or omissions by any successor Trustee.
SECTION 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any further act
shall be the successor Trustee provided such corporation shall be otherwise
qualified and eligible under this Article VII.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1) and (2). The Trustee shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss.
310(b); provided, however, that there shall be excluded from the operation of
TIA ss. 310(b)(1) any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met. The provisions of TIA ss. 310 shall apply to the Company and
any other obligor of the Securities.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or
been removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
The provisions of TIA ss. 311 shall apply to the Company and any other obligor
on the Securities.
SECTION 7.12. Co-Collateral Agent.
(a) If at any time or times it shall be necessary or prudent
in order to conform to any law of any jurisdiction in which any of the
Collateral shall be located, or the Collateral Agent shall be advised by counsel
satisfactory to it that it is necessary or prudent in the interest of the
Holders, or 25% of the Holders of the outstanding Securities shall in writing so
request the Collateral Agent and the Company, or the Collateral Agent shall deem
it desirable for its own protection in the performance of its duties hereunder,
the Collateral Agent and the Company shall execute and deliver all instruments
and agreements necessary or proper to constitute another bank or trust company,
or one or more Persons approved by the Collateral Agent and the Company, either
to act as co-collateral agent or co-collateral agents (each a "co-collateral
agent") of all or any of the Collateral, jointly with the Collateral Agent, or
to act as separate collateral agent or collateral agents of any such property.
If the Company shall not have joined in the execution of such instruments and
agreements within 10 days after it receives a written request from the
Collateral Agent to do so, or if a notice of acceleration is in effect, the
Collateral Agent may act under the foregoing provisions of this Section 7.12
without the concurrence of the Company. The Company hereby appoints the
Collateral Agent as its agent and attorney to act for it under the foregoing
provisions of this Section 7.12 in either of such contingencies.
(b) Every separate trustee and every co-trustee, other than
any successor Trustee appointed pursuant to Section 7.8, shall, to the extent
permitted by law, be appointed and act and be such, subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee hereunder shall be conferred or imposed and
exercised or performed by the Trustee and such separate trustee or
separate trustees or co-trustee or co-trustees, jointly, as shall be
provided in the instrument appointing such separate trustee or separate
trustees or co-trustee or co-trustees, except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations shall be exercised and performed by such separate trustee
or separate trustees or co-trustee or co-trustees;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Company and the Trustee, at any time by an instrument
in writing executed by them jointly, may accept the resignation of or
remove any such separate trustee or co-trustee and, in that case by an
instrument in writing executed by them jointly, may appoint a successor
to such separate trustee or co-trustee, as the case may be, anything
contained herein to the contrary notwithstanding. If the Company shall
not have joined in the execution of any such instrument within 10 days
after it receives a written request from the Trustee to do so, or if a
notice of acceleration is in effect, the Trustee shall have the power
to accept the resignation of or remove any such separate trustee or
co-trustee and to appoint a successor without the concurrence of the
Company, the Company hereby appointing the Trustee its agent and
attorney to act for it in such connection in such contingency. If the
Trustee shall have appointed a separate trustee or separate trustees or
co-trustee or co-trustees as above provided, the Trustee may at any
time, by an instrument in writing, accept the resignation of or remove
any such separate trustee or co-trustee and the successor to any such
separate trustee or co-trustee shall be appointed by the Company and
the Trustee, or by the trustee alone pursuant to this Section.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of
further effect (except as to those obligations referred to in the penultimate
paragraph of this Section 8.1) as to all outstanding Securities and all rights
of the Trustee and the Holders in and to the Collateral under the Security
Documents shall be released when:
(a) either (i) all the Securities theretofore authenticated
and delivered (except lost, stolen or destroyed Securities which have
been replaced or repaid and Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust) have been delivered to the Trustee for cancellation or (ii)
all Securities not theretofore delivered to the Trustee for
cancellation (except lost, stolen or destroyed Securities which have
been replaced or paid) have been called for redemption pursuant to the
terms of the Securities or have otherwise become due and payable 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 Securities theretofore delivered to the
Trustee for cancellation, for principal of, premium, if any, and
interest on the Securities to the date of deposit together with
irrevocable instructions from the Company directing the Trustee to
apply such funds to the payment thereof at maturity or redemption, as
the case may be; and
(b) the Company and the Guarantors have paid all other sums
payable under this Indenture, the Securities, the Guarantees and the
Security Documents (so long as such agreements relate to the
Securities) by the Company and the Guarantors; and
(c) there exists no Default or Event of Default under this
Indenture; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel stating that all conditions
precedent under this Section 8.1 relating to satisfaction and discharge
of this Indenture, the Securities and the Guarantees have been complied
with.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.5, 2.6, 2.7, 2.8, 4.1, 4.2, 7.7, 7.8, 8.2, 8.4 and 8.5
shall survive until the Securities are no longer outstanding. After the
Securities are no longer outstanding, the Company's obligations in Sections 7.7,
8.4 and 8.5 shall survive.
After such delivery or irrevocable deposit the Trustee shall
acknowledge in writing the discharge of the Company's and the Guarantors'
obligations under the Securities, the Guarantees and this Indenture except for
those surviving obligations specified above.
SECTION 8.2. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution, at any
time, with respect to the Securities, elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities upon compliance
with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (b), each of the Company and the Guarantors
shall be deemed to have been released and discharged from its obligations with
respect to the outstanding Securities and Guarantees on the date the conditions
set forth below are satisfied (hereinafter, "legal defeasance"). For this
purpose, such legal defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the outstanding
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of paragraph (e) below and the other Sections of and matters under this
Indenture referred to in (i) and (ii) below, and to have satisfied all their
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of outstanding Securities to receive solely from the trust
fund described in paragraph (d) below and as more fully set forth in such
paragraph, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Sections 2.3, 2.6, 2.7. and
4.2, and, with respect to the Trustee, under Section 7.7, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (iv) this
Section 8.2. In addition, for this purpose, such legal defeasance means that the
Guarantors shall be deemed to have discharged and satisfied their obligations
under the Guarantees (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same). Subject to compliance with
this Section 8.2, the Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below with
respect to the Securities.
(c) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (c), the Company and the Guarantors shall be
released and discharged from their obligations under any covenant contained in
Article V and in Sections 4.4 through 4.22, with respect to the outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities shall thereafter be
deemed to be not "outstanding" for the purpose of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such Sections, but shall continue to be deemed "outstanding" for
all other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to the outstanding Securities, the Company and each Guarantor
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.1, but, except as specified above, the
remainder of this Indenture and such Securities shall be unaffected thereby. In
addition, upon the Company's exercise under paragraph (a) hereof of the option
applicable to this paragraph (c), subject to the satisfaction of the conditions
set forth in Section 8.2(d) below, those events described in Section 6.1 (except
those events described in 6.1 (a), (b), (k) and (l) shall no longer be
applicable.
(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Securities
(unless indicated otherwise below):
(i) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.10 who shall agree to comply with the
provisions of this Section 8.2 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) cash in United States dollars in an
amount, or (B) U.S. Government Obligations that through the scheduled
payment of principal of, premium, if any, and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of an Independent
Financial Adviser expressed in a written certification thereof
delivered to the Trustee, to pay and discharge and which shall be
applied by the Trustee (or other qualifying trustee) to pay and
discharge principal of, premium, if any, and interest on the
outstanding Securities (except lost, stolen or destroyed Securities
which have been replaced or paid) on the Maturity Date or the
applicable Redemption Date, as the case may be, of such principal or
installment of principal, premium, if any, or interest in accordance
with the terms of this Indenture and of such Securities; provided,
however, that the Trustee (or other qualifying trustee) shall have
received an irrevocable written order from the Company instructing the
Trustee (or other qualifying trustee) to apply such money or the
proceeds of such U.S. Government Obligations to said payments with
respect to the Securities;
(ii) no Default or Event of Default or event with respect to
the Securities shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 6.1(k) and (l) are concerned, at
any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(iii) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or any other material agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which it is bound;
(iv) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the
date of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the outstanding
Securities will not recognize income, gain or loss for Federal income
tax purposes as a result of such legal defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such legal defeasance had
not occurred;
(v) in the case of an election under paragraph (c) above, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the outstanding Securities will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred;
(vi) in the case of an election under either paragraph (b) or
(c) above, an Opinion of Counsel to the effect that, (x) the trust
funds will not be subject to any rights of any other holders of
Indebtedness of the Company, and (y) after the 91st day following the
deposit (or such longer period as may be provided in an applicable
state Bankruptcy Law), the trust funds will not be subject to the
effect of any applicable Bankruptcy Law; and
(vii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the legal
defeasance under paragraph (b) above or the covenant defeasance under
paragraph (c) above, as the case may be, have been complied with.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to paragraph (d) above or the principal, premium,
if any, and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of the outstanding
Securities.
(e) In the event of a legal defeasance or covenant defeasance,
all rights of the Trustee and the Holders in and to the Collateral under the
Security Documents shall be released, except those related to the deposit in
paragraph (d) above.
SECTION 8.3. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Sections 8.1 and 8.2, and shall apply
the deposited money and the money from U.S. Government Obligations in accordance
with this Indenture to the payment of principal of, premium, if any, and
interest on the Securities.
Anything in Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request,
in writing, by the Company any money or U.S. Government Obligations held by it
as provided in Section 8.2(d) above which, in the opinion of an Independent
Financial Adviser expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent legal defeasance or covenant defeasance.
SECTION 8.4. Repayment to Company or the Guarantors.
Subject to Sections 7.7, 8.1 and 8.2, the Trustee shall
promptly pay to the Company, or if deposited with the Trustee by any Guarantor,
to such Guarantor, upon receipt by the Trustee of an Officers' Certificate, any
excess money, determined in accordance with Sections 8.2(d)(i) and (e), held by
it at any time. The Trustee and the Paying Agent shall pay to the Company, or if
deposited with the Trustee by any Guarantor, to such Guarantor, upon receipt by
the Trustee or the Paying Agent, as the case may be, of an Officers'
Certificate, any money held by it for the payment of principal, premium, if any,
or interest that remains unclaimed for two years; provided, however, that the
Trustee and the Paying Agent before being required to make any payment may, but
need not, at the expense of the Company cause to be published once in a
newspaper of general circulation in The City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then remaining will
be repaid to the Company or a Guarantor. After payment to the Company or a
Guarantor, as the case may be, Securityholders entitled to money must look
solely to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person, and all liability of the
Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION 8.5. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with this Indenture by reason of any
legal proceeding or by reason of any order or judgment of any court or
Governmental Authority enjoining, restraining or otherwise prohibiting such
application, then and only then the Company's and each Guarantor's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had been made pursuant to this Indenture until such time as
the Trustee is permitted to apply all such money or U.S. Government Obligations
in accordance with this Indenture; provided, however, that if the Company or any
Guarantor, as the case may be, make or makes any payment of interest on,
premium, if any, or principal of any Securities because of the reinstatement of
their obligations, the Company or any Guarantor, as the case may be, shall be
subrogated to the rights of the holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Without Consent of Holders.
The Company and the Guarantors, when authorized by Board
Resolutions of their respective Boards of Directors, and the Trustee may amend,
waive or supplement (or, if applicable, authorize the Collateral Agent to amend,
waive or supplement) this Indenture, the Securities, the Guarantees and/or
Security Documents without notice to or consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(c) to comply with any requirements of the SEC under the TIA,
including the qualification of the Indenture under the TIA;
(d) to evidence the succession in accordance with Article V or
X hereof of another Person to the Company or a Guarantor, as the case
may be, and the assumption by any such successor of the covenants of
the Company or a Guarantor herein and in the Securities;
(e) to mortgage, pledge or grant a security interest in favor
of the Collateral Agent as additional security for the payment and
performance of its obligations under this Indenture, in any property or
assets, including any which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be
granted, to the Collateral Agent pursuant to any Security Document or
otherwise;
(f) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trust hereunder by more than one Trustee,
pursuant to the requirements of Section 7.12;
(g) to make any change that does not adversely affect the
rights of any Holder;
(h) to add or release any Guarantor strictly in accordance
with another provision of this Indenture expressly providing for such
addition or release; or
(i) to make any other amendment to the Security Documents
expressly permitted by the terms thereof so long as such amendment without the
consent of the Holders does not conflict with Section 9.2 hereof.
SECTION 9.2. With Consent of Holders.
Subject to Section 6.7, the Company, the Guarantors and the
Trustee and, if applicable, the Collateral Agent may amend or supplement this
Indenture, the Securities, the Guarantees and/or the Security Documents, without
notice to any other holders of Securities, with the written consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities then outstanding. Subject to Section 6.7, the Holders of, in the
aggregate, not less than a majority in aggregate principal amount of the
outstanding Securities affected may waive compliance by the Company and the
Guarantors with any provision of this Indenture, the Securities, the Guarantees
and/or the Security Documents, without notice to any other Securityholder;
provided, however, (1) without the consent of each Securityholder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.4, may
not:
(a) reduce the principal amount of, extend the fixed maturity
of or alter the optional redemption or repurchase provisions of the
Securities;
(b) change the currency in which any Securities or any premium
or the interest thereon is payable or make the principal of, premium,
if any, or interest on any Securities payable in a currency other than
that stated in the Securities;
(c) reduce the percentage in principal amount of outstanding
Securities that must consent to an amendment, supplement or waiver or
consent to take any action under this Indenture, any Guarantee, the
Securities or the Security Documents;
(d) impair the right to institute suit for the enforcement of
any payment on or with respect to the Securities or any Guarantee;
(e) waive a default in payment with respect to the Securities
or any Guarantee;
(f) following the occurrence of a Change of Control or the
execution of a definitive agreement with respect to a Change of
Control, amend, change or modify the obligations of the Company to make
and consummate a Change of Control Offer with respect to such Change of
Control or modify any of the provisions or definitions with respect
thereto;
(g) reduce or change the rate or time for payment of interest
on the Securities;
(h) modify or change any provision of this Indenture or the
Security Documents affecting the ranking of the Securities or any
Guarantee or the priority of the claims of the Holders in and to the
Collateral in any manner adverse to the Holders;
(i) release any Guarantor from any of its obligations under
its Guarantee or the Indenture other than in compliance with this
Indenture; or
(j) release any Liens created by the Escrow Agreement except
in accordance with the terms of the Escrow Agreement.
and (2) no such modification or amendment may, without the consent of the
Holders of a majority of the aggregate principal amount of outstanding
Securities, directly or indirectly release any Lien on the Collateral except in
compliance with the terms of the Security Documents.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
SECTION 9.3. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture, the
Security Documents or the Securities shall comply with the TIA as then in
effect.
SECTION 9.4. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of that Security or portion of that Security that evidences
the same debt as the consenting Holder's Security, even if notation of the
consent is not made on any Security. However, any such Holder or subsequent
Holder may revoke the consent as to his Security or portion of a Security,
provided that the consent was not by its terms an irrevocable consent. Any
permitted revocation shall be effective only if the Trustee receives the notice
of revocation before the date the amendment, supplement or waiver becomes
effective. Notwithstanding the above, nothing in this paragraph shall impair the
right of any Securityholder under ss. 316(b) of the TIA.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the second and third sentences of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment,
supplement or waiver or, provided that the consent was not by its terms an
irrevocable consent, to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. Such consent shall be
effective only for actions taken within 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (a) through (i) of Section 9.2; if it makes such a change, the
amendment, supplement or waiver shall bind every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder's
Security.
SECTION 9.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee shall (in accordance with the specific written direction
of the Company) request the Holder of the Security to deliver it to the Trustee.
The Trustee shall (in accordance with the specific written direction of the
Company) place an appropriate notation on the Security about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms. Failure to
make the appropriate notation or issue a new Security shall not affect the
validity and effect of such amendment, supplement or waiver.
SECTION 9.6. Trustee and Collateral Agent to Sign Amendments, Etc.
The Trustee and Collateral Agent shall sign any amendment,
supplement or waiver authorized pursuant to this Article IX if the amendment,
supplement or waiver does not adversely affect the rights, duties or immunities
of the Trustee or Collateral Agent, as applicable. If it does, the Trustee or
Collateral Agent, as applicable, may, but need not, sign it. In signing any
amendment, supplement or waiver, the Trustee and Collateral Agent shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article IX is authorized or permitted by this
Indenture. Neither the Company nor any Guarantor may sign an amendment until its
respective Board of Directors approves it. The Collateral Agent may sign any
amendment to the Security Documents without the consent or countersignature of
the Trustee if such amendment does not require the consent of the Holders
pursuant to the terms of the Security Documents and Section 9.2 hereof.
ARTICLE X
GUARANTEE
SECTION 10.1. Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and severally,
guarantees, to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, that: (i) the
principal of and interest on the Securities will be promptly paid in full when
due, subject to any applicable grace period, whether at maturity, by
acceleration or otherwise and interest on the overdue principal, if any, and
interest on any interest, to the extent lawful, of the Securities and all other
obligations of the Company to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in accordance with the terms
hereof and thereof; and (ii) in case of any extension of time of payment or
renewal of any Securities or of any such other obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, subject to any applicable grace period, whether at stated
maturity, by acceleration or otherwise, subject, however, in the case of clauses
(i) and (ii) above, to the limitations set forth in Section 10.4. Each Guarantor
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Securities,
this Indenture or the Security Documents, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Securities with respect to
any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenants that this Guarantee will not be discharged
except by complete performance of the obligations contained in the Securities,
this Indenture and in this Guarantee. If any Holder or the Trustee is required
by any court or otherwise to return to the Company, any Guarantor, or any
custodian, trustee, liquidator or other similar official acting in relation to
the Company or any Guarantor, any amount paid by the Company or any Guarantor to
the Trustee or such Holder, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor further
agrees that, as between each Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, to the extent permitted by applicable law, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article VI for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article VI, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Guarantor for the
purpose of this Guarantee.
SECTION 10.2. Severability.
In case any provision of this Guarantee shall be invalid,
illegal or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.3. Release of a Guarantor.
Concurrently with any sale or disposition of any Guarantor by
merger, sale of all or substantially all of its assets, liquidation or otherwise
that is in compliance with the terms of this Indenture (other than a transaction
subject to the provisions described under Section 5.1) and the release of such
Guarantor's guarantee under the New Credit Facility, such Guarantor and each
Subsidiary of such Guarantor that is also a Guarantor will automatically and
unconditionally be released from all obligations under its Guarantee and any
Collateral relating thereto, and Liens of this Indenture and the Security
Documents thereon, shall concurrently be automatically and unconditionally
released. In addition, subject to the foregoing conditions, any Guarantor and
each Subsidiary of such Guarantor that is also a Guarantor will automatically
and unconditionally be released from all obligations under its Guarantee and any
Collateral relating thereto, and Liens of this Indenture and the Security
Documents thereon, shall concurrently be automatically and unconditionally
released, unless the Company otherwise elects, if such Guarantor is designated
as an Unrestricted Subsidiary in compliance with the terms of this Indenture and
all other guarantees of such Guarantor of Indebtedness of the Company and the
Restricted Subsidiaries are released in connection therewith. A sale of assets
or Capital Stock of a Guarantor may constitute an Asset Sale subject to Section
4.13.
The Trustee and Collateral Agent shall execute and deliver an
appropriate instrument evidencing such release upon receipt of a request by the
Company accompanied by an Officers' Certificate and Opinion of Counsel
certifying as to the compliance with this Section 10.3. Any Guarantor not so
released remains liable for the full amount of principal of and interest on the
Securities as provided in this Article X.
SECTION 10.4. Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof each Holder hereby
confirms that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar Federal, state or
foreign law. To effectuate the foregoing intention, the Holders and such
Guarantor hereby irrevocably agree that the obligations of such Guarantor under
the Guarantee shall be 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 Section 10.6, result in the obligations of such
Guarantor under the Guarantee not constituting such fraudulent transfer or
conveyance.
SECTION 10.5. Guarantors May Consolidate, etc., on Certain
Terms.
(a) Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of a Guarantor with or into
the Company or another Guarantor or shall prevent any sale of assets or
conveyance of the property of a Guarantor, as an entirety or substantially as an
entirety, to the Company or another Guarantor. Upon any such consolidation,
merger, sale or conveyance, the Guarantee given by such Guarantor shall no
longer have any force or effect.
(b) Except in the case in which a Guarantor's Guarantee is
subject to release as provided under Section 10.3, each Guarantor will not, and
the Company will not cause or permit any Guarantor to, consolidate with or merge
with or into any Person other than the Company or any other Guarantor unless:
(i) the entity formed by or surviving any such consolidation or merger (if other
than the Guarantor) or to which such sale, lease, conveyance or other
disposition shall have been made is a corporation or other business entity
organized and existing under the laws of the United States or any State thereof
or the District of Columbia; (ii) such entity assumes by supplemental indenture
all of the obligations of the Guarantor on the Guarantee; and (iii) immediately
after giving effect to such transaction, no Default or Event of Default shall
have occurred and be continuing. Any merger or consolidation of a Guarantor with
and into the Company (with the Company being the surviving entity) or another
Guarantor need only comply with clauses (b) and (e) of the first paragraph of
Section 5.1.
SECTION 10.6. Contribution.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under the
Guarantee, such Funding Guarantor shall be entitled to a contribution from all
other Guarantors in a pro rata amount based on the Adjusted Net Assets of each
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to the Guarantee. "Adjusted Net Assets" of such Guarantor at any
date shall mean the lesser of the amount by which (x) the fair value of the
property 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 at such date and
(y) the present fair saleable value of the assets of such Guarantor at such date
exceeds the amount that will be required to pay the probable liability of such
Guarantor on its debts (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of the obligations
of such Subsidiary under the Guarantee), excluding debt in respect of the
Guarantee of such Guarantor, as they become absolute and matured. No Funding
Guarantor shall be entitled to receive any payment until all amounts due the
Trustee and the Holders have been paid in full.
SECTION 10.7. Waiver of Subrogation.
Until all obligations under this Indenture and the Securities
are discharged and are paid in full, each Guarantor hereby irrevocably waives
any claim or other rights which it may now or hereafter acquire against the
Company that arise from the existence, payment, performance or enforcement of
such Guarantor's obligations under the Guarantees and this Indenture, including,
without limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Guarantor in violation of the preceding sentence and the
Securities shall not have been paid in full, such amount shall have been deemed
to have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders of the Securities, and shall forthwith be paid to
the Trustee for the benefit of such Holders to be credited and applied upon the
Securities, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 10.7 is knowingly made in contemplation of
such benefits.
SECTION 10.8. Execution of Guarantee.
Each Guarantor hereby agrees that its Guarantee set forth in
this Article X shall remain in full force and effect notwithstanding the fact
that no Guarantee is endorsed on the Securities.
SECTION 10.9. Waiver of Stay, Extension or Usury Laws.
Each Guarantor covenants (to the extent permitted by law) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive such Guarantor from performing its
Guarantee as contemplated herein, wherever enacted, now or at any time hereafter
in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent permitted by law) each such Guarantor hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE XI
SECURITY DOCUMENTS
SECTION 11.1. Collateral and Security Documents.
(a) In order to secure the due and punctual payment of the
Securities, the Pledgors have entered into the respective Security Documents to
which they are party to create the Security Interests and for related matters
and pursuant to which the Company has granted to the Collateral Agent for the
benefit of the Holders a second priority Lien on and security interest in the
Collateral, subject only to the Lien granted for the benefit of the lenders
under the New Credit Facility and other Liens expressly permitted under the
terms of the Security Documents. The Trustee, the Collateral Agent, the Company
and the Guarantors hereby agree that the Collateral Agent holds the Collateral
in trust for the benefit of the Holders pursuant to the terms of this Indenture
and the Security Documents. Subject only to the provisions of the Security
Documents and this Indenture, the Securities and the Guarantees shall be secured
by the Collateral securing the New Credit Facility.
(b) Each holder of a Security, by accepting a Security, agrees
to all of the terms and provisions of the Security Documents, as the same may be
amended from time to time pursuant to the provisions of the Security Documents
and this Indenture. Notwithstanding anything to the contrary contained herein,
if any provision of this Article XI hereof conflicts with a provision contained
in the Security Documents, the Security Documents shall govern unless the terms
of such conflicting Security Document expressly provides that the terms of the
Indenture shall govern.
SECTION 11.02. Renewal and Refunding.
Nothing in this Article XI shall prevent (a) the renewal or
extension, without impairment of the Security Interests, at the same or at a
lower or higher rate of interest, of any of the obligations or Indebtedness of
any Person included in the Collateral or (b) the issue in substitution for any
such obligations or Indebtedness of other obligations or Indebtedness of such
Person for equivalent amounts and of substantially equal or superior rank as to
security, if any; provided, however, that every such obligation or Indebtedness
as so renewed or extended shall continue to be subject to the Lien of the
Security Documents and every substituted obligation of Indebtedness and the
evidence thereof shall be deposited and pledged with the Collateral Agent.
SECTION 11.03. Release upon Termination of the Company's
Obligations.
In the event that the Company delivers an Officers'
Certificate certifying that its obligations under this Indenture have been
satisfied and discharged by complying with the provisions of Article VIII, the
Collateral Agent and the Trustee shall (i) execute and deliver such releases,
termination statements and other instruments (in recordable form, where
appropriate) as the Company or any other Pledgor, as applicable, may reasonably
request evidencing the termination of the Security Interests created by the
Security Documents and (ii) not be deemed to hold the Security Interests for the
benefit of the Trustee and the holders of the Securities.
SECTION 11.04. Escrow Collateral.
Notwithstanding anything to the contrary contained in this
Article XI, on the Issue Date, the Company shall deposit, and at all times,
subject to the Escrow Agreement, grant to the Trustee as security for the
benefit of the Holders, security interests in the Escrow Collateral. The Escrow
Collateral must be in such amount together with the proceeds from the investment
thereof, to be sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to provide for payment
in full of the first three scheduled interest payments (but not any liquidated
damages) due on the outstanding Securities. Security interests in the Escrow
Collateral shall be pledged by the Company to the Trustee for the benefit of the
Holders pursuant to the Escrow Agreement and shall be held by the Trustee in the
Escrow Account pending disposition pursuant to the Escrow Agreement. The Liens
created by the Escrow Agreement shall be first priority security interests in
the Escrow Collateral.
ARTICLE XII
[INTENTIONALLY OMITTED]
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 13.2. Notices.
Any notice or communication shall be sufficiently given if in
writing and delivered in Person or mailed by first-class mail addressed as
follows:
(a) if to the Company or the Guarantors:
c/o HVIDE MARINE INCORPORATED
2200 Eller Drive
P.O. Box 13038
Port Everglades Station
Fort Lauderdale, FL 33316
Attention: Robert B. Lamm
(b) if to the Trustee:
State Street Bank and Trust Company of Connecticut, N.A.
225 Asylum Street, 23rd Floor
Goodwin Square
Hartford, CT 06103
Attention: Corporate Trust Administration
(c) if to the Collateral Agent:
Bankers Trust Company
130 Liberty Street
New York, NY 10006
Attention: Jeff Ogden
Each of the Company, the Guarantors, the Trustee and the
Collateral Agent by notice to the other may designate additional or different
addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder,
including any notice delivered in connection with TIA ss. 310(b), TIA ss.
313(c), TIA ss. 314(a) and TIA ss. 315(b), shall be mailed to him, first-class
postage prepaid, at his address as it appears on the registration books of the
Registrar and shall be sufficiently given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee or the Collateral Agent,
which is deemed given only when received, if a notice or communication is mailed
in the manner provided above, it is duly given, whether or not the addressee
receives it.
SECTION 13.3. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Guarantors, the Trustee, the Registrar, the
Collateral Agent and any other Person shall have the protection of TIA ss.
312(c).
SECTION 13.4. Certificate and Opinion of Counsel as to
Conditions Precedent.
Upon any request or application by the Company to the Trustee
or the Collateral Agent to take any action under this Indenture, the Company
shall furnish to the Trustee or the Collateral Agent, as applicable, at the
request of the Trustee or the Collateral Agent, as applicable, (a) an Officers'
Certificate in form and substance satisfactory to the Trustee stating that, in
the opinion of the signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with, (b) an
Opinion of Counsel in form and substance satisfactory to the Trustee or the
Collateral Agent, as applicable, stating that, in the opinion of counsel, all
such conditions have been complied with and (c) where applicable, a certificate
or opinion by an independent certified public accountant satisfactory to the
Trustee or the Collateral Agent, as applicable, that complies with TIA ss.
314(c).
SECTION 13.5. Statements Required in Certificate and
Opinion of Counsel.
Each certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that the Person making such certificate has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate are based; and
(c) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar,
Collateral Agent.
The Trustee may make reasonable rules in accordance with the
Trustee's customary practices for action by or at a meeting of Securityholders.
The Paying Agent, Collateral Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.7. Legal Holidays.
If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 13.8. Governing Law.
The internal laws of the State of New York shall govern this
Indenture, the Securities and the Guarantee.
SECTION 13.9. No Recourse Against Others.
A trustee, director, officer, employee, stockholder or
beneficiary, as such, of the Company or the Guarantors shall not have any
liability for any obligations of the Company or the Guarantors under the
Securities or this Indenture or the Guarantees or for any claim based on, in
respect of or by reason of such obligations or their creation. Each
Securityholder by accepting a Security waives and releases all such liability.
SECTION 13.10. Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Securities and the Guarantees shall bind their respective
successors. All agreements of the Trustee and the Collateral Agent in this
Indenture shall bind its successor.
SECTION 13.11. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 13.12. Severability.
In case any provision in this Indenture or in the Securities
or the Guarantees shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
SECTION 13.13. Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, and are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the date first written above.
HVIDE MARINE INCORPORATED,
as Issuer
By:
Name:
Title:
<PAGE>
HMI OPERATORS, INC.
HVIDE MARINE INTERNATIONAL, INC.
HVIDE MARINE TOWING, INC.
HVIDE MARINE TOWING SERVICES, INC.
HVIDE MARINE TRANSPORT,
INCORPORATED
LONE STAR MARINE SERVICES, INC.
OFFSHORE MARINE MANAGEMENT
INTERNATIONAL, INC.
SEABULK ALBANY, INC.
SEABULK ALKATAR, INC.
SEABULK ARABIAN, INC.
SEABULK ARCTIC EXPRESS, INC.
SEABULK ARIES II, INC.
SEABULK ARZANAH, INC.
SEABULK BARRACUDA, INC.
SEABULK BATON ROUGE, INC.
SEABULK BECKY, INC.
SEABULK BETSY, INC.
SEABULK BUL HANIN, INC.
SEABULK CAPRICORN, INC.
SEABULK CARDINAL, INC.
SEABULK CAROL, INC.
SEABULK CAROLYN, INC.
SEABULK CHAMP, INC.
SEABULK CHRISTOPHER, INC.
SEABULK CLAIBORNE, 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, INC.
SEABULK EAGLE II, INC.
SEABULK EMERALD, INC.
SEABULK ENERGY, INC.
SEABULK EXPLORER, INC.
SEABULK FALCON, INC.
SEABULK FALCON II, 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 HAWAII, INC.
SEABULK HAWK, INC.
SEABULK HERCULES, INC.
SEABULK HERON, INC.
SEABULK HORIZON, INC.
SEABULK HOUBARE, INC.
SEABULK IBEX, INC.
SEABULK ISABEL, INC.
SEABULK JASPER, INC.
SEABULK JEBEL ALI, INC.
SEABULK KATIE, INC.
SEABULK KESTREL, INC.
SEABULK KING, INC.
SEABULK KNIGHT, INC.
SEABULK LAKE EXPRESS, INC.
SEABULK LARA, INC.
SEABULK LARK, INC.
SEABULK LIBERTY, INC.
SEABULK LINCOLN, 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 NEPTUNE, INC.
SEABULK OCEAN SYSTEMS
CORPORATION
SEABULK OCEAN SYSTEMS HOLDINGS
CORPORATION
SEABULK OFFSHORE, LTD.
By its general partner Seabulk Tankers, Ltd.
By its general partner Hvide Marine Transport,
Incorporated
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 OFFSHORE OPERATORS
TRINIDAD LIMITED
SEABULK OREGON, 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 SABINE, 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 SUHAIL, INC.
SEABULK SWAN, INC.
SEABULK SWIFT, INC.
SEABULK TANKERS, LTD.
By its general partner Hvide Marine
Transport, Incorporated
SEABULK TAURUS, INC.
SEABULK TENDER, INC.
SEABULK TIMS I, INC.
SEABULK TITAN, INC.
SEABULK TOOTA, INC.
SEABULK TOUCAN, INC.
SEABULK TRADER, INC.
SEABULK TRANSMARINE II, INC.
SEABULK TREASURE ISLAND, INC.
SEABULK UMM SHAIF, INC.
SEABULK VERITAS, INC.
SEABULK VIRGO I, INC.
SEABULK VOYAGER, INC.
SEABULK ZAKUM, INC.,
each as a Guarantor
By:
Name: John H. Blankley
Title: Executive Vice President,
Chief Financial Officer and Treasurer
HMI CAYMAN HOLDINGS, INC.
SEABULK OFFSHORE OPERATORS
NIGERIA LIMITED
SEABULK OFFSHORE U.K. LIMITED
SEABULK RED TERN LIMITED,
each as a Guarantor
By:
Name: John H. Blankley
Title: Director
HVIDE MARINE DE VENEZUELA, S.R.L.,
as a Guarantor
By:
Name: John H. Blankley
Title: Executive Vice President and
Chief Financial Officer
LIGHTSHIP LIMITED PARTNER
HOLDINGS, LLC, as a Guarantor
By:
Name: John H. Blankley
Title: Vice President and Treasurer
SEAMARK LTD., INC.
SUN STATE MARINE SERVICES, INC.
OCEAN SPECIALTY TANKERS
CORPORATION,
each as a Guarantor
By:
Name: John H. Blankley
Title: Attorney-in-Fact
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MARANTA, S.A.,
as a Guarantor
By:
Name: Orlando Luzi
Title: President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
Name:
Title:
BANKERS TRUST COMPANY,
as Collateral Agent
By:
Name:
Title:
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CLASS A WARRANT AGREEMENT
Dated as of __________________, 1999
by and between
HVIDE MARINE INCORPORATED
and
[WARRANT AGENT]
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WARRANT AGREEMENT dated as of _________________, 1999 (the
"Agreement") between Hvide Marine Incorporated, a Delaware corporation (the
"Company"), and _________________, as warrant agent (the "Warrant Agent").
WHEREAS, the Company proposes to issue Class A Common Stock
Purchase Warrants, as hereinafter described (the "Warrants"), to purchase up to
an aggregate of 250,000 shares of Common Stock (as defined below) in connection
with the Plan of Reorganization of the Company under Chapter 11 of the
Bankruptcy Code (the "Plan"), each Warrant entitling the holder thereof to
purchase one share of Common Stock.
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing so to act, in connection
with the issuance of Warrant Certificates (as defined below) and other matters
as provided herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, and for the purpose of defining the
respective rights and obligations of the Company, the Warrant Agent and the
Holders (as defined below), the parties hereto agree as follows:
SECTION 1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Affiliate" of any person means any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such person. For purposes of this definition, "control" when used
with respect to any person means the power to direct the management and policies
of such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the common stock, par value $.01 per
share, of the Company, and any other capital stock of the Company into which
such common stock may be converted or reclassified or that may be issued in
respect of, in exchange for, or in substitution for, such common stock by reason
of any stock splits, stock dividends, distributions, mergers, consolidations or
other like events.
"Company" means Hvide Marine Incorporated, a Delaware
corporation, and its successors and assigns.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exercisability Date" means the Effective Date of the Plan.
"Exercise Price" means the purchase price per share of Common
Stock to be paid upon the exercise of each Warrant in accordance with the terms
hereof, which price shall initially be $38.49 per share, subject to adjustment
pursuant to Section 12 hereof.
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"Expiration Date" means the date that is four years following
the Exercisability Date.
"Holder" means a registered holder of Warrants.
"person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Plan" means the Debtors First Amended Joint Plan of
Reorganization dated November 1, 1999 filed by Hvide Marine Incorporated, a
Florida corporation, and its affiliate and subsidiary debtors.
"Securities Act" means the Securities Act of 1933, as amended.
"Warrant Agent" means ____________________ or the successor or
successors of such Warrant Agent appointed in accordance with the terms hereof.
"Warrant Shares" means the shares of Common Stock issued or
issuable upon the exercise of the Warrants.
SECTION 2. Appointment of Warrant Agent. The Company hereby
appoints the Warrant Agent to act as agent for the Company in accordance with
the instructions set forth in this Agreement, and the Warrant Agent hereby
accepts such appointment.
SECTION 3. Issuance of Warrants: Warrant Certificates. The
Warrants will be issued in the form of one or more global certificates (Each a
"Global Warrant" and collectively the "Global Warrants"), substantially in the
form of Exhibit A attached hereto (including footnote 1 thereto). The Global
Warrants shall be deposited on the date of issuance (which shall be the
Effective Date of the Plan, as that term is defined therein, or as soon as
practicable thereafter) with, or on behalf of, The Depository Trust Company (the
"Depositary") and registered in the name of Cede & Co., as the Depositary's
nominee. Each Global Warrant shall represent such of the outstanding Warrants as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Warrants from time to time endorsed thereon and
that the aggregate amount of outstanding Warrants represented thereby may from
time to time be reduced or increased, as appropriate. Upon request, a Holder may
receive from the Depositary and the Warrant Agent Warrants in definitive form
(each a "Definitive Warrant" and collectively the "Definitive Warrants"),
substantially in the form of Exhibit A attached hereto (not including footnote 1
thereto) as set forth in Section 6 below. Any certificates (each a "Warrant
Certificate" and collectively the "Warrant Certificates") evidencing the Global
Warrants or the Definitive Warrants to be delivered pursuant to this Agreement
shall be substantially in the form set forth in Exhibit A attached hereto.
SECTION 4. Execution of Warrant Certificates. Warrant
Certificates shall be signed on behalf of the Company by its Chairman of the
Board or its President or a Vice President and by its Secretary or an Assistant
Secretary under its corporate seal. Each such signature upon the Warrant
Certificates may be in the form of a facsimile signature of the present or any
future Chairman of the Board, President, Vice President, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the
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facsimile signature of any person who shall have been Chairman of the Board,
President, Vice President, Secretary or Assistant Secretary, notwithstanding the
fact that at the time the Warrant Certificates shall be countersigned and
delivered or disposed of such person shall have ceased to hold such office. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
Warrant Certificates shall be dated the date of
countersignature.
SECTION 5. Registration and Countersignature. The Warrant
Agent, on behalf of the Company, shall number and register the Warrant
Certificates in a register as they are issued by the Company.
Warrant Certificates shall be manually countersigned by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Warrant Agent shall, upon written instructions of the Chairman of the Board,
the President, a Vice President, the Treasurer or the Controller of the Company,
initially countersign, issue and deliver Warrant Certificates representing
Warrants entitling the Holders thereof to purchase not more than the number of
Warrant Shares referred to above in the first recital hereof and shall
countersign and deliver Warrant Certificates as otherwise provided in this
Agreement.
The Company and the Warrant Agent may deem and treat the
Holder(s) of the Warrant Certificates as the absolute owner(s) thereof
(notwithstanding any notation of ownership or other writing thereon made by
anyone), for all purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary.
SECTION 6. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Global Warrants. The transfer and
exchange of Global Warrants or beneficial interests therein shall be effected
through the Depositary, in accordance with this Warrant Agreement and the
procedures of the Depositary therefor.
(b) Exchange of a Beneficial Interest in a Global Warrant for
a Definitive Warrant.
(i) Any person having a beneficial interest in a Global
Warrant may upon request exchange such beneficial interest for a Warrant
Certificate. Upon receipt by the Warrant Agent of written instructions or such
other form of instructions as is customary for the Depositary from the
Depositary or its nominee on behalf of any person having a beneficial interest
in a Global Warrant, the Warrant Agent shall cause, in accordance with the
standing instructions and procedures existing between the Depositary and Warrant
Agent, the number of Warrants represented by the Global Warrant to be reduced by
the number of Warrants to be represented by the Warrant Certificates to be
issued in exchange for the interest in the Global Warrant and, following such
reduction, the Company shall execute and the Warrant Agent shall countersign and
deliver to the transferee, as the case may be, a Warrant Certificate.
(ii) Warrant Certificates issued in exchange for a beneficial
interest in a Global Warrant pursuant to this Section 6(b) shall be registered
in such names as the Depositary,
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pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Warrant Agent. The Warrant Agent shall deliver such Warrant
Certificates to the persons in whose names such Warrants are so registered.
(c) Transfer and Exchange of Definitive Warrants. When
Definitive Warrants are presented to the Warrant Agent with a request:
(i) to register the transfer of such Definitive Warrants; or
(ii) to exchange such Definitive Warrants for an equal number of
Definitive Warrants of other authorized denominations,
the Warrant Agent shall register the transfer or make the exchange as requested
if its requirements for such transactions are met; provided, however, that the
Definitive Warrants presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Warrant Agent, duly executed by the Holder
thereof or by his attorney, duly authorized in writing.
(d) Exchange or Transfer of a Definitive Warrant for a
Beneficial Interest in a Global Warrant. Upon receipt by the Warrant Agent of a
Definitive Warrant, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Warrant Agent, together with written
instructions directing the Warrant Agent to make, or to direct the Depositary to
make, an endorsement on the Global Warrant to reflect an increase in the number
of Warrants represented by the Global Warrant, the Warrant Agent shall cancel
such Definitive Warrant and cause, or direct the Depositary to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Warrant Agent, the number of Warrants represented by the
Global Warrant to be increased accordingly. If no Global Warrants are then
outstanding, the Company shall issue and the Warrant Agent shall countersign a
new Global Warrant representing the appropriate number of Warrants.
(e) Restrictions on Transfer and Exchange of Global Warrants.
Notwithstanding any other provisions of this Warrant Agreement (other than the
provisions set forth in subsection (f) of this Section 6), a Global Warrant may
not be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) Countersigning of Definitive Warrants in Absence of
Depositary. If at any time:
(i) the Depositary for the Global Warrants notifies the Company
that the Depositary is unwilling or unable to continue as
Depositary for the Global Warrants and a successor Depositary
for the Global Warrants is not appointed by the Company within
90 days after delivery of such notice; or
(ii) The Company, in its sole discretion, notifies the Warrant
Agent in writing that it elects to cause the issuance of
Definitive Warrants under this Warrant Agreement,
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then the Company shall execute, and the Warrant Agent, upon written instructions
signed by two officers of the Company, shall countersign and deliver Definitive
Warrants, in an aggregate number equal to the number of Warrants represented by
Global Warrants, in exchange for such Global Warrants.
(g) Cancellation of Global Warrant. At such time as all
beneficial interests in Global Warrants have either been exchanged for
Definitive Warrants or canceled, all Global Warrants shall be returned to or
retained and canceled by the Warrant Agent.
(h) Obligations with respect to Transfers and Exchanges of
Warrants.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Warrant Agent is hereby
authorized to countersign, in accordance with the provisions
of Section 5 and this Section 6, Definitive Warrants and
Global Warrants as required pursuant to the provisions of this
Section 6.
(ii) All Definitive Warrants and Global Warrants issued upon any
registration of transfer or exchange of Definitive Warrants or
Global Warrants shall be the valid obligations of the Company,
entitled to the same benefits under this Warrant Agreement, as
the Definitive Warrants or Global Warrants surrendered upon
such registration of transfer or exchange.
(iii) Prior to due presentment for registration of transfer of any
Warrant, the Warrant Agent and the Company may deem and treat
the person in whose name any Warrant is registered as the
absolute owner of such Warrant and neither the Warrant Agent,
nor the Company shall be affected by notice to the contrary.
SECTION 7. Terms of Warrants: Exercise of Warrants. Subject to
the terms of this Agreement, each Holder shall have the right, which may be
exercised commencing at the opening of business on the Exercisability Date and
until 5:00 p.m., New York City time, on the Expiration Date to receive from the
Company the number of fully paid and nonassessable Warrant Shares which the
Holder may at the time be entitled to receive on exercise of such Warrants and
payment of the Exercise Price then in effect for such Warrant Shares.
A Warrant may be exercised upon surrender to the Company at
the principal office of the Warrant Agent of the certificate or certificates
evidencing the Warrant to be exercised with the form of election to purchase on
the reverse thereof duly filled in and signed, which signature shall be
guaranteed by a bank or trust company having an office or correspondent in the
United States or a broker or dealer which is a member of a registered securities
exchange or the National Association of Securities Dealers, Inc., and upon
payment to the Warrant Agent for the account of the Company of the Exercise
Price as adjusted as herein provided, for each of the Warrant Shares in respect
of which such Warrant is then exercised. Payment of the aggregate Exercise Price
shall be made in cash or by certified or official bank check, payable to the
order of the Company. The exercise of Warrants by Holders of beneficial interest
in Global Warrants shall be effected in accordance with this Agreement and the
procedures of the Depositary therefor.
Subject to the provisions of Section 8 hereof, upon surrender
of Warrants and payment of the Exercise Price as provided above, the Warrant
Agent shall thereupon promptly notify the
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Company, and the Company shall promptly transfer to the Holder of such Warrant
Certificate a certificate or certificates for the appropriate number of Warrant
Shares to which the Holder is entitled, registered or otherwise placed in, or
payable to the order of, such name or names as may be directed in writing by the
Holder, and shall deliver such certificate or certificates representing the
Warrant Shares and any cash in lieu of any fraction of a share as provided in
Section 14 to the person or persons entitled to receive the same. Any such
certificate or certificates representing the Warrant Shares shall be deemed to
have been issued and any person so designated to be named therein shall be
deemed to have become a Holder of record of such Warrant Shares as of the date
of the surrender of such Warrants and payment of the Exercise Price.
The Warrants shall be exercisable commencing on the
Exercisability Date, at the election of the Holders thereof, either in full or
from time to time in part and, in the event that a certificate evidencing
Warrants is exercised in respect of fewer than all of the Warrant Shares
issuable on such exercise at any time prior to the date of expiration of the
Warrants, a new certificate evidencing the remaining Warrant or Warrants will be
issued, and the Warrant Agent is hereby irrevocably authorized to countersign
and to deliver the required new Warrant Certificate or Certificates pursuant to
the provisions of this Section and of Section 4 hereof, and the Company,
whenever required by the Warrant Agent, will supply the Warrant Agent with
Warrant Certificates duly executed on behalf of the Company for such purpose.
All Warrant Certificates surrendered upon exercise of Warrants
shall be canceled by the Warrant Agent. Such canceled Warrant Certificates shall
then be disposed of by the Warrant Agent in a manner satisfactory to the
Company. The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay to the Company all monies received by
the Warrant Agent for the purchase of Warrant Shares through the exercise of
such Warrants.
The Warrant Agent shall keep copies of this Agreement and any
notices given or received hereunder by or from the Company available for
inspection by the Holders during normal business hours at its office. The
Company shall supply the Warrant Agent from time to time with such numbers of
copies of this Agreement as the Warrant Agent may request.
SECTION 8. Payment of Taxes. The Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrant Shares
upon the exercise of Warrants; provided, however, that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Warrant Certificates or any certificates for
Warrant Shares in a name other than that of the Holder of a Warrant Certificate
surrendered for registration or transfer or upon the exercise of a Warrant, and
the Company shall not be required to issue or deliver such Warrant Certificates
or certificates for Warrant Shares unless or until the person or persons
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid.
SECTION 9. Mutilated or Missing Warrant Certificates. In case
any Warrant Certificate shall be mutilated, lost, stolen or destroyed, the
Company may in its discretion issue and the Warrant Agent may countersign, in
exchange and substitution for and upon cancellation of the mutilated Warrant
Certificate, or in lieu of and substitution for the Warrant Certificate lost,
stolen or destroyed, a new Warrant Certificate of like tenor and representing an
equivalent number of Warrants, but only upon receipt of evidence reasonably
satisfactory to the Company and the Warrant Agent of such loss, theft or
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destruction of such Warrant Certificate and indemnity, if requested, also
reasonably satisfactory to them. Applicants for such substitute Warrant
Certificates shall also comply with such other reasonable regulations and pay
such other reasonable charges as the Company or the Warrant Agent may prescribe.
SECTION 10. Reservation of Warrant Shares. The Company will at
all times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Stock or its authorized and
issued Common Stock held in its treasury, for the purpose of enabling it to
satisfy any obligation to issue Warrant Shares upon exercise of Warrants, the
maximum number of shares of Common Stock which may then be deliverable upon the
exercise of all outstanding Warrants.
The transfer agent for the Common Stock (the "Transfer Agent")
and every subsequent transfer agent for any shares of the Company's capital
stock issuable upon the exercise of any of the Warrants will be irrevocably
authorized and directed at all times to reserve such number of authorized shares
as shall be required for such purpose. The Company will keep a copy of this
Agreement on file with the Transfer Agent and with every subsequent transfer
agent for any shares of the Company's capital stock issuable upon the exercise
of the Warrants. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such Transfer Agent the stock certificates
required to honor outstanding Warrants upon exercise thereof in accordance with
the terms of this Agreement. The Company will supply such Transfer Agent with
duly executed certificates for such purpose and will provide or otherwise make
available any cash which may be payable as provided in Section 14. The Company
will furnish such Transfer Agent copies of all notices of adjustment transmitted
to each Holder of the Warrants pursuant to Section 15 hereof. The Warrant Agent
hereby agrees that it will not issue any stock certificates delivered hereunder
other than upon the exercise of Warrants in accordance with the terms of this
Agreement and, promptly after the issuance of any such stock certificates, to
notify the Transfer Agent of such issuance.
Before taking any action which would cause an adjustment
pursuant to Section 12 hereof that would reduce the Exercise Price below the
then par value (if any) of the Warrant Shares, the Company will take any
corporate action which may, in the opinion of its counsel (which may be counsel
for or employed by the Company), be necessary in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares at the
Exercise Price as so adjusted.
The Company covenants that all Warrant Shares which may be
issued upon exercise of Warrants in accordance with the terms of this Agreement
(including the payment of the Exercise Price) will, upon issue, be duly and
validly issued, fully paid, nonassessable, free of preemptive rights and free
from all taxes, liens, charges and security interests with respect to the issue
thereof.
SECTION 11. Obtaining Stock Exchange Listings. The Company
will from time to time take all action which may be necessary so that the
Warrant Shares, immediately upon their issuance upon the exercise of Warrants,
will be listed on the principal securities exchanges and markets (including,
without limitation, the NASDAQ National Market) within the United States of
America, if any, on which other shares of Common Stock are then listed. Upon the
listing of such Warrant Shares, the Company shall notify the Warrant Agent in
writing. The Company will obtain and keep all required permits and records in
connection with such listing. Until the Warrant Shares have been listed, the
Company may suspend the exercisability of the Warrants.
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SECTION 12. Adjustment of Exercise Price and Number of Warrant
Shares Issuable. The number and kind of shares purchasable upon the exercise of
Warrants and the Exercise Price shall be subject to adjustment from time to time
as follows:
(a) Stock Splits, Combinations, etc. In case the Company shall
hereafter (A) subdivide its outstanding shares of Common Stock, (B) combine its
outstanding shares of Common Stock into a smaller number of shares, or (C) issue
by reclassification of its shares of Common Stock any shares of capital stock of
the Company, the Exercise Price in effect and the number of Warrant Shares
issuable upon exercise of each Warrant immediately prior to such action shall be
adjusted so that the Holder of any Warrant thereafter exercised shall be
entitled to receive the number of shares of capital stock of the Company which
such Holder would have owned immediately following such action had such Warrant
been exercised immediately prior thereto. An adjustment made pursuant to this
paragraph shall become effective immediately after the record date in the case
of a dividend and shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification. If, as a result of
an adjustment made pursuant to this paragraph, the Holder of any Warrant
thereafter exercised shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors of the Company
(whose determination shall be conclusive) shall determine the allocation of the
adjusted Exercise Price between or among shares of such classes of capital
stock.
(b) Reclassification, Combinations, Mergers, etc. In case of
any reclassification or change of outstanding shares of Common Stock issuable
upon exercise of the Warrants (other than as set forth in paragraph (a) above
and other than a change in par value, or from par value to no par value, or from
no par value to par value or as a result of a subdivision or combination), or in
case of any consolidation or merger of the Company with or into another
corporation (other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification or change of the
then outstanding shares of Common Stock or other capital stock issuable upon
exercise of the Warrants) or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, then, as a condition of such reclassification, change, consolidation,
merger, sale or conveyance, the Company or such a successor or purchasing
corporation, as the case may be, shall forthwith make lawful and adequate
provision whereby the Holder of each Warrant then outstanding shall have the
right thereafter to receive on exercise of such Warrant the kind and amount of
shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a Holder
of the number of shares of Common Stock issuable upon exercise of such Warrant
immediately prior to such reclassification, change, consolidation, merger, sale
or conveyance.
(c) No De Minimis Adjustments. No adjustment in the conversion
price need be made unless the adjustment would require an increase or decrease
of at least 1% of the conversion price. Any adjustments that are not made shall
be carried forward and taken into account in any subsequent adjustment.
(d) No Adjustment for Dividends. Except as provided in this
Section 12, no adjustment in respect of any dividends or other payments or
distributions made to holders of securities issuable upon exercise of Warrants
shall be made during the term of a Warrant or upon the exercise of a Warrant.
SECTION 13. Statement on Warrants. Irrespective of any
adjustment in the number or kind of shares issuable upon the exercise of the
Warrants or the Exercise Price, Warrants theretofore or
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thereafter issued may continue to express the same number and kind of shares as
are stated in the Warrants initially issuable pursuant to this Agreement.
SECTION 14. Fractional Interest. (a) The Company shall not be
required to, but may, at its option, issue fractional shares of Common Stock on
the exercise of Warrants. If any fraction of a share of Common Stock would,
except for the provisions of this Section, be issuable on the exercise of any
Warrant, the Company shall direct the Transfer Agent to pay an amount in cash
calculated by it to equal the then current market price per share multiplied by
such fraction computed to the nearest whole cent. If more than one Warrant shall
be presented for exercise in full at the same time by the same Holder, the
number of full shares of Common Stock which shall be issuable upon such exercise
shall be computed on the basis of the aggregate number of shares of Common Stock
acquirable on exercise of the Warrants so presented. The Holders, by their
acceptance of the Warrant Certificates, expressly waive any and all rights to
receive any fraction of a share of Common Stock or a stock certificate
representing a fraction of a share of Common Stock.
(b) For the purpose of any computation of current market price
under this Section 14, the current market price per share of Common Stock at any
date shall be the closing price on the business day immediately prior to the
exercise of the applicable Warrant. The closing price for any day shall be the
last reported sale price regular way or, in case no such reported sale takes
place on such day, the average of the closing bid and asked prices regular way
for such day, in each case (1) on the principal national securities exchange on
which the shares of Common Stock are listed or to which such shares are admitted
to trading or (2) if the Common Stock is not listed or admitted to trading on a
national securities exchange, in the over-the-counter market as reported by
NASDAQ National Market or any comparable system or (3) if the Common Stock is
not listed on NASDAQ National Market or a comparable system, as furnished by two
members of the NASD selected from time to time in good faith by the Board of
Directors of the Company for that purpose. In the absence of all of the
foregoing, or if for any other reason the current market price per share cannot
be determined pursuant to the foregoing provisions of this paragraph (b), the
current market price per share shall be the fair market value thereof as
determined in good faith by the Board of Directors of the Company.
SECTION 15. Notices to Warrant Holders. Upon any adjustment of
the Exercise Price pursuant to Section 12, the Company shall promptly thereafter
cause to be given to each Holder of Warrants at such Holder's address appearing
on the Warrant register written notice of such adjustment by first-class mail,
postage prepaid. The Company's determination with respect to adjustments
pursuant to Section 12 shall be conclusive. The Warrant Agent shall not at any
time be under any duty or responsibility to any Holder to determine whether any
facts exist that may require any adjustment of the number of shares of Common
Stock or other stock or property issuable on exercise of the Warrants or the
Exercise Price, or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed in making such adjustment or
the validity or value (or the kind or amount) of any shares of Common Stock or
other stock or property which may be issuable on exercise of the Warrants. The
Warrant Agent shall not be responsible for any failure of the Company to make
any cash payment or to issue, transfer or deliver any shares of Common Stock or
stock certificates or other capital stock or property upon the exercise of any
Warrant.
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In case:
(a) the Company shall authorize the issuance to all holders of
shares of Common Stock of rights, options or warrants to subscribe for
or purchase shares of Common Stock or of any other subscription rights
or warrants; or
(b) the Company shall authorize the distribution (including
upon its liquidation) to all holders of shares of Common Stock of
evidences of its indebtedness or assets (including cash dividends or
cash distributions payable out of consolidated earnings or earned
surplus, but excluding dividends payable in shares of Common Stock or
distributions referred to in Section 12 hereof);
then the Company shall cause to be filed with the Warrant Agent and shall cause
to be given to each Holder of Warrants at such Holder's address appearing on the
Warrant register, at least 10 days prior to the applicable record date
hereinafter specified, or promptly in the case of events for which there is no
record date, by first class mail, postage prepaid, a written notice stating the
date as of which the holders of record of shares of Common Stock to be entitled
to receive any such rights, options, warrants or distribution is to be
determined. The failure to give the notice required by this Section 15 or any
defect therein shall not affect the legality or validity of any distribution,
right, option or warrant or the vote upon any action. Nothing contained in this
Agreement or in any of the Warrant Certificates shall be construed as conferring
upon the Holders thereof the right to vote or to consent or to receive notice as
shareholders in respect of the meetings of shareholders or the election of
directors of the Company or any other matter, or any other rights whatsoever as
shareholders of the Company.
SECTION 16. Merger, Consolidation or Change of Name of Warrant
Agent. Any corporation into which the Warrant Agent may be merged or with which
it may be consolidated, or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party, or any corporation
succeeding to the business of the Warrant Agent, shall be the successor to the
Warrant Agent hereunder without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor warrant agent under
the provisions of Section 18. Any such successor Warrant Agent shall promptly
cause notice of its succession as Warrant Agent to be mailed (by first class
mail, postage prepaid) to each Holder at such Holder's last address as shown on
the register maintained by the Warrant Agent pursuant to this Agreement. In case
at the time such successor to the Warrant Agent shall succeed to the agency
created by this Agreement, and in case at that time any of the Warrant
Certificates shall have been countersigned but not delivered, any such successor
to the Warrant Agent may adopt the countersignature of the original Warrant
Agent; and in case at that time any of the Warrant Certificates shall not have
been countersigned, any successor to the Warrant Agent may countersign such
Warrant Certificates either in the name of the predecessor Warrant Agent or in
the name of the successor to the Warrant Agent; and in all such cases such
Warrant Certificates shall have the full force and effect provided in the
Warrant Certificates and in this Agreement.
In case at any time the name of the Warrant Agent shall be
changed and at such time any of the Warrant Certificates shall have been
countersigned but not delivered, the Warrant Agent whose name has been changed
may adopt the countersignature under its prior name, and in case at that time
any of the Warrant Certificates shall not have been countersigned, the Warrant
Agent may countersign such Warrant Certificates either in its prior name or in
its changed name, and in all such cases such Warrant
11
<PAGE>
Certificates shall have the full force and effect provided in the Warrant
Certificates and in this Agreement.
SECTION 17. Warrant Agent. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the Holders of Warrants, by their
acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant
Certificates shall be taken as statements of the Company and the
Warrant Agent assumes no responsibility for the correctness of any of
the same except such as describe the Warrant Agent or action taken or
to be taken by it. The Warrant Agent assumes no responsibility with
respect to the distribution of the Warrant Certificates except as
herein otherwise provided.
(b) The Warrant Agent shall not be responsible for any failure
of the Company to comply with any of the covenants contained in this
Agreement or in the Warrant Certificates to be complied with by the
Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (which may be counsel for or employed by the
Company) and the Warrant Agent shall incur no liability or
responsibility to the Company or to any Holder of any Warrant
Certificate in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the
advice of such counsel.
(d) The Warrant Agent shall incur no liability or
responsibility to the Company or to any Holder of any Warrant
Certificate for any action taken in accordance with the provisions of
this Agreement in reliance on any Warrant Certificate, certificate of
shares, notice, resolution, waiver, consent, order, certificate, or
other paper, document or instrument believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent pursuant to
this Agreement, to reimburse the Warrant Agent for all out-of-pocket
expenses, taxes and governmental charges and other charges of any kind
and nature reasonably incurred by the Warrant Agent in the execution of
this Agreement and to indemnify the Warrant Agent and save it harmless
against any and all liabilities, including judgments, reasonable costs
and counsel fees, for anything done or omitted by the Warrant Agent
pursuant to this Agreement except as a result of its negligence or bad
faith. The Warrant Agent shall notify the Company of any claim for
which it may seek indemnity. The Company shall defend the claim and the
Warrant Agent shall cooperate in the defense. The Warrant Agent may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement
made without its consent.
(f) The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other
action likely to involve expense unless the Company or one or more
Holders of Warrant Certificates shall furnish the Warrant Agent with
reasonable security and indemnity for any costs and expenses which may
be incurred, but this provision shall not affect the power of the
Warrant Agent to take such action as it may consider proper, whether
with or without any such security or indemnity. All rights of action
under this Agreement or
12
<PAGE>
under any of the Warrants may be enforced by the Warrant Agent without
the possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such
action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent and any recovery of judgment shall
be for the ratable benefit of the Holders of the Warrants, as their
respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer
or employee of it, may buy, sell or deal in any of the Warrants or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as
though it were not Warrant Agent under this Agreement. Nothing herein
shall preclude the Warrant Agent from acting in any other capacity for
the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for
the Company, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything
which it may do or refrain from doing in connection with this Agreement
except for its own negligence or bad faith.
(i) The Warrant Agent shall not at any time be under any duty
or responsibility to any Holder of any Warrant Certificate to make or
cause to be made any adjustment of the Exercise Price or number of
Warrant Shares or other securities or property deliverable as provided
in this Agreement, or to determine whether any facts exist which may
require any of such adjustments, or with respect to the nature or
extent of any such adjustments, when made, or with respect to the
method employed in making the same. The Warrant Agent shall not be
accountable with respect to the validity or value or the kind or amount
of any Warrant Shares or of any securities or property which may at any
time be issued or delivered upon the exercise of any Warrant or with
respect to whether any such Warrant Shares or other securities will
when issued be validly issued and fully paid and nonassessable, and
makes no representation with respect thereto.
SECTION 18. Resignation and Removal of Warrant Agent;
Appointment of Successor. No resignation or removal of the Warrant Agent and no
appointment of a successor warrant agent shall become effective until the
acceptance of appointment by the successor warrant agent as provided herein. The
Warrant Agent may resign its duties and be discharged from all further duties
and liability hereunder (except liability arising as a result of the Warrant
Agent's own negligence or willful misconduct) after giving written notice to the
Company. The Company may remove the Warrant Agent upon written notice, and the
Warrant Agent shall thereupon in like manner be discharged from all further
duties and liabilities hereunder, except as aforesaid. The Warrant Agent shall,
at the Company's expense, cause to be mailed (by first class mail, postage
prepaid) to each Holder of a Warrant at such Holder's last address as shown on
the register of the Company maintained by the Warrant Agent a copy of said
notice of resignation or notice of removal, as the case may be. Upon such
resignation or removal, the Company shall appoint in writing a new warrant
agent. If the Company shall fail to make such appointment within a period of 30
days after it has been notified in writing of such resignation by the resigning
Warrant Agent or after such removal, then the resigning Warrant Agent or the
Holder of any Warrant may apply to any court of competent jurisdiction for the
appointment of a new warrant agent. Any new warrant agent, whether appointed by
the Company or by such a court, shall be a corporation doing business under the
laws of the United States or any state thereof, in good standing and having a
combined capital and
13
<PAGE>
surplus of not less than $50,000,000. The combined capital and surplus of any
such new warrant agent shall be deemed to be the combined capital and surplus as
set forth in the most recent annual report of its condition published by such
warrant agent prior to its appointment, provided that such reports are published
at least annually pursuant to law or to the requirements of a federal or state
supervising or examining authority. After acceptance in writing of such
appointment by the new warrant agent, it shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named herein as
the Warrant Agent, without any further assurance, conveyance, act or deed; but
if for any reason it shall be necessary or expedient to execute and deliver any
further assurance, conveyance, act or deed, the same shall be done and shall be
legally and validly executed and delivered by the resigning or removed Warrant
Agent. Not later than the effective date of any such appointment, the Company
shall give notice thereof to the resigning or removed Warrant Agent. Failure to
give any notice provided for in this Section, however, or any defect therein,
shall not affect the legality or validity of the resignation of the Warrant
Agent or the appointment of a new warrant agent, as the case may be.
SECTION 19. Notices to Company and Warrant Agent. Any notice
or demand authorized by this Agreement to be given or made by the Warrant Agent
or by the Holder of any Warrant Certificate to or on the Company shall be
sufficiently given or made when and if deposited in the mail, first class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
Hvide Marine Incorporated
2200 Eller Drive, P.O. Box 13038
Ft. Lauderdale, FL 33316
Telecopy: (954) 527-1772
Telephone: (954) 523-2200
Attention: General Counsel
In case the Company shall fail to maintain such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations may be made and notices and demands may be
served at the principal office of the Warrant Agent.
Any notice pursuant to this Agreement to be given by the
Company or by the Holder of any Warrant Certificate to the Warrant Agent shall
be sufficiently given when and if deposited in the mail, first-class or
registered, postage prepaid, addressed (until another address is filed in
writing by the Warrant Agent with the Company) to the Warrant Agent as follows:
=======================
=======================
SECTION 20. Supplements and Amendments. The Company and the
Warrant Agent may from time to time supplement or amend this Agreement without
the approval of any Holders in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions in regard to
matters or questions arising hereunder which the Company and the Warrant Agent
may deem necessary
14
<PAGE>
or desirable and which shall not in any way materially adversely affect the
interests of the Holders of Warrant Certificates. Any amendment or supplement to
this Agreement that has a material adverse effect on the interests of Holders
shall require the written consent of Holders representing a majority of the then
outstanding Warrants. The consent of each Holder of a Warrant affected shall be
required for any amendment pursuant to which the Exercise Price would be
increased or the number of Warrant Shares purchasable upon exercise of Warrants
would be decreased (other than pursuant to adjustments provided for in Section
12 hereof). The Warrant Agent shall be entitled to receive and, subject to
Section 17, shall be fully protected in relying upon, an officers' certificate
and opinion of counsel as conclusive evidence that any such amendment or
supplement is authorized or permitted hereunder, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company in accordance
with its terms.
SECTION 21. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Warrant Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
SECTION 22. Termination. This Agreement (other than any
party's obligations with respect to Warrants previously exercised and with
respect to indemnification under Section 17) shall terminate at 5:00 p.m., New
York City time on the Expiration Date.
SECTION 23. Governing Law. THIS AGREEMENT AND EACH WARRANT
CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF SAID STATE.
SECTION 24. Benefits of This Agreement.
(a) Nothing in this Agreement shall be construed to give to
any Person other than the Company, the Warrant Agent and the Holders of the
Warrant Certificates any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and the Holders of the Warrant Certificates.
(b) Prior to the exercise of the Warrants, no Holder of a
Warrant Certificate, as such, shall be entitled to any rights of a stockholder
of the Company, including, without limitation, the right to receive dividends or
subscription rights, the right to vote, to consent, to exercise any preemptive
right, to receive any notice of meetings of stockholders for the election of
directors of the Company or any other matter or to receive any notice of any
proceedings of the Company, except as may be specifically provided for herein.
The Holders of the Warrants are not entitled to share in the assets of the
Company in the event of the liquidation, dissolution or winding up of the
Company's affairs.
(c) All rights of action in respect of this Agreement are
vested in the Holders of the Warrants, and any Holder of any Warrant, without
the consent of the Warrant Agent or the Holder of any other Warrant, may, on
such Holder's own behalf and for such Holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, such Holder's rights hereunder,
including the right to exercise, exchange or surrender for purchase such
Holder's Warrants in the manner provided in this Agreement.
15
<PAGE>
SECTION 25. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
[Signature Page Follows]
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, as of the day and year first above written.
HVIDE MARINE INCORPORATED
By:
Name:
Title:
[WARRANT AGENT]
By:
Name:
Title:
17
<PAGE>
EXHIBIT A
[Form of Warrant Certificate]
[Face]
No. Warrants
Class A Warrant Certificate
HVIDE MARINE INCORPORATED
This Warrant Certificate certifies that , or its registered
assigns, is the registered holder of Warrants expiring ____________, 2003 (the
"Warrants") to purchase Common Stock, par value $.01 (the "Common Stock"), of
Hvide Marine Incorporated, a Delaware corporation (the "Company"). Each Warrant
entitles the registered holder upon exercise at any time from 9:00 a.m. on or
after the date of the consummation of the Plan of Reorganization of Hvide Marine
Incorporated, a Florida corporation, under Chapter 11 of the Bankruptcy Code
(the "Exercisability Date") until 5:00 p.m. New York City Time on _____________,
2003, to receive from the Company one fully paid and nonassessable share of
Common Stock (the "Warrant Shares") at the initial exercise price (the "Exercise
Price") of $______ per share payable in lawful money of the United States of
America upon surrender of this Warrant Certificate and payment of the Exercise
Price at the office or agency of the Warrant Agent, but only subject to the
conditions set forth herein and in the Warrant Agreement referred to on the
reverse hereof. The Exercise Price and number of Warrant Shares issuable upon
exercise of the Warrants are subject to adjustment upon the occurrence of
certain events set forth in the Warrant Agreement.
No Warrant may be exercised before the Exercisability Date. No
Warrant may be exercised after 5:00 p.m., New York City Time on _________, 2003,
and to the extent not exercised by such time such Warrants shall become void.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof which further provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Warrant Certificate shall not be valid unless
countersigned by the Warrant Agent, as such term is used in the Warrant
Agreement.
This Warrant Certificate shall be governed by and construed in
accordance with the internal laws of the State of New York.
IN WITNESS WHEREOF, Hvide Marine Incorporated, a Delaware corporation,
has caused this Warrant Certificate to be signed by its President and by its
Secretary, each by a signature or a facsimile thereof, and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
A1
<PAGE>
HVIDE MARINE INCORPORATED
By:
Name:
Title: President
By:
Name:
Title: Secretary
[SEAL]
Countersigned:
- ----------------------
as Warrant Agent
By:
Authorized Signature
A2
<PAGE>
[Form of Warrant Certificate]
[Reverse]
[Unless and until it is exchanged in whole or in part for
Warrant Certificates in definitive form, the Warrants represented by this
Certificate may not be transferred except as a whole by the depositary to
a nominee of the depositary or by a nominee of the depositary to the
depositary or another nominee of the depositary or by the depositary or
any such nominee to a successor depositary or a nominee of such successor
depositary. The Depository Trust Company ("DTC"), (55 Water Street, New
York, New York) shall act as the depositary until a successor shall be
appointed by the Company and the Warrant Agent. Unless this certificate is
presented by an authorized representative of DTC to the issuer or its
agent for registration of transfer, exchange or payment, and any new
certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.]1
The Warrants evidenced by this Warrant Certificate are
part of a duly authorized issue of Warrants expiring ___________, 2003
entitling the holder on exercise to receive shares of Common Stock, par
value $.01, of the Company (the "Common Stock"), and are issued or to be
issued pursuant to a Warrant Agreement, dated as of ______________, 1999
(the "Warrant Agreement"), duly executed and delivered by the Company to
_______________, as warrant agent (the "Warrant Agent"), which Warrant
Agreement is hereby incorporated by reference herein and made a part of
this instrument and is hereby referred to for a description of the rights,
limitation of rights, obligations, duties and immunities thereunder of the
Warrant Agent, the Company and the holders (the words "holder" or
"holders" meaning the registered holder or registered holders) of the
Warrants. A copy of the Warrant Agreement may be obtained by the holder
hereof upon written request to the Company. Capitalized terms used herein
without definition shall have the meanings ascribed to them in the Warrant
Agreement.
Warrants may be exercised at any time from 9:00 a.m. on
or after the Exercisability Date and until 5:00 p.m., New York City Time
on the Expiration Date. The holder of Warrants evidenced by this Warrant
Certificate may exercise them by surrendering this Warrant Certificate,
with the form of election to purchase set forth hereon properly completed
and executed, together with payment of the Exercise Price in lawful money
of the United States of America at the office of the Warrant Agent. In the
event that upon any exercise of Warrants evidenced hereby the number of
Warrants exercised shall be less than the total number of Warrants
evidenced hereby, there shall be issued to the holder hereof or his
assignee a new Warrant Certificate evidencing the number of Warrants not
exercised. No adjustment shall be made for any dividends on any Common
Stock issuable upon exercise of this Warrant.
The Warrant Agreement provides that upon the occurrence
of certain events the Exercise Price set forth on the face hereof and/or
the number of shares of Common Stock issuable
- --------
1 This paragraph is to be included only if the Warrant is in global form.
A3
<PAGE>
upon the exercise of each Warrant shall, subject to certain conditions, be
adjusted. Upon the exercise of any Warrant, the Company may, at its
option, pay cash in lieu of the issuance of fractional shares of Common
Stock as provided in the Warrant Agreement.
Warrant Certificates, when surrendered at the office of
the Warrant Agent by the registered holder thereof in person or by legal
representative or attorney duly authorized in writing, may be exchanged,
in the manner and subject to the limitations provided in the Warrant
Agreement, but without payment of any service charge, for another Warrant
Certificate or Warrant Certificate's of like tenor evidencing in the
aggregate a like number of Warrants.
Upon due presentation for registration of transfer of
this Warrant Certificate at the office of the Warrant Agent a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the
aggregate a like number of Warrants shall be issued to the transferee(s)
in exchange for this Warrant Certificate, subject to the limitations
provided in the Warrant Agreement, without charge except for any tax or
other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the
Holder(s) hereof as the absolute owner(s) of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone), for the purpose of any exercise hereof, of any distribution to
the Holder(s) hereof, and for all other purposes, and neither the Company
nor the Warrant Agent shall be affected by any notice to the contrary.
Neither the Warrants nor this Warrant Certificate entitles any Holder
hereof to any rights of a stockholder of the Company.
A4
<PAGE>
[Form of Election to Purchase]
(To Be Executed Upon Exercise Of Warrant)
The undersigned hereby irrevocably elects to exercise the
right, represented by this Warrant Certificate, to receive shares of
Common Stock and herewith makes payment therefor. The undersigned requests
that a certificate for such shares be registered in the name of
, whose address is and
that such shares be delivered to
, whose address is . If said number
of shares is less than all of the shares
of Common Stock purchasable hereunder, the undersigned requests that a new
Warrant Certificate representing the remaining balance of such shares be
registered in the name of
, whose address is , and that such Warrant
Certificate be delivered to
, whose address is .
Signature
Date:
Signature Guaranteed
CREDIT AGREEMENT
among
HVIDE MARINE INCORPORATED,
as Borrower
BANKERS TRUST COMPANY,
as Administrative Agent
DEUTSCHE BANK SECURITIES INC.,
as Lead Arranger and Book Manager
and
MEESPIERSON CAPITAL CORP.,
as Syndication Agent
and Co-Arranger
and
The Various Persons
from time to time parties to this Agreement,
as Lenders
$ 225,000,000
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
DATED AS OF DECEMBER 15, 1999
- --------------------------------------------------------------------------------
WHITE & CASE LLP
- --------------------------------------------------------------------------------
<PAGE>
CREDIT AGREEMENT dated as of December 15, 1999 among HVIDE
MARINE INCORPORATED, a corporation existing under the laws of Delaware, as
borrower (the "Borrower"), Bankers Trust Company ("BTCo"), as administrative
agent (in such capacity, the "Administrative Agent") for the Lenders from time
to time parties hereto, Deutsche Bank Securities, Inc. ("DBSI"), as lead
arranger and book manager (the "Lead Arranger"), and MeesPierson Capital Corp.
("MP"), as syndication agent and co-arranger (the "Syndication Agent") and the
Lenders.
W I T N E S S E T H:
WHEREAS, on November 2, 1999, the United States Bankruptcy
Court (the "Bankruptcy Court") approved the Disclosure Statement relating to the
First Amended Joint Plan of Reorganization dated November 1, 1999, pursuant to
Section 1125 of the Bankruptcy Code and entered an order relating to (i) the
solicitation of acceptances or rejections of the First Amended Joint Plan of
Reorganization (the "Reorganization Plan") and (ii) the hearing to consider
confirmation of the Reorganization Plan;
WHEREAS, on December 9, 1999, the US Bankruptcy Court
confirmed the Reorganization Plan and entered the Confirmation Order;
WHEREAS, the Borrower has applied to the Lenders for a term
loan, revolving credit and letter of credit facility in an aggregate amount not
to exceed $225,000,000 (subject to voluntary reductions in accordance with
Section 3.02), which may be used (x) to repay the amount owed by the Borrower
under its debtor-in-possession credit facility (the "DIP Facility") and (y) to
provide for working capital, capital expenditures and general corporate purposes
and payments of professional fees and expenses;
WHEREAS, subject to and upon the terms and conditions herein
set forth, and in the Reorganization Plan, the Lenders are willing to make
available to the Borrower the credit facilities provided for herein.
NOW, THEREFORE, IT IS AGREED:
Section 1. Loans.
1.01 Commitments. (a) Subject to and upon the terms and
conditions set forth herein, each Lender with a Tranche A Term Loan Commitment
severally agrees to make, on the Effective Date, a term loan (each, a "Tranche A
Term Loan" and, collectively, the "Tranche A Term Loans") to the Borrower, which
Tranche A Term Loans (i) shall be made and maintained as Base Rate Loans until
the 10th day following the Effective Date, and thereafter, at the option of the
Borrower, converted into, Base Rate Loans or Eurodollar Loans, provided that,
(A) except as otherwise specifically provided in Section 1.10(b), all Tranche A
Term Loans comprising the same Borrowing shall at all times be of the same Type
and (B) unless the Administrative Agent has determined that the Syndication Date
has occurred (at which time this clause (B) shall no longer be applicable), no
more than three Borrowings of Tranche A Term Loans to be maintained as
Eurodollar Loans may be incurred after the 10th day following the Effective Date
and prior to the 90th day after the Effective Date (each of which Borrowings of
Eurodollar Loans may only have an Interest Period of one month, and the first of
which Borrowings may only be made on a single date on or after the Effective
Date and on or before the sixth Business Day following the Effective Date and
the second and third of which Borrowings may only be made on the last day of the
Interest Period of the first such Borrowing and the second such Borrowing,
respectively) and (ii) shall be made by each Lender in that initial aggregate
principal amount as is equal to the Tranche A Term Loan Commitment of such
Lender on such date (before giving effect to any reductions thereto on such date
pursuant to Section 3.03(b)). Once repaid, Tranche A Term Loans incurred here-
under may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth
herein, each Lender with a Tranche B Term Loan Commitment severally agrees to
make, on the Effective Date, a term loan (each, a "Tranche B Term Loan" and,
collectively, the "Tranche B Term Loans") to the Borrower, which Tranche B Term
Loans (i) shall be made and maintained as Base Rate Loans until the 10th day
following the Effective Date, and thereafter, at the option of the Borrower,
converted into, Base Rate Loans or Eurodollar Loans, provided that, (A) except
as otherwise specifically provided in Section 1.10(b), all Tranche B Term Loans
comprising the same Borrowing shall at all times be of the same Type and (B)
unless the Administrative Agent has determined that the Syndication Date has
occurred (at which time this clause (B) shall no longer be applicable), no more
than three Borrowings of Tranche B Term Loans to be maintained as Eurodollar
Loans may be incurred after the 10th day following the Effective Date and prior
to the 90th day after the Effective Date (each of which Borrowings of Eurodollar
Loans may only have an Interest Period of one month, and the first of which
Borrowings may only be made on a single date on or after the Effective Date and
on or before the sixth Business Day following the Effective Date and the second
and third of which Borrowings may only be made on the last day of the Interest
Period of the first such Borrowing and the second such Borrowing, respectively)
and (ii) shall be made by each Lender in that initial aggregate principal amount
as is equal to the Tranche B Term Loan Commitment of such Lender on such date
(before giving effect to any reductions thereto on such date pursuant to Section
3.03(c)). Once repaid, Tranche B Term Loans incurred hereunder may not be
reborrowed.
(c) Subject to and upon the terms and conditions set forth
herein, each Lender with a Tranche C Term loan Commitment severally agrees to
make, on the Effective Date, a term loan (each, a "Tranche C Term Loan" and,
collectively, the "Tranche C Term Loans") to the Borrower, which Tranche C Term
Loans (i) shall be made and maintained as Base Rate Loans until the 10th day
following the Effective Date, and thereafter, at the option of the Borrower, be
incurred and maintained as, and/or converted into, Base Rate Loans or Eurodollar
Loans, provided that, (A) except as otherwise specifically provided in Section
1.10(b), all Tranche C Term Loans comprising the same Borrowing shall at all
times be of the same Type and (B) unless the Administrative Agent has determined
that the Syndication Date has occurred (at which time this clause (B) shall no
longer be applicable), no more than three Borrowings of Tranche C Term Loans to
be maintained as Eurodollar Loans may be incurred after the 10th day following
the Effective Date and prior to the 90th day after the Effective Date (each of
which Borrowings of Eurodollar Loans may only have an Interest Period of one
month, and the first of which Borrowings may only be made on a single date on or
after the Effective Date and on or before the sixth Business Day following the
Effective Date and the second and third of which Borrowings may only be made on
the last day of the Interest Period of the first such Borrowing and the second
such Borrowing, respectively) and (ii) shall be made by each Lender in that
initial aggregate principal amount as is equal to the Tranche C Term Loan
Commitment of such Lender on such date (before giving effect to any reductions
thereto on such date pursuant to Section 3.03(d)). Once repaid, Tranche C Term
Loans incurred hereunder may not be reborrowed.
(d) Subject to and upon the terms and conditions set forth
herein, each Lender with a Revolving Loan Commitment severally agrees to make,
at any time and from time to time on or after the Effective Date and prior to
the Revolving Maturity Date, a loan or loans to the Borrower (each a "Revolving
Loan" and collectively the "Revolving Loans"), which Revolving Loans:
(i) shall be made and maintained as Base Rate Loans until the
10th day following the Effective Date, and thereafter, at the option of
the Borrower, be converted into, Base Rate Loans or Eurodollar Loans,
provided that, (A) except as otherwise specifically provided in Section
1.10(b), all Revolving Loans comprising the same Borrowing shall at all
times be of the same Type and (B) unless the Administrative Agent has
determined that the Syndication Date has occurred (at which time this
clause (B) shall no longer be applicable), no more than three
Borrowings of Revolving Loans to be maintained as Eurodollar Loans may
be incurred after the 10th day following the Effective Date and prior
to the 90th day after the Effective Date (each of which Borrowings of
Eurodollar Loans may only have an Interest Period of one month, and the
first of which Borrowings may only be made on a single date on or after
the Effective Date and on or before the sixth Business Day following
the Effective Date and the second and third of which Borrowings may
only be made on the last day of the Interest Period of the first such
Borrowing and the second such Borrowing, respectively);
(ii) may be repaid and reborrowed in accordance with the
provisions hereof and
(iii) shall not exceed for any Lender at any time outstanding
that aggregate principal amount which, when added to such Lender's
Proportionate Share of the aggregate amount of all Letter of Credit
Outstandings and outstanding Swingline Loans, equals the Revolving
Commitment of such Lender at such time.
(e) Subject to and upon the terms and conditions herein set
forth, the Swingline Lender in its individual capacity agrees to make at any
time and from time to time on and after the Effective Date and prior to the
Swingline Expiry Date, a revolving loan or revolving loans (each, a "Swingline
Loan" and, collectively, the "Swingline Loans") to the Borrower, which Swingline
Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid
and reborrowed in accordance with the provisions hereof, (iii) shall not exceed
in aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans then outstanding and the
Letter of Credit Outstandings at such time, an amount equal to the Total
Revolving Loan Commitment at such time, (iv) shall not exceed at any time
outstanding the Maximum Swingline Amount and (v) shall not be extended if the
Swingline Lender receives a written notice from the Administrative Agent or the
Required Lenders that has not been rescinded that there is a Default or an Event
of Default in existence hereunder. Notwithstanding the foregoing, the Swingline
Lender shall not be obligated to make Swingline Loans if a Lender Default
exists, unless the Swingline Lender has entered into arrangements satisfactory
to it and the Borrower to eliminate the Swingline Lender's risks with respect to
the participation in Swingline Loans of the relevant Defaulting Lender or
Lenders, including cash collateralizing, such Defaulting Lender's or Lenders'
Proportionate Share of outstanding Swingline Loans.
(f) On any Business Day, the Swingline Lender may, in its sole
discretion, give notice to the other Lenders that its outstanding Swingline
Loans shall be funded with a Borrowing of Revolving Loans (provided that such
notice shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 9.09 or upon the exercise of any of
the remedies provided in the last paragraph of Section 9), in which case a
Borrowing of Revolving Loans constituting Base Rate Loans (each such Borrowing,
a "Mandatory Borrowing") shall be made on the immediately succeeding Business
Day by all Lenders with a Revolving Loan Commitment (without giving effect to
any reductions thereto pursuant to the last paragraph of Section 9) pro rata
based on each Lender's Proportionate Share and the proceeds thereof shall be
paid directly to the Swingline Lender to repay the Swingline Lender for such
outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make
Revolving Loans upon one Business Day's notice pursuant to each Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the date specified in writing by the Swingline Lender notwithstanding (i)
that the amount of the Mandatory Borrowing may not comply with the minimum
amount for Borrowings otherwise required hereunder, (ii) whether any conditions
specified in Section 5 are then satisfied, (iii) whether a Default or an Event
of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the
amount of the Total Revolving Loan Commitment at such time. In the event that
any Mandatory Borrowing cannot for any reason be made on the date otherwise
required above (including, without limitation, as a result of the commencement
of a proceeding under the Bankruptcy Code with respect to the Borrower), then
each such Lender hereby agrees that it shall forthwith purchase (as of the date
the Mandatory Borrowing would otherwise have occurred, but adjusted for any
payments received from the Borrower on or after such date and prior to such
purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause such Lenders to share in such
Swingline Loans ratably based upon their respective Proportionate Shares
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 9), provided that (x) all
interest payable on the Swingline Loans shall be for the account of the
Swingline Lender until the date as of which the respective participation is
required to be purchased and, to the extent attributable to the purchased
participation, shall be payable to the participant from and after such date and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay the Swingline
Lender interest on the principal amount of participation purchased for each day
from and including the day upon which the Mandatory Borrowing would otherwise
have occurred but excluding the date of payment for such participation, at the
overnight Federal Funds Rate for the first three days and at the rate otherwise
applicable to Revolving Loans maintained as Base Rate Loans hereunder for each
day thereafter.
1.02 Notice of Borrowing. (a) Borrowings (other than Borrowing of
Swingline Loans) shall be made on notice from the Borrower to the Administrative
Agent at its Notice Office, given not later than 12:00 Noon New York City time
on the first Business Day prior to the date on which any proposed Borrowing
consisting of Base Rate Loans is requested to be made and on the third Business
Day prior to the date on which any proposed Borrowing consisting of Eurodollar
Loans is requested to be made. Each Notice of Borrowing shall be given by either
telephone, telecopy, telex, facsimile or cable, and, if by telephone, confirmed
in writing, substantially in the form of Exhibit A (the "Notice of Borrowing"),
appropriately completed to specify the aggregate principal amount of the Loans
to be made pursuant to such Borrowing, the date of such Borrowing (which shall
be a Business Day), whether the Loans being made pursuant to such Borrowing
shall constitute Tranche A Term Loans, Tranche B Term Loans, Tranche C Term
Loans or Revolving Loans and whether the Loans being made pursuant to such
Borrowing are to be initially maintained as Base Rate Loans or Eurodollar Loans
and, if Eurodollar Loans, the initial Interest Period to be applicable thereto.
The Administrative Agent shall promptly give each Lender, which is required to
make Loans of the Tranche specified in the respective Notice of Borrowing,
notice of such proposed Borrowing, of such Lender's pro rata share thereof and
of the other matters required by the immediately preceding sentence to be
specified in the Notice of Borrowing. Each Notice of Borrowing shall (x) (unless
deemed to be rescinded by the Borrower pursuant to Section 1.10(a) or cancelled
by the Borrower pursuant to Section 1.10(b)) be irrevocable by and binding on
the Borrower and (y) be executed by a Responsible Officer who shall certify
that, to the best of such officer's knowledge and without personal liability,
(a) the proposed extension of credit and its intended use are consistent with
the terms of the Credit Documents, (b) unless the Borrowing is incurred in order
to repay Unpaid Drawings pursuant to Section 2.04(a), the Borrower and the
Subsidiary Guarantors have observed or performed all of their covenants and
other agreements and have satisfied in all material respects every condition
contained in the Credit Documents to be observed, performed or satisfied by the
Borrower or such Subsidiary Guarantors and (c) such officer has no knowledge of
any Default or Event of Default.
(b) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give the Swingline Lender not later than
2:00 p.m. (New York City time) on the date that a Swingline Loan is to be made,
written notice or telephonic notice promptly confirmed in writing of each
Swingline Loan to be made hereunder. Each such notice shall be irrevocable and
specify in each case (A) the date of Borrowing (which shall be a Business Day)
and (B) the aggregate principal amount of the Swingline Loans to be made
pursuant to such Borrowing.
(c) The Borrower shall provide the Administrative Agent with a
specimen signature of each of the Responsible Officers, who shall be the sole
Persons authorized to request Loans on behalf of the Borrower. The
Administrative Agent shall be entitled to rely conclusively on such Responsible
Officers' authority to request Loans on behalf of the Borrower until the
Administrative Agent receives written notice to the contrary. The Administrative
Agent shall have no duty to verify the authenticity of the signature appearing
on any Notice of Borrowing and, with respect to an oral request for Loans, the
Administrative Agent, acting in good faith, shall have no duty to verify the
identity of any individual representing himself as one of the Responsible
Officers authorized to make such request on behalf of the Borrower. Neither the
Administrative Agent nor any of the Lenders shall incur any liability to the
Borrower as a result of acting upon any telephonic notice referred to in this
Section 1.02(c) which notice the Administrative Agent believes in good faith to
have been given by a Responsible Officer on behalf of the Borrower or for
otherwise acting reasonably and in good faith under this Section 1.02(c) and,
upon the funding of Loans by the Lenders in accordance with this Agreement,
pursuant to any such telephonic notice, the Borrower shall be deemed to have
made a Borrowing of Loans hereunder.
1.03 Minimum Amount of Each Borrowing; Limitation on Number of Borrowings. In a
Notice of Borrowing, the Borrower may request one or more Borrowings on a single
day; provided that at no time shall there be outstanding more than eight
Borrowings of Eurodollar Loans. Each Borrowing shall, unless otherwise
specifically provided herein, consist entirely of Loans of the same Type and
shall be in an aggregate amount for all Lenders of not less than the Minimum
Borrowing Amount, if applicable, for such Borrowing and if greater than the
Minimum Borrowing Amount, such Borrowing shall be in an integral multiple of
$500,000. Unless otherwise requested in the applicable Notice of Borrowing, all
Loans shall be Base Rate Loans. The aggregate principal amount of each Borrowing
of Swingline Loans shall not be less than $50,000.
1.04 Disbursement of Funds. Except as otherwise specifically
provided in the immediately succeeding sentence, no later than 12:00 Noon (New
York City time) on the date specified in each Notice of Borrowing (or in the
case of Swingline Loans, not later than 3:00 P.M. (New York City time) on the
date specified pursuant to Section 1.02(b)), each Lender with a Commitment
within the respective Tranche will make available its pro rata portion of each
such Borrowing requested to be made on such date. All such amounts shall be made
available in Dollars and in immediately available funds at the Payment Office of
the Administrative Agent, and the Administrative Agent will make available to
the Borrower at the Payment Office the aggregate of the amounts so made
available by the Lenders (prior to 1:00 P.M. (New York City time) on such day to
the extent of funds actually received by the Administrative Agent prior to 12:00
Noon (New York City time) on such day) (or in the case of Swingline Loans, the
Swingline Lender shall make available the full amount thereof). Unless the
Administrative Agent shall have been notified by any Lender prior to the date of
Borrowing that such Lender does not intend to make available to the
Administrative Agent such Lender's portion of any Borrowing to be made on such
date, the Administrative Agent may assume that such Lender has made such amount
available to the Administrative Agent on such date of Borrowing and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If such corresponding amount is not in fact
made available to the Administrative Agent by such Lender, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower until the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (i) if recovered from such
Lender, the overnight Federal Funds Rate and (ii) if recovered from the
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.08. Nothing in this Section 1.04 shall be
deemed to relieve any Lender from its obligation to make Loans hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any failure by such Lender to make Loans hereunder. No Commitment of any
Lender shall be increased or otherwise affected, and performance by the Borrower
shall not be excused, by the operation of this Section 1.04.
1.05 Notes. (a) The Borrower's obligation to pay the principal
of, and interest on, the Loans made by each Lender shall be evidenced, to the
extent requested by such Lender, (i) if Tranche A Term Loan, by a promissory
note duly executed and delivered by the Borrower substantially in the form of
Exhibit B-1 with blanks appropriately completed in conformity herewith (each, a
"Tranche A Term Note" and, collectively, the "Tranche A Term Notes"), (ii) if
Tranche B Term Loan, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-2 with blanks appropriately
completed in conformity herewith (each, a "Tranche B Term Note" and,
collectively, the "Tranche B Term Notes"), (iii) if Tranche C Term Loan, by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B-3 with blanks appropriately completed in conformity herewith
(each, a "Tranche C Term Note" and collectively, the "Tranche C Term Notes"),
(iv) if Revolving Loans, by a promissory note duly executed and delivered by the
Borrower substantially in the form of Exhibit B-4, with blanks appropriately
completed in conformity herewith (each, a "Revolving Note" and, collectively,
the "Revolving Notes") and (v) if Swingline Loans, by a promissory note duly
executed and delivered by the Borrower substantially in the form of Exhibit B-5,
with blanks appropriately completed in conformity herewith (the "Swingline
Note").
(b) The Tranche A Term Note issued to each requesting Lender
shall (i) be executed by the Borrower, (ii) be payable to the order of such
Lender or its registered assigns and be dated the Effective Date (or, in the
case of Tranche A Term Notes issued after the Effective Date, be dated the date
of the issuance thereof), (iii) be in a stated principal amount equal to the
Tranche A Term Loan made by such Lender on the Effective Date (or, in the case
of Tranche A Term Notes issued after the Effective Date, be in a stated
principal amount equal to the outstanding principal amount of the Tranche A Term
Loan of such Lender on the date of the issuance thereof) and be payable in the
principal amount of Tranche A Term Loans evidenced thereby, (iv) mature on the
Tranche A Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment and mandatory repayment as provided in Sections 4.01 and
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(c) The Tranche B Term Note issued to each requesting Lender
shall (i) be executed by the Borrower, (ii) be payable to the order of such
Lender or its registered assigns and be dated the Effective Date (or, in the
case of Tranche B Term Notes issued after the Effective Date, be dated the date
of the issuance thereof), (iii) be in a stated principal amount equal to the
Tranche B Term Loan made by such Lender on the Effective Date (or, in the case
of Tranche B Term Notes issued after the Effective Date, be in a stated
principal amount equal to the outstanding principal amount of the Tranche B Term
Loan of such Lender on the date of the issuance thereof) and be payable in the
principal amount of Tranche B Term Loans evidenced thereby, (iv) mature on the
Tranche B Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment and mandatory repayment as provided in Sections 4.01 and
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(d) The Tranche C Term Note issued to each requesting Lender
shall (i) be executed by the Borrower, (ii) be payable to the order of such
Lender or its registered assigns and be dated the Effective Date (or, in the
case of Tranche C Term Notes issued after the Effective Date, be dated the date
of the issuance thereof), (iii) be in a stated principal amount equal to the
Tranche C Term Loan made by such Lender on the Effective Date (or, in the case
of Tranche C Term Notes issued after the Effective Date, be in a stated
principal amount equal to the outstanding principal amount of the Tranche C Term
Loan of such Lender on the date of the issuance thereof) and be payable in the
principal amount of Tranche C Term Loans evidenced thereby, (iv) mature on the
Tranche C Term Loan Maturity Date, (v) bear interest as provided in the
appropriate clause of Section 1.08 in respect of the Base Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby, (vi) be subject to
voluntary prepayment and mandatory repayment as provided in Sections 4.01 and
4.02 and (vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(e) The Revolving Note issued to each requesting Lender shall
(i) be executed by the Borrower, (ii) be payable to the order of such Lender or
its registered assigns and be dated the Effective Date (or, in the case of
Revolving Notes issued after the Effective Date, be dated the date of the
issuance thereof), (iii) be in a stated principal amount equal to the Revolving
Loan Commitment of such Lender and be payable in the principal amount of the
Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment and mandatory
repayment as provided in Sections 4.01 and 4.02 and (vii) be entitled to the
benefits of this Agreement and the other Credit Documents.
(f) The Swingline Note issued, if requested, to the Swingline
Lender shall (i) be executed by the Borrower, (ii) be payable to the order of
the Swingline Lender and be dated the Effective Date (or, in the case of any
Swingline Note issued after the Effective Date, be dated the date of the
issuance thereof), (iii) be in a stated principal amount equal to the Maximum
Swingline Amount and be payable in the principal amount of the outstanding
Swingline Loans evidenced thereby, (iv) mature on the Swingline Expiry Date, (v)
bear interest as provided in the appropriate clause of Section 1.08 in respect
of the Base Rate Loans evidenced thereby and (vi) be entitled to the benefits of
this Agreement and the other Credit Documents.
(g) Each Lender will note on its internal records the amount
of each Loan made by it and each payment in respect thereof and will, prior to
any transfer of any of its Notes, endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation or any error in any such notation or endorsement shall not affect
the Borrower's obligations in respect of such Loans.
1.06 Conversions and Continuations. On and after the 10th day
following the Effective Date, the Borrower shall have the option (x) to convert,
on any Business Day, all or a portion equal to not less than the Minimum
Borrowing Amount (if applicable) of the outstanding principal amount of the
Loans (other than Swingline Loans, which shall be maintained as Base Rate Loans)
made to it pursuant to one or more Borrowings of one Type of Loans into a
Borrowing of another Type of Loans (of the same Tranche) or (y) to continue an
outstanding Borrowing of Eurodollar Loans for an additional Interest Period upon
the expiration of the then current Interest Period, provided that (i) Eurodollar
Loans may be continued or converted into Base Rate Loans only on the last day of
an Interest Period applicable to the Loans being continued or converted, (ii) no
partial conversion of Eurodollar Loans shall reduce the outstanding principal
amount of Eurodollar Loans made pursuant to any single Borrowing to less than
the Minimum Borrowing Amount applicable thereto, (iii) Base Rate Loans may only
be converted into Eurodollar Loans if no Default under Section 9.01 or 9.09 or
Event of Default is in existence on the date of the conversion and the
Administrative Agent or the Required Lenders shall have determined in its or
their sole discretion not to permit such conversion and (iv) Swingline Loans may
not be converted pursuant to this Section 1.06. Each such conversion or
continuation shall be effected by the Borrower giving the Administrative Agent,
at its Notice Office prior to 12:00 Noon (New York City time) notice thereof (i)
at least three Business Days in advance in the case of conversions into
Eurodollar Loans and continuations thereof or (ii) on the Business Day of the
proposed conversion date in the case of conversions into Base Rate Loans (each a
"Notice of Conversion/Continuation") specifying the Loans to be so converted or
continued and, if to be converted into Eurodollar Loans or continued as
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion or continuation, as applicable. Notices of Conversion/Continuation
shall be given by telephone, telecopy, telex, facsimile or cable, confirmed
promptly in writing if by telephone.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans and Revolving Loans under this
Agreement shall be incurred from the Lenders pro rata on the basis of their
respective Tranche A Term Loan Commitments, Tranche B Term Loan Commitments,
Tranche C Term Loan Commitments or Revolving Loan Commitments, as the case may
be. Swingline Loans shall be incurred from the Swingline Lender.
1.08 Interest. (a) The Borrower agrees to pay interest in
respect of the unpaid principal amount of each Base Rate Loan made to it from
the date the proceeds thereof are made available to the Borrower until the
conversion or maturity thereof (whether by acceleration or otherwise) at a rate
per annum which shall be equal to the sum of the Applicable Margin plus the Base
Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Loan made to it from the date of the
Borrowing thereof until the conversion or maturity thereof (whether by
acceleration or otherwise) at a rate per annum which shall, during each Interest
Period applicable thereto, be equal to the sum of the Applicable Margin plus the
Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount payable
hereunder shall, in each case, bear interest at a rate per annum equal to the
greater of (x) 2% per annum in excess of the rate otherwise applicable to Base
Rate Loans of the respective Tranche of Loans from time to time (or, if such
overdue amount is not interest or principal in respect of a Loan, 2% per annum
in excess of the rate otherwise applicable to Base Rate Loans which are
Revolving Loans from time to time) and (y) the rate which is 2% in excess of the
rate then borne by such Loans, in each case with such interest to be payable on
demand.
(d) Accrued (and theretofore unpaid) interest shall be payable
(i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly
Payment Date, (ii) in respect of each Eurodollar Loan, on the last day of each
Interest Period applicable thereto, (iii) in respect of any Eurodollar Loan, on
any repayment, prepayment or conversion date (on the amount prepaid or
converted), and (iv) in respect of any Loan, at maturity (whether by
acceleration or otherwise).
(e) Upon each Interest Determination Date, the Administrative
Agent shall determine the interest rate applicable to Eurodollar Loans for each
Interest Period and shall promptly notify the Borrower and the Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. All Borrowings of Eurodollar Loans
shall, as selected by the Borrower, have an interest period (the "Interest
Period") of one, two, three or six months, or to the extent available to each
Lender, nine or twelve months, provided that:
(i) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date
of any conversion from a Borrowing of a different Type or continuation
of an existing Eurodollar Loan) and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period expires;
(ii) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on the
next succeeding Business Day; provided, however, that if any Interest
Period would otherwise expire on a day which is not a Business Day but
is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day;
(iv) no Interest Period may be elected at a time when a Default
under Section 9.01 or Section 9.09 or an Event of Default is then in
existence if the Administrative Agent or the Required Lenders shall
have determined in its or their sole discretion not to permit such
election;
(v) no Interest Period in respect of any Borrowing of Tranche A
Term Loans, Tranche B Term Loans or Tranche C Term Loans, as the case
may be, shall be selected which extends beyond any date upon which a
mandatory repayment of such Tranche of Term Loans will be required to
be made under Section 4.02(d), (e) or (f), as the case may be, if the
aggregate principal amount of Tranche A Term Loans, Tranche B Term
Loans or Tranche C Term Loans, as the case may be, which have Interest
Periods which will expire after such date will be in excess of the
aggregate principal amount of Tranche A Term Loans, Tranche B Term
Loans or Tranche C Term Loans, as the case may be, then outstanding
less the aggregate amount of such required prepayment; and
(vi) no Interest Period in respect of any Borrowing of any
Tranche of Loans shall extend beyond the respective Maturity Date for
such Tranche of Loans.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect a new Interest Period to be
applicable to such Borrowing as provided above (or is not permitted to elect an
Interest Period by virtue of the application of clause (iv) above), the Borrower
shall be deemed to have elected to convert such Borrowing into a Borrowing of
Base Rate Loans effective as of the expiration date of such current Interest
Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that
any Lender shall have determined (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto but, with
respect to clause (i) below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any
changes arising after the date of this Agreement affecting the
interbank Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for in
the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs
or reductions in the amounts received or receivable hereunder with
respect to any Eurodollar Loan because of (x) any change since the date
of this Agreement in any applicable law or governmental rule,
regulation, order or guideline, or any request or directive (whether or
not having the force of law) by any Governmental Authority (including
any central bank, Superintendent of Financial Institutions or other
comparable authority or agency) (whether or not having the force of
law) or in the interpretation or administration thereof and including
the introduction of any new law or governmental rule, regulation,
order, guideline or request, such as, for example, but not limited to:
(A) a change in the basis of taxation of payment to such Lender of the
principal of or interest on such Eurodollar Loan or any other amounts
payable hereunder (except for changes in the rate of tax on, or
determined by reference to, the net income or profits of such Lender,
or any franchise tax based on the net income or profits of such Lender,
in either case pursuant to the laws of the United States of America,
the jurisdiction in which it is incorporated or organized or in which
its principal office or applicable lending office is located or any
subdivision thereof or therein), but without duplication of any amounts
payable in respect of Taxes pursuant to Section 4.04(a), or (B) a
change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate and/or (y) other circumstances since
the date of this Agreement affecting such Lender or the interbank
Eurodollar market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan by such Lender has been made (x) unlawful by any law or
governmental rule, regulation or order, (y) impossible by compliance by
such Lender in good faith with any governmental request (whether or not
having force of law) or (z) impracticable as a result of a contingency
occurring after the date of this Agreement which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent, in the
case of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of
Conversion/Continuation given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower shall, subject to the provisions of Section 12.15 (to the extent
applicable) pay to such Lender, within 15 days after written demand therefor,
such additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in its sole
discretion shall determine) as shall be required to compensate such Lender for
such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to such Lender, showing the
basis for the calculation thereof, submitted to the Borrower by such Lender in
good faith shall, absent manifest error, be final and conclusive and binding on
all the parties hereto) and (z) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in Section 1.10(b) as promptly as
possible and, in any event, within the time period required by law. Each of the
Administrative Agent and each Lender agrees that if it gives notice to the
Borrower of any of the events described in clause (i) or (iii) above, it shall
promptly notify the Borrower and, in the case of any such Lender, the
Administrative Agent, if such event ceases to exist. If any such event described
in clause (iii) above ceases to exist as to a Lender, the obligations of such
Lender to make Eurodollar Loans and to convert Base Rate Loans into Eurodollar
Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 1.10(a)(iii) shall) either (x) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent notice by telephone, telecopy,
telex, facsimile or cable, immediately confirmed in writing if by telephone, on
the same date that the Borrower was notified by the affected Lender or the
Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days'
written notice to the Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan, provided that, if more than
one Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 1.10(b).
(c) If at any time after the date of this Agreement any Lender
determines that the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law) concerning capital adequacy, or any change in
interpretation or administration thereof by any Governmental Authority
(including any central bank, Superintendent of Financial Institutions or other
comparable authority or agency) will have the effect of increasing the amount of
capital required or expected to be maintained by such Lender or any corporation
controlling such Lender based on the existence of such Lender's Commitment
hereunder or its obligations hereunder, then the Borrower shall, subject to the
provisions of Section 12.15 (to the extent applicable), pay to such Lender, upon
its written demand therefor, such additional amounts as shall be required to
compensate such Lender or such other corporation for the increased cost to such
Lender or such other corporation or the reduction in the rate of return to such
Lender or such other corporation as a result of such increase or reduction of
capital as the case may be. In determining such additional amounts, each Lender
will act reasonably and in good faith and will use averaging and attribution
methods which are reasonable, provided that such Lender's reasonable good faith
determination of compensation owing under this Section 1.10(c) shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
Each Lender, upon determining that any additional amounts will be payable
pursuant to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall show the basis for calculation of such additional
amounts.
1.11 Compensation. The Borrower shall, subject to the
provisions of Section 12.15 (to the extent applicable), compensate each Lender,
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its Eurodollar Loans (but excluding any loss of anticipated
profits) which such Lender may sustain: (i) if for any reason (other than a
default by such Lender or the Administrative Agent) a Borrowing of, or
conversion from or into, Eurodollar Loans does not occur on a date specified
therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether
or not withdrawn by the Borrower or deemed withdrawn pursuant to Section
1.10(a)); (ii) if any repayment or conversion of any of its Eurodollar Loans
occurs on a date which is not the last day of the Interest Period with respect
thereto; (iii) if any prepayment of any of its Eurodollar Loans is not made on
any date specified in a notice of prepayment given by the Borrower; or (iv) as a
consequence of (x) any other default by the Borrower to repay its Eurodollar
Loans when required by the terms of this Agreement or any Note held by such
Lender or (y) any election made pursuant to Section 1.10(b).
1.12 Change of Applicable Lending Office. Each Lender agrees
that, upon the occurrence of any event giving rise to the operation of Section
1.10(a)(ii) or (iii), 1.10(c), 2.05 or 4.04 with respect to such Lender, it
will, if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Loans or Letters of Credit affected by such event, provided that such
designation is made on such terms that such Lender and its applicable lending
office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the rights of any Lender provided in Sections
1.10, 2.05 and 4.04.
1.13 Replacement of Lenders. (x) If any Lender becomes a
Defaulting Lender or otherwise defaults in its obligations hereunder, (y) upon
the occurrence of any event giving rise to the operation of Section 1.10(a)(ii)
or (iii), 1.10(c), 2.05 or 4.04 with respect to any Lender which results in such
Lender charging to the Borrower increased costs in excess of those being
generally charged by the other Lenders or (z) as provided in Section 12.11(b) in
the case of certain refusals by a Lender to consent to certain proposed changes,
waivers, discharges or terminations with respect to this Agreement which have
been approved by the Required Lenders, the Borrower shall have the right, if no
Default or Event of Default will exist immediately after giving effect to the
respective replacement, to replace such Lender (the "Replaced Lender") with one
or more other Eligible Transferee or Transferees, none of whom shall constitute
a Defaulting Lender at the time of such replacement (collectively, the
"Replacement Lender") reasonably acceptable to the Administrative Agent,
provided that (i) at the time of any replacement pursuant to this Section 1.13,
the Replacement Lender shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 12.04(b) (and with all fees payable pursuant to
said Section 12.04(b) to be paid at such time) pursuant to which the Replacement
Lender shall acquire all of the Commitments and outstanding Loans (or in the
case of the replacement of only (a) the Revolving Loan Commitment, the Revolving
Loan Commitment and outstanding Revolving Loans or (b) the outstanding Term
Loans of one or more Tranches, the outstanding Term Loans of the respective
Tranche or Tranches) of, and in each case (except for the replacement of only
the outstanding Term Loans of one or more Tranches of the respective Lender)
participations in Letters of Credit by, the Replaced Lender and, in connection
therewith, shall pay to (x) the Replaced Lender in respect thereof an amount
equal to the sum of (A) an amount equal to the principal of, and all accrued
interest on, all outstanding Loans (or in the case of the replacement of only
(I) the Revolving Loan Commitment, the outstanding Revolving Loans or (II) the
Term Loans of one or more Tranches, the outstanding Term Loans of such Tranche
or Tranches) of the Replaced Lender, (B) except in the case of the replacement
of only the outstanding Term Loans of one or more Tranches of a Replaced Lender,
an amount equal to all Unpaid Drawings that have not been repaid that have been
funded by (and not reimbursed to) such Replaced Lender, together with all then
unpaid interest with respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant to
Section 3.01 or participation in any Swingline Loan and (y) the Administrative
Agent an amount equal to such Replaced Lender's Proportionate Share (for this
purpose, determined as if the adjustment described in clause (y) of the
immediately succeeding sentence had been made with respect to such Replaced
Lender) of any Unpaid Drawing (which at such time remains an Unpaid Drawing that
has not been repaid) or participation in any Swingline Loan to the extent such
amount was not theretofore funded by such Replaced Lender, and (ii) all
obligations of the Borrower owing to the Replaced Lender (other than those (a)
specifically described in clause (i) above in respect of which the assignment
purchase price has been, or is concurrently being, paid or (b) relating to any
Tranche of Loans and/or Commitments of the respective Replaced Lender which will
remain outstanding after giving effect to the respective replacement) shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above and, if so
requested by the Replacement Lender, delivery to the Replacement Lender of the
appropriate Note or Notes executed by the Borrower, (x) the Replacement Lender
shall become a Lender hereunder and, unless the respective Replaced Lender
continues to have outstanding Term Loans or a Revolving Loan Commitment
hereunder, the Replaced Lender shall cease to constitute a Lender hereunder,
except with respect to indemnification provisions under this Agreement
(including, without limitation, Sections 1.08, 1.10, 1.11, 2.05, 4.04, 12.01 and
12.06), which shall survive as to such Replaced Lender and (y) in the case of a
replacement of a Defaulting Lender with a Non-Defaulting Lender, the
Proportionate Shares of the Lenders shall be automatically adjusted at such time
to give effect to such replacement (and to give effect to the replacement of a
Defaulting Lender with one or more Non-Defaulting Lenders).
Section 2. Letters of Credit.
2.01 Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may, no later than 30 days prior to
the Revolving Loan Maturity Date, request that any Issuing Lender issue, at any
time and from time to time on and after the Effective Date, (x) for the account
of the Borrower and for the benefit of any holder (or any trustee,
Administrative Agent or other similar representative for any such holders) of
L/C Supportable Obligations of the Borrower or any of its Subsidiaries, a letter
of credit in the form of an irrevocable standby letter of credit in a form
customarily used by such Issuing Lender or in such other form as has been
approved by such Issuing Lender (each such letter of credit, a "Standby Letter
of Credit") in support of such L/C Supportable Obligations and (y) for the
account of the Borrower and for the benefit of sellers of goods and services to
the Borrower or any of its Subsidiaries, an irrevocable trade letter of credit
in a form customarily used by such Issuing Lender or in such other form as has
been approved by such Issuing Lender (each such letter of credit, a "Trade
Letter of Credit", and each such Trade Letter of Credit and each Standby Letter
of Credit, a "Letter of Credit") in support of commercial transactions of the
Borrower or any of its Subsidiaries. All Letters of Credit shall be issued on a
sight basis only.
(b) Letters of Credit shall be issued in Dollars.
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings at such time would exceed $10,000,000 (the "LC Sublimit"), (ii) no
Letter of Credit shall be issued the Stated Amount of which, when added to all
Letter of Credit Outstandings at such time and the aggregate outstanding
principal amount of Revolving Loans and Swingline Loans at such time, would
exceed the Total Revolving Loan Commitment (after giving effect to any reduction
thereto on such date), (iii) each Standby Letter of Credit shall have an expiry
date occurring not later than one year after such Letter of Credit's date of
issuance (although any Letter of Credit may be extendable (whether automatically
or otherwise for successive periods of up to 12 months on terms acceptable to
the Issuing Lender but not beyond the fifth Business Day preceding the Revolving
Loan Maturity Date), and (iv) each Trade Letter of Credit shall have an expiry
date occurring not later than the earlier of (x) 180 days after the issuance
thereof and (y) the thirtieth Business Day preceding the Revolving Loan Maturity
Date.
(d) Each Issuing Lender may agree, in its sole discretion, and
BTCo in its capacity as an Issuing Lender hereby agrees that, in the event a
requested Letter of Credit is not issued by one of the other Issuing Lenders, it
will (subject to the terms and conditions contained herein), at any time and
from time to time on or after the Effective Date and no later than 10 days prior
to the Revolving Loan Maturity Date, following its receipt of the respective
Letter of Credit Request, issue for the account of the Borrower one or more
Letters of Credit in support of such L/C Supportable Obligations or commercial
transactions of the Borrower or its Subsidiaries as is permitted to remain
outstanding without giving rise to a Default or Event of Default hereunder;
provided that the respective Issuing Lender shall be under no obligation to
issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority
or arbitrator shall purport by its terms to enjoin or restrain such
Issuing Lender from issuing such Letter of Credit or any requirement of
law applicable to such Issuing Lender or any request or directive
(whether or not having the force of law) from any governmental
authority with jurisdiction over such Issuing Lender shall prohibit, or
request that such Issuing Lender refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Lender with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which such
Issuing Lender is not otherwise compensated) not in effect on the date
hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Issuing Lender as of the date
hereof and which such Issuing Lender in good faith deems material to
it;
(ii) such Issuing Lender shall have received notice from any
Lender prior to the issuance of such Letter of Credit of the type
described in the penultimate sentence of Section 2.02(b)or
(iii) a Lender Default exists, unless the Issuing Lender has
entered into arrangements satisfactory to it and the Borrower to
eliminate the Issuing Lender's risk with respect to the participation
in Letters of Credit of the relevant Defaulting Lender or Lenders,
including by cash collateralizing such Defaulting Lender's or Lenders'
Proportionate Share of the Letter of Credit Outstandings.
2.02 Letter of Credit Requests. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the respective Issuing Lender at least three
Business Days' (or such shorter period as is acceptable to the respective
Issuing Lender) by facsimile written notice thereof. Each notice shall be in the
form of Exhibit C (each a "Letter of Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.01(c). Unless the respective Issuing Lender has received notice
from any Lender before it issues a Letter of Credit that one or more of the
conditions specified in Section 5 are not then satisfied, or that the issuance
of such Letter of Credit would violate Section 2.01(c), then such Issuing Lender
may issue the requested Letter of Credit for the account of the Borrower in
accordance with such Issuing Lender's usual and customary practices. Upon its
issuance or amendment of any Standby Letter of Credit, the Issuing Lender shall
promptly notify the Borrower and the Administrative Agent, in writing, of such
issuance or amendment, which notice shall be accompanied by a copy of such
issuance or amendment. Upon receipt of such notice, the Administrative Agent
shall promptly notify each Lender of such issuance or amendment, which notice
shall be accompanied, if requested by any Lender, by a copy of such issuance or
amendment.
2.03 Letter of Credit Participations. (a) Immediately upon the
issuance by any Issuing Lender of any Letter of Credit, such Issuing Lender
shall be deemed to have sold and transferred to each Lender with a Revolving
Loan Commitment, other than such Issuing Lender (each such Lender, in its
capacity under this Section 2.03, a "Participant"), and each such Participant
shall be deemed irrevocably and unconditionally to have purchased and received
from such Issuing Lender, without recourse or warranty, an undivided interest
and participation, to the extent of such Participant's Proportionate Share in
such Letter of Credit, each drawing made thereunder and the obligations of the
Borrower under this Agreement with respect thereto (other than the Facing Fees,
which shall be for the account of the respective Issuing Lender), and any
security therefor or guaranty pertaining thereto. Upon any change in the
Revolving Loan Commitments or Proportionate Shares of the Lenders pursuant to
Section 1.13 or 12.04, it is hereby agreed that, with respect to all outstanding
Letters of Credit and Unpaid Drawings, there shall be an automatic adjustment to
the participations pursuant to this Section 2.03 to reflect the new
Proportionate Shares of the assignor and assignee Lender or of all Lenders with
Revolving Loan Commitments, as the case may be.
(b) In determining whether to pay under any Letter of Credit,
such Issuing Lender shall have no obligation relative to the other Lenders other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Issuing Lender under or in connection with
any Letter of Credit if taken or omitted in the absence of gross negligence or
willful misconduct as determined by a court of competent jurisdiction, shall not
create for such Issuing Lender any resulting liability to the Borrower or any
Lender.
(c) In the event that any Issuing Lender makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to such Issuing Lender pursuant to Section 2.04(a), such Issuing
Lender shall promptly notify the Administrative Agent, which shall promptly
notify each Participant of such failure, and each Participant shall promptly and
unconditionally pay to such Issuing Lender the amount of such Participant's
Proportionate Share of such unreimbursed payment in Dollars and in same day
funds. If the Administrative Agent so notifies, prior to 12:00 Noon (New York
City time) on any Business Day, any Participant required to fund a payment under
a Letter of Credit, such Participant shall use its best efforts to make
available to such Issuing Lender such Participant's Proportionate Share of the
amount of such payment on such Business Day in Dollars in same day funds or in
any case, no later than 3:00 P.M. New York City time on the next succeeding
Business Day. If and to the extent such Participant shall not have so made its
Proportionate Share of the amount of such payment available to such Issuing
Lender on the date of payment, such Participant agrees to pay to such Issuing
Lender, forthwith on demand such amount, together with interest thereon, for
each day from such date until the date such amount is paid to such Issuing
Lender at the overnight Federal Funds Rate. The failure of any Participant to
make available to such Issuing Lender its Proportionate Share of any payment
under any Letter of Credit shall not relieve any other Participant of its
obligation hereunder to make available to such Issuing Lender its Proportionate
Share of any Letter of Credit on the date required, as specified above, but no
Participant shall be responsible for the failure of any other Participant to
make available to such Issuing Lender such other Participant's Proportionate
Share of any such payment.
(d) Whenever any Issuing Lender receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, such Issuing Lender shall pay to each
Participant which has paid its Proportionate Share thereof, in Dollars and in
same day funds, an amount equal to such Participant's share (based upon the
proportionate aggregate amount originally funded by such Participant to the
aggregate amount funded by all Participants) of the principal amount of such
reimbursement obligation and interest thereon accruing after the payment
pursuant to clause (c) above.
(e) The obligations of the Participants to make payments to
each Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Credit Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower may have at any time against a beneficiary named in
a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Administrative
Agent, any Participant, or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions contemplated
herein or any unrelated transactions (including any underlying
transaction between the Borrower and the beneficiary named in any such
Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Credit
Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the respective Issuing Lender, by making
payment to the Administrative Agent in immediately available funds in Dollars at
the Payment Office, for any payment or disbursement made by such Issuing Lender
under any Letter of Credit (each such amount, so paid until reimbursed or repaid
with the proceeds of a Revolving Loan in accordance with the terms hereof, an
"Unpaid Drawing"), no later than three Business Days after the date of such
payment or disbursement, with interest on the amount so paid or disbursed by
such Issuing Lender, to the extent not reimbursed prior to 12:00 Noon (New York
City time) on the date of such payment or disbursement, from and including the
date paid or disbursed to but excluding the date such Issuing Lender was
reimbursed by the Borrower therefor at a rate per annum which shall be the Base
Rate in effect from time to time plus the Applicable Margin for Base Rate Loans;
provided, however, to the extent such amounts are not reimbursed prior to 12:00
Noon (New York City time) on the fifth Business Day following the notice of such
payment or disbursement, interest shall thereafter accrue on the amounts so paid
or disbursed by such Issuing Lender (and until reimbursed by the Borrower) at a
rate per annum which shall be the Base Rate in effect from time to time plus the
Applicable Margin for Base Rate Loans plus 2%, in each such case, with interest
to be payable on demand; provided further, however, that even if the conditions
to Borrowing set forth herein are not met, the Borrower may request in
accordance with Section 1.02 that the payments required to be made under this
Section 2.04(a) be made from the proceeds of a Base Rate Loan in an equivalent
amount, and, to the extent so made, the Borrower's obligations to make such
payments shall be discharged. The respective Issuing Lender shall give the
Borrower prompt notice of each Drawing under any Letter of Credit, provided that
the failure to give any such notice shall in no way affect, impair or diminish
the Borrower's obligations hereunder.
(b) The obligations of the Borrower under this Section 2.04 to
reimburse the respective Issuing Lender with respect to payments on Letters of
Credit (each, a "Drawing") (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrower may have or
have had against any Lender (including in its capacity as issuer of the Letter
of Credit or as Participant), or any nonapplication or misapplication by the
beneficiary of the proceeds of such Drawing, the respective Issuing Lender's
only obligation to the Borrower being to confirm that any documents required to
be delivered under such Letter of Credit to have been delivered and that they
substantially comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by any Issuing Lender under or
in connection with any Letter of Credit if taken or omitted in the absence of
gross negligence or willful misconduct, as determined by a court of competent
jurisdiction, shall not create for such Issuing Lender any resulting liability
to the Borrower.
2.05 Increased Costs. If at any time after the date of this
Agreement, the introduction of or any change in any applicable law, rule,
regulation, order, guideline or request or in the interpretation or
administration thereof by any Governmental Authority (including any central
bank, Superintendent of Financial Institutions or other comparable authority or
agency) charged with the interpretation or administration thereof, or compliance
by any Issuing Lender or any Participant with any request or directive by any
such authority (whether or not having the force of law), or any change in GAAP,
shall either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against letters of credit issued by any Issuing
Lender or participated in by any Participant, or (ii) impose on any Issuing
Lender or any Participant any other conditions relating, directly or indirectly,
to this Agreement or any Letter of Credit, and the result of any of the
foregoing is to increase the cost to any Issuing Lender or any Participant of
issuing, maintaining or participating in any Letter of Credit, or reduce the
amount of any sum received or receivable by any Issuing Lender or any
Participant hereunder or reduce the rate of return on its capital with respect
to Letters of Credit (except for changes in the rate of tax on, or determined by
reference to, the net income or profits of such Issuing Lender or such
Participant, or any franchise tax based on the net income or profits of such
Lender or Participant, in either case pursuant to the laws of the United States
of America, the jurisdiction in which it is organized or in which its principal
office or applicable lending office is located or any subdivision thereof or
therein), but without duplication of any amounts payable in respect of Taxes
pursuant to Section 4.04(a), then, upon demand to the Borrower by such Issuing
Lender or any Participant (a copy of which demand shall be sent by such Issuing
Lender or such Participant to the Administrative Agent) and subject to the
provisions of Section 12.15 (to the extent applicable), the Borrower shall pay
to such Issuing Lender or such Participant such additional amount or amounts as
will compensate such Lender for such increased cost or reduction in the amount
receivable or reduction on the rate of return on its capital. Any Issuing Lender
or any Participant, upon determining that any additional amounts will be payable
pursuant to this Section 2.05, will give prompt written notice thereof to the
Borrower, which notice shall include a certificate submitted to the Borrower by
such Issuing Lender or such Participant (a copy of which certificate shall be
sent by such Issuing Lender or such Participant to the Administrative Agent),
setting forth in reasonable detail the basis for the calculation of such
additional amount or amounts necessary to compensate such Issuing Lender or such
Participant. The certificate required to be delivered pursuant to this Section
2.05 shall, if delivered in good faith and absent manifest error, be final and
conclusive and binding on the Borrower. Notwithstanding the foregoing, a Lender
shall not exercise any of its rights under this Section 2.05 with respect to the
Borrower if it shall not at the time be the general policy or practice of such
Lender to exercise provisions in other credit agreements similar to this Section
2.05 against other borrowers in substantially similar circumstances.
2.06 Indemnification from Lenders. To the extent the Issuing
Lender is not reimbursed and indemnified by the Borrower, each Participant will
reimburse and indemnify the Issuing Lender in proportion to its respective
Commitment, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever (including all expenses which may be imposed on, incurred by or
asserted against the Issuing Lender in performing its duties hereunder), in any
way relating to or arising out of this Agreement; provided that no Participant
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Issuing Lender's gross negligence or willful misconduct as
determined by a court of competent jurisdiction. The agreements contained in
this Section shall survive any termination of this Agreement and the other
Credit Documents and the payment in full of the Obligations.
Section 3. Fees; Commitment; Reductions of Commitments.
3.01 Fees. (a) The Borrower agrees to pay the Administrative
Agent a commitment commission (the "Commitment Commission") for distribution to
each Non-Defaulting Lender with a Revolving Loan Commitment, for the period from
and including the Effective Date until the Revolving Loan Maturity Date (or such
earlier date as the Total Revolving Loan Commitment shall have been terminated)
computed at a rate equal to 1/2 of 1% per annum on the average Unutilized
Revolving Loan Commitment of such Non-Defaulting Lender. Accrued Commitment
Commission shall be due and payable quarterly in arrears on each Quarterly
Payment Date, and on the Revolving Loan Maturity Date (or upon such earlier date
as the Total Revolving Loan Commitment shall be terminated).
(b) The Borrower agrees to pay the Administrative Agent (i)
for pro rata distribution to each Lender with a Revolving Loan Commitment (based
upon their respective Proportionate Shares) a fee in respect of each Letter of
Credit (the "Letter of Credit Fee") for the period from and including the date
of issuance of such Letter of Credit through the Termination Date of such Letter
of Credit, computed at the rate equal to the Applicable Margin for Revolving
Loans maintained as Eurodollar Loans per annum on the daily Stated Amount of
such Letter of Credit, and (ii) a fee for the account of each Issuing Lender in
respect of each Letter of Credit issued by it (the "Facing Fee"), for the period
from and including the date of issuance of such Letter of Credit through the
Termination Date of such Letter of Credit, computed at the rate equal to (A) in
the case of Standby Letters of Credit, 0.25% per annum on the daily Stated
Amount of such Standby Letters of Credit and (B) in the case of Trade Letters of
Credit, 0.25% per annum on the daily Stated Amount of such Trade Letter of
Credit; provided that in no event shall the annual Facing Fee with respect to
any Letter of Credit be less than $500. Accrued Letter of Credit and Facing Fees
shall be due and payable quarterly in arrears on each Quarterly Payment Date and
on the first date on and after the Revolving Loan Maturity Date on which no
Letters of Credit remain outstanding.
(c) The Borrower shall pay, upon each payment under, issuance
of, or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the administrative charge which the respective Issuing Lender is
generally imposing in connection with such occurrence with respect to letters of
credit.
(d) The Borrower shall pay to the Administrative Agent, for
its own account, such fees as have been mutually agreed upon in writing by the
Administrative Agent and the Borrower.
(e) All computation of Fees shall be made in accordance with
Section 12.07(b).
3.02 Voluntary Reduction of Commitments. Upon at least one
Business Day's prior written notice (or telephonic notice confirmed in writing)
to the Administrative Agent at its Notice Office (which notice the
Administrative Agent shall promptly transmit to each of the Lenders), the
Borrower shall have the right, without premium or penalty, to permanently reduce
the Total Revolving Loan Commitment in whole or in part, in integral multiples
of $500,000, provided that (x) no such reduction shall exceed the amount of the
Aggregate Unutilized Revolving Loan Commitments as in effect immediately before
giving effect to such reduction and (y) any such reduction shall apply
proportionately to reduce (i) the Revolving Loan Commitment of each Lender that
is not a Defaulting Lender with such a Commitment and (ii) the Revolving Loan
Commitment of each Defaulting Lender as in effect prior to the time such Lender
became a Defaulting Lender.
3.03 Mandatory Reduction of Commitments. (a) The Total
Commitments (and the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment, the Tranche C Term Loan Commitment and the Revolving Loan Commitment
of each Lender) shall terminate in their entirety on December 31, 1999 unless
the Effective Date shall have occurred on or prior to such date.
(b) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche A Term Loan Commitment (and the
Tranche A Term Loan Commitment of each Lender) shall terminate in its entirety
on the Effective Date (after giving effect to the making of the Tranche A Term
Loans on such date).
(c) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche B Term Loan Commitment (and the
Tranche B Term Loan Commitment of each Lender) shall terminate in its entirety
on the Effective Date (after giving effect to the making of the Tranche B Term
Loans on such date).
(d) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Tranche C Term Loan Commitment (and the
Tranche C Term Loan Commitment of each Lender) shall terminate in its entirety
on the Effective Date (after giving effect to the making of the Tranche C Term
Loans on such date).
(e) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, the Total Revolving Loan Commitment (and the
Revolving Loan Commitment of each Lender) shall terminate in its entirety on the
earlier of (x) the Revolving Loan Maturity Date and (y) unless the Required
Lenders otherwise consent, on the date of any Change of Control.
(f) In addition to any other mandatory commitment reductions
pursuant to this Section 3.03, on each date upon which a mandatory repayment of
Term Loans pursuant to any of Sections 4.02(A)(g) through (k), inclusive, is
required (and exceeds in amount the aggregate principal amount of Term Loans
then outstanding) or would be required if Term Loans were then outstanding, the
Total Revolving Loan Commitment shall be permanently reduced by the amount, if
any, by which the amount required to be applied pursuant to said Sections
(determined as if an unlimited amount of Term Loans were actually outstanding)
exceeds the aggregate principal amount of Term Loans then outstanding.
(g) Each reduction to the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment, the Total Tranche C Term
Loan Commitment and the Total Revolving Loan Commitment pursuant to this Section
3.03 shall be applied proportionately to reduce the Tranche A Term Loan
Commitment, the Tranche B Term Loan Commitment, the Total Tranche C Term Loan
Commitment or the Revolving Loan Commitment, as the case may be, of each Lender
with such a Commitment.
Section 4. Prepayments; Payments.
4.01 Voluntary Prepayments. (a) The Borrower shall have the
right to prepay Loans, without premium or penalty, in whole or in part from time
to time on the following terms and conditions: (i) the Borrower shall give the
Administrative Agent notice, in writing or by telephone, confirmed in writing,
of its intent to make a prepayment (x) prior to 2 P.M. (New York City time) at
its Notice Office at least three Business Days prior to the date of such
prepayment in the case of Eurodollar Loans and (y) prior to 12 Noon (New York
City time) at its Notice Office at least one Business Day prior to the date of
such prepayment in the case of Base Rate Loans (or same day notice in the case
of Swingline Loans, provided such notice is given prior to 12:00 Noon (New York
City time), which notice in each case shall indicate whether Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans or Revolving Loans shall be
prepaid, the amount of such prepayment and the Types of Loans to be prepaid and,
in the case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant
to which made, which notice the Administrative Agent shall promptly transmit to
each of the Lenders; and (ii) each partial prepayment of any Borrowing shall be
in an aggregate principal amount of at least the Minimum Borrowing Amount, if
applicable, with respect thereto, provided that no partial prepayment of
Eurodollar Loans shall reduce the outstanding Eurodollar Loans made pursuant to
a Borrowing to an amount less than the Minimum Borrowing Amount with respect
thereto. Each prepayment pursuant to this Section 4.01 in respect of any Loans
made pursuant to a Borrowing shall be applied pro rata among the Lenders making
such Loans, provided that no such prepayment shall be applied to any Loans of a
Defaulting Lender at any time when the Loans of any Non-Defaulting Lender
exceeds such Non-Defaulting Lender's Proportionate Share of all Loans then
outstanding. Prepayments of Eurodollar Loans made pursuant to this Section 4.01
on any day other than the last day of an Interest Period applicable thereto
shall be accompanied by the amounts required under Section 1.11.
(b) Each amount required to be applied to Term Loans pursuant
to this Section 4.01 shall be applied pro rata to each Tranche of Term Loans
based upon the then remaining principal amounts of the respective Tranches (with
each Tranche of Term Loans to be allocated that percentage of the amount to be
applied as is equal to a fraction (expressed as a percentage) the numerator of
which is the then outstanding principal amount of such Tranche of Term Loans and
the denominator of which is equal to the then outstanding principal amount of
all Term Loans). The amount of each principal repayment of Term Loans made
pursuant to this Section 4.01 shall be applied to reduce the then remaining
Scheduled Repayments of the respective Tranche of Term Loans pro rata based upon
the then remaining principal amounts of the Scheduled Repayments of the
respective Tranche of Term Loans after giving effect to all prior reductions
thereto until all Term Loans are repaid in full.
4.02 Mandatory Prepayments.
(A) Requirements. (a) If on any date (and after giving effect
to all other repayments on such date) the sum of the aggregate outstanding
principal amount of Revolving Loans and Swingline Loans, plus the Letter of
Credit Outstandings exceeds the Total Revolving Loan Commitment as then in
effect, the Borrower shall repay on such date the principal of Swingline Loans
and, if no Swingline Loans are or remain outstanding, Revolving Loans of
Non-Defaulting Lenders as is equal to such excess. If, after giving effect to
the prepayment of all outstanding Revolving Loans and Swingline Loans, the
Letter of Credit Outstandings exceed the Total Revolving Loan Commitment as then
in effect, the Borrower shall pay to the Administrative Agent an amount in cash
and/or Cash Equivalents equal to 105% of such excess and the Administrative
Agent shall hold such payment in an account established at BTCo in the name of
the Administrative Agent for the benefit of the Lenders (and not release same,
except as such excess is reduced) as security for the obligations of the
Borrower.
(b) If on any date the sum of the outstanding principal amount
of the Revolving Loans made by a Defaulting Lender exceeds the Revolving Loan
Commitment of such Defaulting Lender as in effect prior to the time such Lender
became a Defaulting Lender and after giving effect to any reduction of the Total
Revolving Loan Commitment pursuant to Section 3.02, the Borrower shall repay the
Revolving Loans of such Defaulting Lender in an amount equal to such excess.
(c) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all then outstanding Loans of each Tranche shall be
repaid in full on the earlier of (x) the respective Maturity Date of such
Tranche (or the Swingline Expiry Date in the case of Swingline Loans) and (y)
unless the Required Lenders otherwise consent, the occurrence of a Change of
Control.
(d) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date set forth below, the Borrower shall be required
to repay that principal amount of Tranche A Term Loans, to the extent then
outstanding, as is set forth opposite such date (each such repayment, as the
same may be reduced as provided in Sections 4.01 and 4.02(B)(b), a "Tranche A
Scheduled Repayment," and each such date, a "Tranche A Scheduled Repayment
Date"):
- -------------------------------------------------- ------------------------
Tranche A
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2000 $1.25 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2000 $1.25 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2000 $1.25 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2000 $1.25 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2001 $1.875 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2001 $1.875 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2001 $1.875 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2001 $1.875 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2002 $3.125 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2002 $3.125 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2002 $3.125 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2002 $3.125 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2003 $5.625 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2003 $5.625 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2003 $5.625 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2003 $5.625 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2004 $6.875 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2004 $6.875 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2004 $6.875 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2004 $6.875 million
- -------------------------------------------------- ------------------------
(e) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date set forth below, the Borrower shall be required
to repay that principal amount of Tranche B Term Loans, to the extent then
outstanding, as is set forth opposite such date (each such repayment, as the
same may be reduced as provided in Sections 4.01 and 4.02(B)(b), a "Tranche B
Scheduled Repayment," and each such date, a "Tranche B Scheduled Repayment
Date"):
- -------------------------------------------------- ------------------------
Tranche B
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2000 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2000 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2000 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2000 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2001 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2001 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2001 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2001 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2002 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2002 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2002 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2002 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2003 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2003 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2003 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2003 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2004 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2004 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2004 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2004 $75,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2005 $7,125,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2005 $7,125,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2005 $7,125,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2005 $7,125,000
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
(f) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date set forth below, the Borrower shall be required
to repay that principal amount of Tranche C Term Loans, to the extent then
outstanding, as is set forth opposite such date (each such repayment, as the
same may be reduced as provided in Sections 4.01 and 4.02(B)(b), a "Tranche C
Scheduled Repayment," and each such date, a "Tranche C Scheduled Repayment
Date"):
- -------------------------------------------------- ------------------------
Tranche C
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2000 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2000 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2000 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2000 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2001 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2001 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2001 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2001 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2002 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2002 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2002 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2002 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2003 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2003 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2003 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2003 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2004 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2004 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2004 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2004 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2005 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2005 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2005 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2005 $237,500
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
March 31, 2006 $22.325 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
June 30, 2006 $22.325 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
September 30, 2006 $22.325 million
- -------------------------------------------------- ------------------------
- -------------------------------------------------- ------------------------
December 15, 2006 $22.325 million
- -------------------------------------------------- ------------------------
(g) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date after the Effective Date upon which the Borrower
or any of its Subsidiaries receives proceeds from the disposition of assets, an
amount equal to 100% of the Net Sale Proceeds from such disposition of any
assets (other than (i) such dispositions the Net Sale Proceeds of which are less
than $100,000 per disposition, (ii) dispositions which are not excluded under
clause (i), the Net Sale Proceeds of which not to exceed $5 million in any
fiscal year of the borrower and (iii) dispositions permitted under Section
8.02(ii), (iv), (v) and (viii)) of the Borrower or any of its Subsidiaries shall
be applied contemporaneously with the closing of such disposition to repay the
outstanding Term Loans in accordance with the requirements of Section
4.02(B)(b);
(h) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date after the Effective Date upon which the Borrower
or any of its Subsidiaries receives any proceeds from any sale or issuance of
its equity (other than proceeds received (i) from the exercise of stock options
granted to management, employees or directors as permitted hereunder, so long as
the aggregate amount of cash proceeds pursuant to this clause does not exceed $1
million during any fiscal year of the Borrower, (ii) from the exercise of the
warrants issued pursuant to the Reorganization Plan or in connection with the
Senior Secured Second Lien Notes (the "Warrants") or (iii) from issuances of
equity among the Credit Parties) an amount equal to 100% of the cash proceeds of
the respective sale or issuance (net of underwriting discounts, fees and
commissions and other direct costs and expenses associated therewith, including,
without limitation, legal fees and expenses), shall be applied as a mandatory
repayment of principal of outstanding Term Loans in accordance with the
requirements of Section 4.02(B)(b).
(i) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each date after the Effective Date upon which the Borrower
or any of its Subsidiaries receives any proceeds from any incurrence by the
Borrower or any of its Subsidiaries of Indebtedness for borrowed money (other
than Indebtedness permitted under Section 8.04), an amount equal to the cash
proceeds (net of underwriting discounts, fees and commissions and other costs
and expenses associated therewith including, without limitation, legal fees and
expenses) of the respective incurrence of Indebtedness shall be applied as a
mandatory repayment of principal of outstanding Term Loans in accordance with
the requirements of Section 4.02(B)(b).
(j) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, within 10 days following
each date after the Effective Date on which the Borrower or any of its
Subsidiaries receives any proceeds from any Recovery Event ("Insurance
Proceeds"), an amount equal to 100% of the proceeds of such Recovery Event (net
of (x) reasonable cost of repairs and expenses including, without limitation,
reasonable legal costs and expenses, and taxes incurred in connection with such
Recovery Event and (y) any required repayment of Indebtedness encumbering the
asset which is the subject of such Recovery Event) shall be applied as a
mandatory repayment of principal of outstanding Term Loans in accordance with
the requirements of Sections 4.02(B)(b); provided that so long as no Default or
Event of Default then exists and such proceeds from such Recovery Event do not
exceed $5,000,000, such Insurance Proceeds shall not be required to be so
applied on such date to the extent that the Borrower has delivered a certificate
to the Administrative Agent on or prior to such date stating that such Insurance
Proceeds shall be used to replace or restore any properties or assets in respect
of which such Insurance Proceeds were paid within 180 days following the date of
receipt of such Insurance Proceeds (which certificate shall set forth the
estimates of the Insurance Proceeds so expended). Any such Insurance Proceeds
not so used to replace assets within the 180 day period described above shall be
used to repay Term Loans as required under this Section 4.02(A)(j).
(k) In addition to any other mandatory repayments pursuant to
this Section 4.02, on each Excess Cash Payment Date, an amount equal to 75% (50%
at any time the Leverage Ratio is 3.0:1.0 or lower) of the Excess Cash Flow for
the relevant Excess Cash Payment Period shall be applied as a mandatory
repayment of principal of outstanding Term Loans in accordance with the
requirements of Sections 4.02(B)(b).
(B) Application. (a) With respect to each prepayment of Loans
required pursuant to this Section 4.02, the Borrower may designate the Types of
Loans of the respective Tranche which are to be prepaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings of the respective Tranche
pursuant to which made, provided that: (i) if any prepayment of Eurodollar Loans
made pursuant to a single Borrowing shall reduce the outstanding Loans made
pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount
applicable thereto, such Borrowing shall immediately be converted into Base Rate
Loans; (ii) each prepayment in respect of any Loans made pursuant to a Borrowing
shall be applied pro rata among the Lenders making such Loans; (iii)
notwithstanding the provisions of the preceding clause (ii), no prepayments made
pursuant to the first sentence of Section 4.02(A)(a) shall be applied to the
Revolving Loans of a Defaulting Lender and (iv) prepayments of Eurodollar Loans
made pursuant to this Section 4.02 on any day other than the last day of an
Interest Period applicable thereto (the "Affected Eurodollar Loans") shall be
accompanied by the amounts required under Section 1.11; provided that the
Borrower may, in lieu of making any payment required under Section 1.11 as a
result of prepaying any Eurodollar Loan on a day other than the last day of the
applicable Interest Period under this Section 4.02, initially deposit a portion
(up to 100%) of the amounts that otherwise would have been paid in respect of
the Affected Eurodollar Loans with the Administrative Agent (which deposit must
be equal in amount to the amount of the Affected Eurodollar Loans not
immediately prepaid) to be held as security for the obligations of the Borrower
hereunder pursuant to a cash collateral arrangement satisfactory to the
Administrative Agent, which shall provide for investments satisfactory to the
Administrative Agent, with such cash collateral to be directly applied upon the
first occurrence (or occurrences) thereafter of the last day of the Interest
Period applicable to the Affected Eurodollar Loans (or such earlier date or
dates as shall be requested by the Borrower), to repay an aggregate principal
amount of such Loans equal to the Affected Eurodollar Loans not initially
prepaid pursuant to this sentence. Notwithstanding anything to the contrary
contained in the immediately preceding clause (iv), all amounts deposited as
cash collateral pursuant to the immediately preceding sentence shall be held for
the sole benefit of the Lenders whose Loans would otherwise have been
immediately prepaid with the amounts deposited and upon the taking of any action
by the Administrative Agent or the Lenders pursuant to the remedial provisions
of Section 9, any amounts held as cash collateral pursuant to this Section
4.02(B) shall, subject to the requirements of applicable law, be immediately
applied to repay Loans. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion.
(b) Each amount required to be applied to Term Loans pursuant
to Section 4.02(A)(d), (e), (f), (g), (h), (i), (j) and (k) shall be applied pro
rata to each Tranche of Term Loans based upon the then remaining principal
amounts of the respective Tranches (with each Tranche of Term Loans to be
allocated that percentage of the amount to be applied as is equal to a fraction
(expressed as a percentage) the numerator of which is the then outstanding
principal amount of such Tranche of Term Loans and the denominator of which is
equal to the then outstanding principal amount of all Term Loans. The amount of
each principal repayment of Term Loans made as required by Sections 4.02(A)(d),
(e), (f), (g), (h), (i), (j), and (k) shall be applied (i) first to reduce the
then remaining Scheduled Repayments of the respective Tranche of Term Loans pro
rata based upon the then remaining principal amounts of the Scheduled Repayments
of the respective Tranche of Term Loans after giving effect to all prior
reductions thereto until all Term Loans are repaid in full and (ii) second, to
the extent in excess of the amount required to be applied pursuant to the
preceding clause (i), as a mandatory reduction to the Total Revolving Loan
Commitment.
(c) Notwithstanding anything to the contrary contained in this
Section 4.02, with respect to any mandatory repayments of Tranche B Term Loans
or Tranche C Term Loans (excluding Scheduled Repayments and repayments on the
Maturity Dates relating thereto) otherwise required above pursuant to this
Section 4.02, and with respect to that portion of any voluntary repayment of
Term Loans pursuant to Section 4.01 which, in accordance with the provisions of
clause (b) thereof is required to be applied to Tranche B Term Loans or Tranche
C Term Loan, if on or prior to the date the respective mandatory repayment is
otherwise required to be made pursuant to this Section 4.02 or on or prior to
the date of the respective voluntary repayment pursuant to Section 4.01, the
Borrower has given the Administrative Agent written notification that the
Borrower has elected to give each Lender with a Tranche B Term Loan or Tranche C
Term Loan the right to waive such Lender's rights to receive such repayment (the
"Waivable Repayment"), the Administrative Agent shall notify such Lenders of
such receipt and the amount of the repayment to be applied to each such Lender's
Tranche B Term Loans or Tranche C Term Loans. In the event any such Lender with
a Tranche B Term Loans or Tranche C Term Loans desires to waive such Lender's
right to receive any such Waivable Repayment in whole or in part, such Lender
shall so advise the Administrative Agent no later than 5:00 P.M. (New York City
time) three Business Days after the date of such notice from the Administrative
Agent which notice shall also include the amount the Lender desires to receive.
If the Lender does not reply to the Administrative Agent within such three
Business Day period, it will be deemed acceptance of the total payment. If the
Lender does not specify an amount it wishes to receive, it will be deemed
acceptance of 100% of the total payment. In the event that any such Lender
waives such Lender's right to any such Waivable Repayment, the Administrative
Agent shall apply 100% of the amount so waived by such Lenders to prepay the
Tranche A Term Loans in accordance with Sections 4.01 or 4.02, as the case may
be. Notwithstanding anything to the contrary contained above, (i) if one or more
Lenders waives its right to receive all or any part of any Waivable Repayment,
but less than all the Lenders holding Tranche B Term Loans or Tranche C Term
Loans waive in full their right to receive 100% of the total payment otherwise
required with respect to the Tranche B Term Loans or Tranche C Term Loans, then
of the amount actually applied to the repayment of Tranche B Term Loans or
Tranche C Term Loans of Lenders which have waived in part, but not in full,
their right to receive 100% of such repayment, shall be applied to each then
outstanding Borrowing of Tranche B Term Loans or Tranche C Term Loans on a pro
rata basis (so that each Lender holding Tranche B Term Loans or Tranche C Term
Loans shall, after giving effect to the application of the respective repayment,
maintain the same percentage (as determined for such Lender, but not the same
percentage as the other Lenders hold and not the same percentage held by such
Lender prior to repayment) of each Borrowing of Tranche B Term Loans or Tranche
C Term Loans which remains outstanding after giving effect to such application)
and (ii) the Borrower's option pursuant to this Section 4.02(B)(c) with respect
to a voluntary prepayment or mandatory prepayment shall only be applicable so
long as any Tranche A Term Loans are outstanding.
4.03 Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement or any Note
shall be made to the Administrative Agent for the account of the Lender or
Lenders entitled thereto not later than 12:00 Noon (New York City time) on the
date when due and shall be made in Dollars in immediately available funds at the
Payment Office of the Administrative Agent. Whenever any payment to be made
hereunder or under any Note shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and, with respect to payments of principal, interest shall be
payable at the applicable rate during such extension.
4.04 Net Payments. (a) All payments made by the Borrower
hereunder or under any Note will be made without setoff, counterclaim or other
defense. Except as provided in Section 4.04(b), all such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding sentence, any tax
imposed on or measured by the net income or net profits of a Lender, or any
franchise tax based on the net income or net profits of a Lender, in either case
pursuant to the laws of the United States of America or the jurisdiction in
which it is incorporated or organized or the jurisdiction in which the principal
office or applicable lending office of such Lender is located or any subdivision
thereof or therein) and all interest, penalties or similar liabilities with
respect thereto (all such non-excluded taxes, levies, imposts, duties, fees,
assessments or other charges being referred to collectively as "Taxes"). If any
Taxes are so levied or imposed, the Borrower agrees to pay the full amount of
such Taxes, and such additional amounts as may be necessary so that every
payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence of this Section 4.04(a),
then the Borrower agrees to reimburse each Lender, upon the written request of
such Lender, for taxes imposed on or measured by the net income or net profits
of such Lender, or any franchise tax based on the net income or net profits of
such Lender, in either case pursuant to the laws of the jurisdiction in which
such Lender is organized or in which the principal office or applicable lending
office of such Lender is located or under the laws of any political subdivision
or taxing authority of any such jurisdiction in which the principal office or
applicable lending office of such Lender is located and for any withholding of
income or similar taxes as such Lender shall determine are payable by, or
withheld from, such Lender in respect of such amounts so paid to or on behalf of
such Lender pursuant to the preceding sentence and in respect of any amounts
paid to or on behalf of such Lender pursuant to this sentence. The Borrower will
furnish to the Administrative Agent within 45 days after the date the payment of
any Taxes is due pursuant to applicable law certified copies of tax receipts
evidencing such payment by the Borrower. The Borrower agrees to indemnify and
hold harmless each Lender, and reimburse such Lender upon its written request,
for the amount of any Taxes so levied or imposed and paid by such Lender.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) and that makes Loans to the
Borrower agrees to deliver to the Borrower and the Administrative Agent on or
prior to the Effective Date, and each such Lender that is an assignee or
transferee of an interest under this Agreement pursuant to Section 1.13 or 12.04
(unless the respective Lender was already a Lender hereunder immediately prior
to such assignment or transfer) and that is not such a United States person
agrees to deliver to the Borrower and the Administrative Agent on or prior to
the date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying such Lender's entitlement as of such date to a
complete exemption from United States withholding tax with respect to payments
to be made under this Agreement and under any Note, or (ii) if such Lender is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i)
above, (x) a certificate substantially in the form of Exhibit D (any such
certificate, a "Section 4.04(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form W-8 (or
successor form) certifying such Lender's entitlement to a complete exemption
from United States withholding tax with respect to payments of interest to be
made under this Agreement and under any Note. In addition, each Lender described
in the preceding sentence agrees that from time to time after the Effective
Date, when a lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it will deliver to
the Borrower and the Administrative Agent two new accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor form),
or Form W-8 (or successor form) and a Section 4.04(b)(ii) Certificate, as the
case may be, and such other forms as may be required in order to confirm or
establish the entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to payments by the
Borrower under this Agreement and any Note, or it shall immediately notify the
Borrower and the Administrative Agent of its inability to deliver any such Form
or Certificate. Notwithstanding anything to the contrary contained in Section
4.04(a), but subject to Section 12.04(b) and the immediately succeeding
sentence, (x) the Borrower shall be entitled, to the extent it is required to do
so by law, to deduct or withhold income or similar taxes imposed by the United
States (or any political subdivision or taxing authority thereof or therein)
from interest, fees or other amounts payable hereunder for the account of any
Lender for US federal income tax purposes to the extent that such Lender has not
provided to the Borrower US Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall
not be obligated pursuant to Section 4.04(a) hereof to gross-up payments to be
made to a Lender in respect of income or similar taxes imposed by the United
States if (I) such Lender has not provided to the Borrower the Internal Revenue
Service Forms required to be provided to the Borrower pursuant to this Section
4.04(b) or (II) in the case of a payment, other than interest, to a Lender
described in clause (ii) above, to the extent that such forms do not establish a
complete exemption from withholding of such taxes. Notwithstanding anything to
the contrary contained in the preceding sentence or elsewhere in this Section
4.04 and except as set forth in Section 12.04(b), the Borrower agrees to pay
additional amounts and to indemnify each Lender in the manner set forth in
Section 4.04(a) (without regard to the identity of the jurisdiction requiring
the deduction or withholding) in respect of any amounts deducted or withheld by
it as described in the immediately preceding sentence as a result of any changes
that are effective after the Effective Date (or, with respect to any assignee of
any Lender, after the date on which the assignment to such assignee becomes
effective) in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes.
(c) If the Borrower pays any additional amount under this
Section 4.04 to a Lender and such Lender determines in its sole discretion that
it has actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid, such Lender shall pay to
the Borrower an amount that the Lender shall, in its sole discretion, determine
is equal to the net benefit, after tax, which was obtained by the Lender in such
year as a consequence of such refund, reduction or credit. The decision as to
whether a Lender claims any refund or credit or files any amended tax return
shall be in the sole discretion of such Lender. Nothing in this Section 4.04(c)
shall require a Lender to disclose or detail the basis of its calculation of the
amount of any tax benefit or any other amount to the Borrower or to any other
party or to disclose or provide a copy of any tax return.
(d) The provisions of this Section 4.04 are subject to the
provisions of Section 12.15 (to the extent applicable).
Section 5. Conditions Precedent.
5.01 Conditions Precedent to Initial Loans and Letters of
Credit. This Agreement shall become effective on the date (the "Effective Date")
not later than December 31, 1999 on which each of the following conditions is
satisfied:
(a) Execution of Agreement; Notes. (i) The Borrower, the
Administrative Agent and each other institution then a Lender hereunder shall
have signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Administrative Agent at its Notice Office or, in the
case of the Lenders, shall have given to the Administrative Agent telephonic
(confirmed in writing) or written notice (actually received) at such office that
the same has been signed and mailed to it and (ii) there shall have been
delivered to the Administrative Agent for the account of each of the Lenders
requesting same, the appropriate Tranche A Term Note, Tranche B Term Note,
Tranche C Term Note and/or Revolving Note executed by the Borrower and to the
Swingline Lender (if requested by it), the Swingline Note executed by the
Borrower (and/or any other Person required thereunder) in the amount, maturity
and as otherwise provided herein and as reasonably satisfactory to the
Administrative Agent.
(b) Corporate Documents; Proceedings; Officer's Certificates.
(i) The Administrative Agent shall have received from each Credit Party a
certificate, dated the Effective Date, signed by a Responsible Officer,
Secretary or Assistant Secretary of such Credit Party and attested to by the
Secretary or any Assistant Secretary of such Credit Party in the form of Exhibit
E with appropriate insertions, together with copies of the Company Documents of
each Credit Party and the resolutions of each Credit Party referred to in such
certificate, authorizing and approving the Borrowings and all other transactions
contemplated by this Agreement, and the foregoing shall be reasonably
satisfactory in form and substance to the Administrative Agent.
(ii) All Company and legal proceedings and all instruments and
agreements in connection with the transactions contemplated in this Agreement
and the other Credit Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent, and the Administrative Agent shall have
received all information and copies of all documents and papers, including
records of Company proceedings, good standing certificates and governmental
approvals, if any, which the Administrative Agent reasonably may have requested
in connection therewith, such documents and papers where appropriate to be
certified by proper corporate or governmental authorities.
(c) Opinions of Counsel. The Administrative Agent shall have
received an opinion in form and substance reasonably satisfactory, addressed to
each of the Lenders and dated the Effective Date or, as to subclauses (ii), (iv)
and (v) below, such later date as to which the Administrative Agent shall
consent in its sole discretion:
(i) from Kronish Lieb Weiner & Hellman LLP, special counsel to
the Borrower and the Subsidiary Guarantors, covering the matters set forth in
Exhibit F-1 and such other matters incident to the transactions contemplated
herein as the Administrative Agent may reasonably request,
(ii) from Dyer Ellis & Joseph, counsel to the Borrower and the
Subsidiary Guarantors, covering the matters set forth in Exhibit F-2 and such
other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request,
(iii) from Robert Lamm, Esq., General Counsel to the Borrower
and the Subsidiary Guarantors, covering the matters set forth in Exhibit F-3 and
such other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request,
(iv) from flag state counsel to the Borrower and the
Subsidiary Guarantors, covering the matters set forth in Exhibits F-4 through
F-9 and such other matters incident to the transactions contemplated herein as
the Administrative Agent may reasonably request, and
(v) from other local counsel to the Borrower the Subsidiary
Guarantors covering such matters as the Administrative Agent shall reasonably
request.
(d) Order. The Administrative Agent shall have received a copy
of an order entered by the Bankruptcy Court in the form of Exhibit G (the
"Confirmation Order"), which Confirmation Order shall be in full force and
effect and shall not have been stayed, reversed, vacated, rescinded or otherwise
modified without the prior written consent of the Administrative Agent and the
Required Lenders and shall not, except as shall be reasonably acceptable to the
Administrative Agent and the Required Lenders, be subject to any appeal which
the Administrative Agent reasonably determines may be material and adverse to
the Borrower and its Subsidiaries or the Administrative Agent and the Lenders.
(e) Payment of Fees, etc. The Borrower shall have paid all
costs, fees and expenses owing under or in connection with the Credit Documents
and the Fee Letter and due to the Administrative Agent or the Lenders on or
before the Effective Date to the extent due and notified to the Borrower
(including, without limitation, reasonable fees and expenses of counsel).
(f) Adverse Change. From December 9, 1999, nothing shall have
occurred (and the Administrative Agent shall have become aware of no facts or
conditions not previously known) which the Borrower, the Required Lenders or the
Administrative Agent shall reasonably determine has, or could reasonably be
expected to have, a Material Adverse Effect.
(g) Litigation. No litigation by any entity (private or
governmental) shall be pending or threatened (i) which could adversely affect
this Agreement or any other Credit Document or (ii) which the Borrower, the
Administrative Agent or the Required Lenders shall reasonably determine is
reasonably expected to have a Material Adverse Effect.
(h) Approvals. All necessary governmental and third party
approvals in connection with the transactions contemplated by the Credit
Documents and otherwise referred to herein shall have been obtained and remain
in effect, and all applicable waiting periods shall have expired without any
action being taken by any competent authority which restrains, prevents or
imposes, in the reasonable judgment of the Borrower, the Required Lenders or the
Administrative Agent, materially adverse conditions upon the consummation of
such transactions. Additionally, there shall not exist any judgment, order,
injunction or other restraint prohibiting or imposing material adverse
conditions upon the consummation of the transactions contemplated by the Credit
Documents.
(i) Security Agreement. Each Credit Party shall have duly
authorized, executed and delivered, the Security Agreement in the form of
Exhibit H hereto (as amended, restated, supplemented or modified from time to
time, the "Security Agreement"), which shall be in full force and effect
covering all of such Credit Party's present and future Collateral, described
therein, in each case together with:
(a) proper Financing Statements (Form UCC-1) fully executed
for filing under the UCC or other appropriate filing offices of each
jurisdiction as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported
to be created by the Security Agreement;
(b) certified copies of Requests for Information or Copies
(Form UCC-11), or equivalent reports, listing all effective financing
statements that name any Credit Party as debtor and that are filed in
the jurisdictions referred to in clause (a) above, together with copies
of such other financing statements (none of which shall cover the
Collateral except to the extent evidencing Permitted Liens or in
respect of which the Collateral Agent shall have received termination
statements (Form UCC-3) or such other termination statements as shall
be required by local law) fully executed for filing;
(c) evidence of execution for post-closing filing and
recordation of all other recordings and filings of, or with respect to,
the Security Agreement as may be necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created by such Security Agreement; and
(d) evidence that all other actions necessary or, in the
reasonable opinion of the Collateral Agent, desirable to perfect and
protect the security interests purported to be created by the Security
Agreement have been taken (it being understood and agreed that UCC
financing statements and termination statements shall be filed in the
appropriate governmental office within three Business Days after the
Effective Date).
(j) Subsidiary Guaranty. Each Subsidiary Guarantor shall have
duly authorized, executed and delivered the Subsidiary Guaranty in the form of
Exhibit I hereto (as amended, restated, supplemented or modified from time to
time, the "Subsidiary Guaranty") and the Subsidiary Guaranty shall be in full
force and effect.
(k) Pledge Agreement. Each Credit Party shall have duly
authorized, executed and delivered the Pledge Agreement in the form of Exhibit J
hereto (as amended, restated, supplemented or modified from time to time, the
"Pledge Agreement"), which shall be in full force and effect, and shall have
delivered the collateral subject thereto to the Administrative Agent, as
Pledgee, (x) endorsed in blank in the case of promissory notes and (y) together
with executed and undated stock powers, in the case of capital stock.
(l) Mortgages; Evidence of Lien; Vessel Appraisal. (i) On the
Effective Date, (x) the Borrower and each of its Subsidiaries which own any
Vessel listed on Schedule III and described as a "Mortgaged Vessel" thereon
shall have duly authorized, executed and delivered a mortgage (as modified,
amended or supplemented from time to time in accordance with the terms thereof
and hereof, the "Vessel Mortgages"), substantially in the form of Exhibit K-1
through K-5, as applicable, with respect to each of such Vessels (each, a
"Mortgaged Vessel") and (y) the Vessel Mortgages shall be effective to create in
favor of the Collateral Agent, for the benefit of the Lenders and the Agents, a
legal, valid and enforceable first priority security interest in and lien upon
such Vessels, including, without limitation, a first preferred mortgage (or
second preferred mortgage, in the case of Vessels encumbered by Permitted
Existing Liens permitted to be senior to the Liens under the Vessel Mortgages
under the terms thereof (the "Second Preferred Mortgages")) on each of the
Mortgaged Vessels. All filings, deliveries of instruments and other actions
necessary or desirable in the reasonable opinion of the Collateral Agent to
protect and preserve such security interests shall have been duly effected. The
Collateral Agent shall have received evidence thereof in form and substance
reasonably satisfactory to the Collateral Agent.
(ii) On the Effective Date, the Administrative Agent shall
have received (x) certificates of ownership showing (or confirmation updating
previously reviewed certificates and indicating) the registered ownership of
each Mortgaged Vessel and (y) the results of maritime registry searches with
respect to the Mortgaged Vessels, indicating no other liens other than Permitted
Liens and otherwise in form and substance reasonably satisfactory to the
Collateral Agent.
(iii) On the Effective Date, the Administrative Agent shall
have received appraisal reports in form and substance and from independent
appraisers satisfactory to the Administration Agent and the Required Lenders,
stating the then current fair market value of each of the Mortgaged Vessels, all
such appraisals to be conducted and made at the expense of the Borrower.
(m) Insurance Report. On or prior to the Effective Date, the
Administrative Agent shall have received a detailed report from a firm of
independent marine insurance brokers reasonably acceptable to the Administrative
Agent and the Required Lenders with respect to the insurance maintained by the
Credit Parties in connection with the Mortgaged Vessels, together with a
certificate from such broker certifying that such insurances (i) are placed with
such insurance companies and/or underwriters and/or clubs, in such amounts,
against such risks, and in such form, as are normally insured against by
similarly situated insureds and as are necessary or advisable for the protection
of the Administrative Agent as mortgagee and (ii) conform with the requirements
of the Vessel Mortgages.
(n) Collateral Assignments of Insurances. On the Effective
Date, each Credit Party shall have executed and delivered a collateral
assignment of insurance substantially in the form set forth as Exhibit L (as
amended, modified or supplemented from time to time in accordance with the terms
hereof and thereof, the "Insurance Assignment") with respect to the insurance
maintained by such Credit Party on the Mortgaged Vessels.
(o) Consummation of the Reorganization Plan. On the Effective
Date, the Reorganization Plan shall have been (or shall simultaneously be)
consummated (except to the extent distributions are to be made after the Plan
Effective Date) and become effective in accordance with its terms and applicable
law, the Plan Effective Date shall have occurred thereunder and all conditions
to such consummation shall have been satisfied or waived (with the consent of
the Administrative Agent). All settlements of litigation against, or releases of
material claims or liabilities asserted against, the Borrower or any of its
Subsidiaries (or any of their predecessors in interest) shall be in full force
and effect, shall be enforceable against the other parties thereto and shall be
irrevocable on such date.
(p) Existing Obligations and Liens. (i) Simultaneously with
the Effective Date, the commitments under the DIP Facility shall have been
terminated, and all loans thereunder, together with interest thereon, and all
other amounts owing pursuant to the DIP Facility, shall have been repaid in full
and any priority status, security interest or Liens relating thereto shall have
been released or terminated and be of no further force and effect. On the
Effective Date, either (x) all Existing Letters of Credit shall have been
terminated or returned to the issuer thereof undrawn and cancelled or (y) the
Borrower's obligations with respect to any Existing Letters of Credit which are
not terminated or returned shall be cash collateralized, and the Borrower's
obligations with respect thereto released, on terms and conditions reasonably
satisfactory to the Administrative Agent. The Administrative Agent and the
Lenders shall have received evidence in form, scope and substance reasonably
satisfactory to the Administrative Agent that the matters set forth in this
Section 5.01(p)(i) have been satisfied at such time.
(ii) On the Effective Date, all Existing Indebtedness of the
Borrower and its Subsidiaries, and all Liens securing Existing Indebtedness,
shall be evidenced by the Existing Indebtedness Agreements relating thereto and
to the extent requested, delivered to the Administrative Agent pursuant to
Section 5.01(q), and neither the Borrower nor any of its Subsidiaries shall be
obligated with respect to any other Indebtedness, nor shall the Borrower or its
Subsidiaries, or any of their respective assets or properties, be subject to
Liens (other than Permitted Liens).
(iii) On the Effective Date, all Indebtedness (other than
Existing Indebtedness) of the Released Creditors shall have been cancelled,
repaid or converted into equity and all security interests and Liens held by or
on behalf of such Released Creditors (other than to the extent securing Existing
Indebtedness) on the assets owned by the Borrower or its Subsidiaries shall have
been terminated and released, and any collateral in possession of any Released
Creditor shall have been returned to the Borrower. The Administrative Agent
shall have received evidence in form, scope and substance reasonably
satisfactory to the Administrative Agent that the matters set forth in this
Section 5.01(p)(iii) have been satisfied at such time, which may include (i)
termination statements (Form UCC-3 or the appropriate equivalent) for filing
under the UCC of each jurisdiction where a financing statement (Form UCC-1 or
the appropriate equivalent) was filed with respect to the Borrower, its
Subsidiaries and their predecessors in interest in connection with the security
interests created with respect to such Released Creditors which voted in favor
of the Reorganization Plan and the documentation related thereto and (ii) a
termination or assignment of any security interest in, or Lien on, any patents,
trademarks, copyrights, or similar interests of the Borrower, its Subsidiaries
and their predecessors in interest on which filings have been made with respect
to such Released Creditors which voted in favor of the Reorganization Plan.
(q) Material Agreements. On or prior to the Effective Date,
there shall have been made available to the Administrative Agent to the extent
requested (which copies shall be made available to the Lenders upon request)
copies, certified as true and correct by a Responsible Officer of the Borrower,
of all agreements evidencing or relating to the Existing Indebtedness
(collectively, the "Existing Indebtedness Agreements"), and any other material
agreements of the Borrower and its Subsidiaries, all of which shall be in form
and substance reasonably satisfactory to the Administrative Agent.
(r) Financial Statements. On the Effective Date, the
Administrative Agent shall have received the financial statements described in
Section 6.05 and 7.01(a) which statements shall be in form and substance, and
the results of which shall be, reasonably satisfactory to the Administrative
Agent.
(s) Solvency Certificate. On or before the Effective Date, the
Borrower shall cause to be delivered to the Administrative Agent a solvency
certificate from the Chief Financial Officer of the Borrower substantially in
the form of Exhibit M hereto, setting forth the conclusion that, after the
incurrence of all the financings contemplated herein (including without
limitation the issuance by the Borrower of the Senior Secured Second Lien
Notes), the Borrower and the Borrower and its Subsidiaries taken as a whole,
will not be insolvent and will not be rendered insolvent by the indebtedness
incurred in connection therewith, and will not be left with unreasonably small
capital with which to engage in their businesses and will not have incurred
debts beyond their ability to pay debts as they mature.
(t) Senior Secured Second Lien Notes. (i) On or prior to the
Effective Date, the Borrower shall have received gross cash proceeds of at least
$85.5 million from the issuance of the $95 million principal amount of Senior
Secured Second Lien Notes; and
(ii) On or prior to the Effective Date, there shall have been
delivered to the Administrative Agent true and correct copies of the Senior
Secured Second Lien Documents, and all of the terms and conditions of the Senior
Secured Second Lien Documents shall be reasonably satisfactory in form and
substance to the Administrative Agent and the Required Lenders.
5.02 Conditions to All Credit Events. The obligation of each
Lender to make any Loan (other than a Revolving Loan incurred to repay Unpaid
Drawings pursuant to Section 2.04(a)) and of each Issuing Lender to issue any
Letter of Credit, as the case may be, including in each case on the Effective
Date, is subject, at the time of each such Credit Event, to the satisfaction of
the following conditions:
(a) No Default. There shall exist no Default or Event of
Default.
(b) Representations and Warranties. All representations and
warranties herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Credit Event unless such
representation and warranty expressly indicates that it is being made as of any
other specific date (in which case such representation and warranty shall have
been true and correct in all material respects on such specific date).
(c) Effective Date. The Effective Date shall have occurred.
(d) Notice of Borrowing; Letter of Credit Request. In the case
of a Borrowing (excluding Swingline Loans) the Administrative Agent shall have
received a Notice of Borrowing meeting the requirements of Section 1.02(a). In
the case of a Borrowing of Swingline Loans, the Swingline Lender shall have
received the notice described in Section 1.02(b). In the case of the issuance of
a Letter of Credit, the respective Issuing Lender shall have received a Letter
of Credit Request meeting the requirements of Section 2.02.
(e) Payment of all fees, costs, expenses. All fees, costs,
expenses and other amounts then due and payable and notified to the Borrower
shall have been paid.
The acceptance of the benefits of each Credit Event shall constitute a
representation and warranty by the Borrower to each of the Lenders that all the
applicable conditions specified in this Section 5 have been satisfied as of that
time (other than conditions as to whether the Administrative Agent or any Lender
is satisfied as to any matter). All of the Notes, certificates, legal opinions
and other documents and papers referred to in this Section 5, unless otherwise
specified, shall be delivered to the Administrative Agent at its Notice Office
for the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be reasonably
satisfactory in form and substance to the Administrative Agent.
Section 6. Representations, Warranties and Agreements. In
order to induce the Lenders to enter into this Agreement and to make the Loans,
and issue (or participate in) the Letters of Credit as provided herein, the
Borrower makes the following representations, warranties and agreements as of
the Effective Date (both before and after giving effect to any Credit Event
occurring on such date), all of which shall survive the execution and delivery
of this Agreement and the Notes and the making of the Loans and issuance of the
Letters of Credit, with the occurrence of each Credit Event (other than the
incurrence of a Revolving Loan used to repay Unpaid Drawings pursuant to Section
2.04(a)) on or after the Effective Date being deemed to constitute a
representation and warranty that the matters specified in this Section 6 are
true and correct in all material respects on and as of the Effective Date and on
the date of each such Credit Event (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
6.01 Company Status. Each Credit Party (i) is a duly organized
and validly existing Company in good standing under the laws of the jurisdiction
of its incorporation or formation, (ii) has the Company power and authority to
own its property and assets and to transact the business in which it is engaged
and presently proposes to engage and (iii) is duly qualified and is authorized
to do business and is in good standing in each jurisdiction where the conduct of
its business requires such qualifications except where the failure to be so
qualified is not reasonably expected to have a Material Adverse Effect (it being
understood that the Borrower will not be qualified to do business in Florida
prior to the 20th day following the Effective Date).
6.02 Company Power and Authority. Each Credit Party has the
Company power and authority to execute, deliver and perform the terms and
provisions of each of the Credit Documents to which it is party and has taken
all necessary Company action to authorize the execution, delivery and
performance by it of each of such Credit Documents. Each Credit Party has duly
executed and delivered each of the Credit Documents to which it is party, and
each of such Credit Documents will be the legal, valid and binding obligation of
such Credit Party enforceable in accordance with its terms.
6.03 No Violation. Neither the execution, delivery or
performance by any Credit Party of the Credit Documents to which it is a party,
nor compliance by it with the terms and provisions thereof, (i) will contravene
any provision of any applicable law, statute, rule or regulation or any
applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien (except pursuant to the Security Documents) upon any of the material
properties or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of, any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other material agreement, contract or instrument, to which the
Borrower or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound or to which it may be subject, or (iii) will violate
any provision of the Certificate of Incorporation or other Company documents of
the Borrower or any of its Subsidiaries.
6.04 Governmental Approvals. Except for filings and recordings
in connection with the Security Agreement and the Pledge Agreement (which
filings shall be made on or before the third day (or the tenth day in the case
of UCC filings) following the Effective Date) and except as have been obtained
and are in effect, no order, consent, approval, license, authorization or
validation of, or filing, recording or registration with or exemption by, any
governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with, (i) the consummation
and performance by any Credit Party of the Reorganization Plan or any Credit
Document or (ii) the legality, validity, binding effect or enforceability of the
Reorganization Plan or any Credit Document.
6.05 Financial Statement; Financial Condition; Undisclosed
Liabilities; etc. (a) The consolidated statements of financial condition of the
Borrower and its Subsidiaries for the fiscal year and fiscal quarter ended on
December 31, 1998 and September 30, 1999, respectively and the related
consolidated statements of income and cash flow and changes in shareholders'
equity of the Borrower and its Subsidiaries for the fiscal year or fiscal
quarter, as the case may be, ended on such dates, copies of which have been
furnished to the Lenders prior to the Effective Date, present fairly in all
material respects the financial condition of the Borrower and its Subsidiaries
at the date of such statements of financial condition and the results of the
operations of the Borrower and its Subsidiaries for the periods covered thereby,
subject to year-end adjustments in the case of the nine month statements. All
such financial statements have been prepared in accordance with GAAP and
practices consistently applied except for the omission of footnotes, and certain
reclassifications and interim period adjustments and accruals (all of which are
of a recurring nature and none of which individually, or in the aggregate, would
be material).
(b) Since December 9, 1999 no event or circumstance has
occurred which has had, or could reasonably be expected to have, a Material
Adverse Effect.
(c) On and as of the Effective Date, the Projections have been
prepared on a basis consistent with the financial statements referred to in
Section 7.01(a), and are based on good faith estimates and assumptions believed
by the management of the Borrower to be reasonable as of the date of such
Projections, and there are no statements or conclusions in any of the
Projections which are based upon or include information known to the Borrower or
any of its Subsidiaries to be misleading in any material respect or which fail
to take into account material information regarding the matters reported therein
necessary to make such information (taken as a whole) not misleading in any
material respect, in each case as of the Effective Date. On the Effective Date,
subject to the proviso to Section 6.07 the Borrower believes that the
Projections were reasonable.
6.06 Litigation. Except as set forth in the Disclosure
Statement or in the Quarterly Report on Form 10Q for the quarter ended September
30, 1999 filed with the Securities and Exchange Commission by Hvide Marine
Incorporated, a Florida corporation and predecessor in interest to the Borrower,
there are no actions, suits or proceedings pending or, to the best knowledge of
the Borrowers, threatened that are reasonably expected to have a Material
Adverse Effect.
6.07 True and Complete Disclosure. All factual information
(taken as a whole) furnished by or on behalf of the Borrower in writing to the
Administrative Agent or any Lender (including, without limitation, all
information contained in the Disclosure Statement and the Credit Documents) for
purposes of or in connection with this Agreement, the other Credit Documents or
any transaction contemplated herein or therein is, and all other such factual
information (taken as a whole) hereafter furnished by or on behalf of the
Borrower in writing to the Administrative Agent or any Lender will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material respect
at such time in light of the circumstances under which such information was
provided; provided that with respect to the Projections and pro forma financial
information contained in the materials referenced above, the Borrower represents
only that such Projections and pro forma financial information are based upon
good faith estimates and assumptions believed by management of the Borrower to
be reasonable at the time made, it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount.
6.08 Use of Proceeds; Margin Regulations. (a) All proceeds of
Loans shall be used (i) for working capital, capital expenditures and general
corporate purposes and payment of professional fees and expenses of the Borrower
and the other Credit Parties and (ii) to refinance and repay the DIP Facility;
provided that no Revolving Loans may be used on the Effective Date to make
payments in connection with the consummation of the Reorganization Plan.
(b) No part of the proceeds of any Loan will be used by the
Borrower to purchase or carry any Margin Stock or to extend credit to others for
the purpose of purchasing or carrying any Margin Stock. Neither the making of
any Loan nor the use of the proceeds thereof will violate or be inconsistent
with the provisions of Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
6.09 Tax Returns and Payments. The Borrower and each of its
Subsidiaries has filed or caused to be filed, with the appropriate taxing
authority, all federal, state, provincial and other material returns,
statements, forms and reports for taxes (the "Returns") required to be filed by
or with respect to the income, properties or operations of the Borrower and/or
its Subsidiaries. The Returns accurately reflect in all material respects all
liability for taxes of the Borrower and its Subsidiaries for the periods covered
thereby. The Borrower and its Subsidiaries have paid all material taxes payable
by them other than (x) taxes which are not delinquent, and other than those
contested in good faith and adequately disclosed and for which adequate reserves
have been established, (y) the amount of such taxes provided by the
Reorganization Plan or (z) those that have been discharged pursuant to the
Reorganization Plan. Neither the Borrower nor any of its Subsidiaries has
received written notice of any material action, suit, proceeding, investigation,
audit, or claim now pending or, to the best knowledge of the Borrower,
threatened by any authority regarding any taxes relating to the Borrower or any
of its Subsidiaries. As of the Effective Date, neither the Borrower nor any of
its Subsidiaries has entered into an agreement or waiver or been requested to
enter into an agreement or waiver extending any statute of limitations relating
to the payment or collection of taxes of the Borrower or any of its
Subsidiaries, or is aware of any circumstances that would cause the taxable
years or other taxable periods of the Borrower or its Subsidiaries not to be
subject to the normally applicable statute of limitations.
6.10 Compliance with ERISA. To the actual knowledge of each
Responsible Officer of the Borrower who executes any Credit Document on behalf
of any Credit Party and without independent investigation: (i) each Plan (and
each related trust, insurance contract or fund) is in compliance in all material
respects with its terms and with all applicable laws, including without
limitation ERISA and the Code; each Plan (and each related trust, if any) which
is intended to be qualified under Section 401(a) of the Code has received a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sections 401(a) and 501(a) of the Code; no Reportable
Event has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
Current Liability in excess of $1.5 million; no Plan which is subject to Section
412 of the Code or Section 302 of ERISA has an accumulated funding deficiency,
within the meaning of such sections of the Code or ERISA, or has applied for or
received a waiver of an accumulated funding deficiency or an extension of any
amortization period, within the meaning of Section 412 of the Code or Section
303 or 304 of ERISA; all contributions required to be made with respect to a
Plan have been or will be timely made; neither the Borrower nor any Subsidiary
of the Borrower nor any ERISA Affiliate has incurred any liability (including
any indirect, contingent or secondary liability) pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971 or 4975 of the Code or expects to incur any such
liability under any of the foregoing sections; no condition exists which
presents a risk to the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate of incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code; no proceedings have been instituted
to terminate or appoint a trustee to administer any Plan which is subject to
Title IV of ERISA; no action, suit, proceeding, hearing, audit or investigation
with respect to the administration, operation or the investment of assets of any
Plan (other than routine claims for benefits) is pending, expected or
threatened; using actuarial assumptions and computation methods consistent with
Part 1 of Subtitle E of Title IV of ERISA, the aggregate liabilities of the
Borrower and its Subsidiaries and their ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of the most recent Credit Event, would
not exceed $200,000; each group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees
or former employees of the Borrower, any Subsidiary of the Borrower, or any
ERISA Affiliate has at all times been operated in compliance with the provisions
of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no
lien imposed under the Code or ERISA on the assets of the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate exists or is likely to arise
on account of any Plan; and the Borrower and its Subsidiaries do not maintain or
contribute to any employee welfare benefit plan (as defined in Section 3(1) of
ERISA) which provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any Plan,
(ii) each Foreign Pension Plan has been maintained in
compliance in all material respects with its terms and with the requirements of
any and all applicable laws, statutes, rules, regulations and orders and has
been maintained, where required, in good standing with applicable regulatory
authorities; all contributions required to be made with respect to a Foreign
Pension Plan have been timely made; neither the Borrower nor any of its
Subsidiaries has incurred any obligation in connection with the termination of
or withdrawal from any Foreign Pension Plan; the present value of the accrued
benefit liabilities (whether or not vested) under each Foreign Pension Plan,
determined as of the end of the Borrower's most recently ended fiscal year on
the basis of actuarial assumptions, each of which is reasonable, did not exceed
the current value of the assets of such Foreign Pension Plan allocable to such
benefit liabilities, and
(iii) notwithstanding anything to the contrary in this Section
6.10, the representations made in this Section 6.10 shall only be untrue if the
aggregate effect of all failures and non-compliances of the types described
above could reasonably be expected to, either individually or in the aggregate,
have a Material Adverse Effect.
6.11 Ownership; Subsidiaries. On the Effective Date, the
Borrower has no direct or indirect Subsidiaries other than the Subsidiaries
listed on Schedule II.
6.12 Compliance with Statutes, etc. The Borrower and each of
its Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its businesses and the
ownership of its property, except such noncompliances as could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.13 Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is an "investment company" or a company controlled by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
6.14 Environmental Matters. (a) To the actual knowledge of
each Responsible Officer of the Borrower who executes any Credit Document on
behalf of any Credit Party and without independent investigation: (i) the
Borrower and each of its Subsidiaries have complied with, and on the date of
each Credit Event will be in compliance with, all applicable Environmental Laws
and the requirements of any permits issued under such Environmental Laws, (ii)
there are no pending or threatened Environmental Claims against the Borrower or
any of its Subsidiaries or any Real Property owned or operated by the Borrower
or any of its Subsidiaries, (iii) there are no facts, circumstances, conditions
or occurrences with respect to the business or operations of the Borrower or any
Real Property at any time owned or operated by the Borrower or any of its
Subsidiaries or any property adjoining or in the vicinity of any such Real
Property that could reasonably be expected to form the basis of an Environmental
Claim against the Borrower or any of its Subsidiaries or any such Real Property,
or to cause any such currently owned Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real
Property by the Borrower or any of its Subsidiaries under any applicable
Environmental Law.
(b) To the actual knowledge of each Responsible Officer of the
Borrower who executes any Credit Document on behalf of any Credit Party and
without independent investigation: (i) Hazardous Materials have not at any time
been generated, used, treated or stored on, or transported to or from, any Real
Property owned or operated by the Borrower or any of its Subsidiaries where such
generation, use, treatment or storage has violated or could reasonably be
expected to violate any Environmental Law in such a manner so as to cause this
representation to be untrue; or (ii) Hazardous Materials have not at any time
been Released on or from any Real Property owned or operated by the Borrower or
any of its Subsidiaries where such Release has violated or could reasonably be
expected to violate any applicable Environmental Law in such a manner so as to
cause this representation to be untrue.
(c) Notwithstanding anything to the contrary in this Section
6.14, the representations and warranties made in this Section 6.14 shall not be
untrue unless the effect of any or all violations, claims, restrictions,
failures and noncompliances of the types described above in this Section 6.14
could reasonably be expected to, either individually or in the aggregate, have a
Material Adverse Effect.
6.15 Labor Relations. To the actual knowledge of each
Responsible Officer of the Borrower who executes any Credit Document on behalf
of any Credit Party and without independent investigation: (a) neither the
Borrower nor any of its Subsidiaries is engaged in any unfair labor practice
that could reasonably be expected to have a Material Adverse Effect; and (b)
there is (i) no unfair labor practice complaint pending against the Borrower or
any of its Subsidiaries or threatened against any of them, before the National
Labor Relations Board, and no material grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Borrower or any of its Subsidiaries or threatened against any of
them, (ii) no strike, labor dispute, slowdown or stoppage pending against the
Borrower or any of its Subsidiaries or threatened against the Borrower or any of
its Subsidiaries and (iii) no union representation proceeding pending with
respect to the employees of the Borrower or any of its Subsidiaries, except
(with respect to any matter specified in clause (i), (ii) or (iii) above, either
individually or in the aggregate) such as has had, or could not reasonably be
expected to have a Material Adverse Effect.
6.16 Patents, Licenses, Franchises and Formulas. The Borrower
and each of its Subsidiaries owns or is licensed to use all material patents,
trademarks, permits, service marks, trade names, copyrights, licenses,
franchises and formulas, or rights with respect to the foregoing, and has
obtained assignments of all material leases and other rights of whatever nature,
reasonably necessary for the present conduct of its business, without any known
conflict with the rights of others which, or the failure to obtain or so own
which, as the case may be, has had, or could reasonably be expected to have, a
Material Adverse Effect.
6.17 Year 2000 Representation. The Borrower (i) has undertaken
a review of the areas within its respective businesses and operations and those
of its subsidiaries that could be adversely affected by the Year 2000 Problem,
(ii) has developed a plan to address the Year 2000 Problem and (iii) is taking
actions necessary to meet the schedule and the goals of its plan to address the
Year 2000 Problem and such actions have not had, or could not reasonably be
expected to have, a Material Adverse Effect.
6.18 Security Interests. On and after the Effective Date, each
of the Security Documents creates (or after the execution and delivery thereof,
will create), as security for the Obligations purported to be secured thereby, a
valid and enforceable security interest in and Lien on all of the Collateral
subject thereto, which shall be perfected upon the taking of possession thereof
or completion of filings with respect thereto, in each case as required by this
Agreement or the other Credit Documents, superior to and prior to the rights of
all third Persons and subject to no other Liens (except for Permitted Liens and
to the extent expressly set forth in the Security Documents). No filings or
recordings are required in order to perfect the security interests created under
any Security Document except for filings or recordings required in connection
with any such Security Document which shall have been made upon or prior to the
execution and delivery thereof (or, with respect to any such security interest
the perfection of which is obtained by the filing of UCC Financing Statements or
by appropriate filings in the United States Patent or Trademark Office or in the
United States Copyright Office, not later than 10 days after the Effective
Date).
6.19 Indebtedness. Schedule IV sets forth a true and complete
list of all (i) Indebtedness for borrowed money of the Borrower and each of its
Subsidiaries outstanding as of the Effective Date and which is to remain
outstanding after the Effective Date and (ii) agreements existing on the
Effective Date and which are to remain outstanding after the Effective Date
pursuant to which the Borrower or any of its Subsidiaries are entitled to incur
Indebtedness (collectively, the "Existing Indebtedness"), in each case showing
the aggregate principal amount thereof and the name of the Borrower and any
other entity which directly or indirectly guaranteed such debt.
6.20 Capitalization. On and as of the Effective Date, the
authorized capital stock of the Borrower shall consist of 20,000,000 of common
stock, 10,000,000 shares of which shall be issued and outstanding and 5,000,000
shares of preferred stock, none of which shall be issued or outstanding. All
such outstanding shares of common stock shall be duly and validly issued, are
fully paid and non-assessable and shall have been issued free from preemptive
rights. On and as of the Effective Date, the Borrower will not have outstanding
any securities convertible into or exchangeable for its capital stock or
outstanding any rights to subscribe for or to purchase, or any options or
warrants for the purchase of, or any agreements providing for the issuance
(contingent or otherwise) of, or any calls, commitments or claims of any
character relating to, its capital stock (other than stock options granted to
management, employees or directors as permitted hereunder and the Warrants).
6.21 Concerning the Vessels. The name, official number,
registered owner, and jurisdiction of registration of each Vessel is set forth
on Schedule III hereto. Except as set forth on Schedule III, each Vessel is
operated in material compliance 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 material compliance with all applicable
Environmental Laws.
6.22 Citizenship. The Borrower and each Subsidiary which owns
or operates one or more Vessels is qualified to own and operate such Vessels
under the laws of the Republic of Cyprus, the Republic of the Marshall Islands,
the Republic of Panama, St. Vincent and the Grenadines, or the United States of
America, as may be applicable.
6.23 Vessel Classification. Except as permitted by the laws of
the flag state, each Vessel is classified in the highest class available for
vessels of its age and type with the American Bureau of Shipping, Inc. or
another internationally recognized classification society acceptable to the
Collateral Agent, free of any conditions or recommendations, other than (i) with
respect to any Mortgaged Vessel, as permitted under the Vessel Mortgage related
thereto, and (ii) with respect to any other Vessels, such conditions or
recommendations which if not cured by the owner thereof would not materially
diminish such Vessel's value. With respect to Vessels not required by the laws
of the flag state to be classed, such Vessels are covered by valid certificates
of inspection or the equivalent.
6.24 Material Agreements. On the Effective Date, neither the
Borrower nor any of the Subsidiary Guarantors is party to any material,
Employment Agreement, Management Agreement, Shareholder Agreement or Tax Sharing
Agreement.
6.25 Concentration Account. From and after 60 days after the
Effective Date, the Borrower shall have (x) established its main operating
concentration account at BTCo (the "Concentration Account") and (y) established
a cash management system providing for amounts in excess of normal operating
balances to be delivered to the Concentration Account in a manner satisfactory
to the Administrative Agent.
Section 7. Affirmative Covenants. The Borrower covenants and
agrees that on and after the Effective Date and until the Total Commitment has
terminated and all Letters of Credit have expired or have been terminated or
canceled, and the Loans, all Unpaid Drawings and the Notes, together with
interest, Fees and all other Obligations incurred hereunder and thereunder, are
paid in full:
7.01 Information Covenants. The Borrower will furnish to the
Administrative Agent, in form and substance reasonably satisfactory to the
Administrative Agent with copies to be provided for the Lenders:
(a) Reports, Financial Statements. (i) as soon as available,
but in any event not later than 30 days (45 days for the monthly accounting
period ending January 31, 2000) after the end of each monthly accounting period
of each fiscal year of the Borrower, a copy of the unaudited consolidated
balance sheet of the Borrower and its Subsidiaries (which shall exclude the
financial information for the Lightship Tanker Entities) and the Borrower and
its Consolidated Subsidiaries as at the end of such monthly accounting period,
together with the related unaudited consolidated statements of earnings, cash
flow and shareholders' equity of the Borrower and its Subsidiaries and the
Borrower and its Consolidated Subsidiaries for such monthly accounting period
and the portion of the fiscal year through the end of such monthly accounting
period, setting forth in each case in comparative form the figures for the
previous fiscal year and the budgeted figures for such monthly accounting period
(or prior to the delivery of the first budget under Section 7.01(a)(v), the
figures set forth in the Projections) and the portion of the fiscal year to the
end of such monthly accounting period;
(ii) as soon as available, but in any event not later than 60
days after the end of each quarterly accounting period (which is not a fiscal
year end), a copy of the unaudited consolidated balance sheet of the Borrower
and its Subsidiaries and the Borrower and its Consolidated Subsidiaries as at
the end of such quarterly accounting period, together with the related unaudited
consolidated statements of earnings, cash flow and shareholders' equity of the
Borrower and its Subsidiaries and the Borrower and its Consolidated Subsidiaries
for such quarterly accounting period and the portion of the fiscal year through
the end of such quarterly accounting period, setting forth in each case in
comparative form the figures for the previous fiscal year and the budgeted
figures for such quarterly accounting period and the portion of the fiscal year
to the end of such quarterly accounting period;
(iii) as soon as available, but in any event within 120 days
after the end of each fiscal year of the Borrower and its Subsidiaries and the
Borrower and its Consolidated Subsidiaries, a copy of the audited consolidated
balance sheet of the Borrower and its Subsidiaries and Borrower and its
Consolidated Subsidiaries as at the end of such fiscal year, together with the
related audited consolidated statements of earnings, cash flow and shareholders'
equity of the Borrower and its Subsidiaries and the Borrower and its
Consolidated Subsidiaries for such fiscal year and reported on by any
independent internationally recognized firm of chartered accountants or
certified public accountants, together with an officer's certificate setting
forth in each case in comparative form the figures for the previous fiscal year
budgeted figures for such fiscal year;
(iv) on the last Business Day of the second fiscal quarter of
each year and upon the request of the Administrative Agent, appraisal reports in
form and substance and from independent appraisers reasonably satisfactory to
the Agents, stating the then current fair market value of each of the Mortgaged
Vessels, all such appraisals to be conducted and made at the expense of the
Borrower (it being understood that the Administrative Agent may, upon notice to
the Borrower, obtain such appraisals and that the cost of all such appraisals
will be paid by the Borrower); and
(v) not more than 60 days (120 days in the case of the fiscal
year of the Borrower beginning on January 1, 2000) after the commencement of
each fiscal year of the Borrower, and within 15 days of any material revisions
thereto, a budget, and any material revisions thereto prepared by the Borrower
in accordance with past practices, in form reasonably satisfactory to the
Administrative Agent (including budgeted statements of income and sources and
uses of cash and balance sheets) prepared by the Borrower, for each of the
twelve months of such fiscal year, in reasonable detail and setting forth, with
appropriate discussion, the principal assumptions upon which such budgets are
based and a statement by a Responsible Officer of each of the Borrower to the
effect that, to the best of such officer's knowledge, the budget is a reasonable
estimate for the period covered thereby.
All financial statements will be prepared on a consolidated basis and in
accordance with GAAP (containing any required reconciliations to show all
amounts which for the purpose of this Agreement are to be determined in
accordance with GAAP in effect on December 31, 1998 as so determined in
accordance with GAAP in effect on such date). Audited financial statements
required to be delivered pursuant to this Agreement will be complete and
accompanied by a report of an independent auditor confirming that the audit was
conducted in accordance with generally accepted auditing standards and
confirming that in the auditor's opinion, such financial statements present
fairly in all material respects the consolidated financial position of the
Borrower at the relevant date and the consolidated results of their operations
and the consolidated changes in their financial position for the relevant
period, in accordance with GAAP.
(b) Officer's Certificates. (x) At the time of the delivery of
the financial statements provided for in Section 7.01(a) hereof, a certificate
of a Responsible Officer of the Borrower to the effect that (i) to the best of
such officer's knowledge no Default or Event of Default exists since the date of
the most recent officer's certificate delivered pursuant to this Section 7.01(b)
or, if any Default or Event of Default has occurred and is continuing specifying
the nature and extent thereof, which certificate shall set forth the
calculations required to establish whether the Borrower and its Subsidiaries
were in compliance with the provisions of Sections 8.08 through 8.11 inclusive
as at the end of such fiscal quarter or year, as the case may be and the amount
of Excess Cash Flow in respect of any Excess Cash Payment Date (if any) and (ii)
in such officer's opinion such financial statements present fairly in all
material respects the consolidated financial position of the Borrower and its
Consolidated Subsidiaries, as applicable, as at the date of such statements and
for the reporting period included in such statements (subject to normal year-end
audit adjustments).
(y) At the time of the disposition of any Mortgaged Vessel, a
certificate of a Responsible Officer of the Borrower which certificate shall (i)
certify the last appraisal received pursuant to Section 7.01(a)(iv) determining
the First Preferred Vessel Value after giving effect to such disposition and
(ii) set forth the calculations required to establish whether the Borrower and
its Subsidiaries were in compliance with the provisions of Section 8.09 after
giving effect to such disposition.
(c) Notice of Default or Litigation. Promptly, and in any
event within three Business Days after an officer of the Borrower or any of its
Subsidiaries obtains actual knowledge thereof, notice of (x) the occurrence of
any event which constitutes a Default or Event of Default, which notice shall
specify the nature thereof, the period of existence thereof and what action the
Borrower proposes to take with respect thereto and (y) the commencement of or
any significant development in any litigation or governmental proceeding pending
against the Borrower or any of its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect or a material adverse effect on the
ability of the Borrower to perform its obligations hereunder or under any other
Credit Document, which in the case of clause (x) and (y) occurs after the
Effective Date.
(d) Other Reports and Filings. Promptly, copies of all
financial information, proxy materials and other information and reports, if
any, which the Borrower or any of its Subsidiaries shall file with the
Securities and Exchange Commission after the Effective Date or any successor
thereto (the "SEC").
(e) Environmental Matters. Promptly upon, and in any event
within five Business Days after, an officer of the Borrower or any of its
Subsidiaries obtains actual knowledge thereof, notice of one or more of the
following environmental matters, in each case, occurring after the Effective
Date, unless such environmental matters could not, individually or when
aggregated with all other such environmental matters, be reasonably expected to
have a Material Adverse Effect:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real
Property owned or operated by the Borrower or any of its Subsidiaries
that (a) results in noncompliance by the Borrower or any of its
Subsidiaries with any applicable Environmental Law or (b) could
reasonably be expected to form the basis of an Environmental Claim
against the Borrower or any of its Subsidiaries or any such Real
Property;
(iii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability by the
Borrower or any of its Subsidiaries of such Real Property under any
Environmental Law; and
(iv) the taking of any removal or remedial action in response to
the actual or alleged presence of any Hazardous Material on any Real
Property owned or operated by the Borrower or any of its Subsidiaries
as required by any Environmental Law or any governmental or other
administrative agency; provided that in any event the Borrower shall
deliver to each Lender all notices received after the date hereof by
them or any of its Subsidiaries from any government or governmental
agency under, or pursuant to, CERCLA.
All such notices shall describe in reasonable detail the nature of the claim,
investigation, condition, occurrence or removal or remedial action and the
Borrower or such Subsidiary's response thereto. In addition, upon the request of
the Administrative Agent, the Borrower will provide the Lenders with copies of
all material communications with any government or governmental agency relating
to Environmental Laws, all communications with any Person (other than their
attorneys) relating to any Environmental Claim of which notice is required to be
given pursuant to this Section 7.01(e), and such detailed reports of any such
Environmental Claim as may reasonably be requested by the Administrative Agent
on behalf of the Lenders.
(f) Other Information. Promptly, such other information
(including updated Schedules and Annexes to the Credit Documents) as the
Administrative Agent shall reasonably request.
7.02 Books, Records and Inspections. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries in conformity with generally accepted
accounting principles and all requirements of law shall be made of all dealings
and transactions in relation to their business and activities. The Borrower will
and will cause each of its Subsidiaries to, in all cases at the expense of the
Borrower, permit officers and designated representatives of the Administrative
Agent or any Lender to visit and inspect, during regular business hours and
under guidance of officers of the Borrower or such Subsidiary, any of the
properties of the Borrower or such Subsidiary and its Subsidiaries' Vessels, and
to examine the books of account of the Borrower or such Subsidiary and discuss
the affairs, finances and accounts of the Borrower or such Subsidiary or such
Subsidiary's Vessels with, and be advised as to the same by, its and their
officers and, in the case of the Borrower, its independent accountants (it being
understood that the Borrower shall be entitled to have a representative present
at any such discussions), all at such reasonable times and intervals and to such
reasonable extent as the Administrative Agent or such Lender may reasonably
request for the purposes of (i) inspecting the Collateral or determining the
value thereof, (ii) inspecting and/or copying (at the Borrower's expense) any
and all records pertaining thereto (iii) discussing the affairs, finances and
business of the Borrower with any officers, employees and directors of the
Borrower or with auditors (it being understood that the Borrower shall be
entitled to have a representative present at any such discussions). The Borrower
shall give the Collateral Agent fifteen days' prior written notice of any change
in the location of any facility owned or leased by the Borrower or any of its
Subsidiaries where Collateral is located or in the location of its chief
executive office or place of business from the locations specified in the Credit
Documents, and to execute in advance of such change, cause to be filed and/or
delivered to the Collateral Agent any financing statements or other documents
required by the Administrative Agent, all in form and substance reasonably
satisfactory to the Administrative Agent. The Borrower agrees to advise the
Administrative Agent promptly, in sufficient detail, of any substantial change
relating to the type, quantity or quality of the Collateral, or any event (other
than a change in price) which could have a material adverse effect on the value
of the Collateral or on the security interests granted to the Collateral Agent
on behalf of the Lenders therein. Any information obtained by the Administrative
Agent or any Lender pursuant to this Section 7.02 shall be subject to the
provisions of Section 12.13.
7.03 Maintenance of Property; Insurance. Schedule V sets forth
a true and complete listing of all insurance maintained by the Borrower and its
Subsidiaries as of the Effective Date. The Borrower will, and will cause each of
its Subsidiaries to, (i) keep all material property necessary in their business
in good working order and condition (ordinary wear and tear excepted); provided
that the Borrower and its Subsidiaries may lay up Mortgaged Vessels in
accordance with the Vessel Mortgages, (ii) maintain insurance on the Mortgaged
Vessels in at least such amounts and against at least such risks as in effect on
the Effective Date and (iii) furnish to the Administrative Agent, upon written
request, full information as to the insurance carried including, without
limitation, insurance reports in the form described in Section 5.01(m). In
addition to the requirements of the immediately preceding sentence, the Borrower
will at all times cause insurance of the types described in Schedule V to (i) be
maintained (with the same scope of coverage as that described in Schedule V) at
levels which are at least as great as the respective amount described opposite
the respective type of insurance on Schedule V under the column headed "Minimum
Amount Required to be Maintained" and (ii) comply with the requirements of the
Vessel Mortgages.
7.04 Corporate Franchises. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done, all things necessary in the
reasonable business judgment of such Borrower and such Subsidiaries to preserve
and keep in full force and effect its existence, material rights, franchises,
licenses, patents and authority to do business, except where the failure to do
so could not be reasonably expected to have a Material Adverse Effect; provided
that any transaction permitted by Section 8.02 will not constitute a breach of
this Section 7.04.
7.05 Compliance with Statutes, etc. The Borrower will, and
will cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of their
business and the ownership of their property, except such noncompliances as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
7.06 End of Fiscal Years; Fiscal Quarters. The Borrower shall
cause (i) each of its and each of its Subsidiaries' fiscal years to end on
December 31, and (ii) each of its and each of its Subsidiaries' fiscal quarters
to end on the last day of each March, June, September and December.
7.07 Performance of Obligations. The Borrower will, and will
cause each of its Subsidiaries to, perform all of their obligations arising
after the Effective Date under the terms of each material agreement by which it
is bound, except such non-performances as could not be reasonably expected to
have a Material Adverse Effect.
7.08 Additional Vessels; Further Assurances. (a) Upon
acquiring any new Vessel after the Effective Date or upon the Vessels becoming
free of any commitments preventing them to be mortgaged hereunder, the Borrower
and/or its Subsidiaries shall notify the Administrative Agent of such
acquisition, and shall within 30 days of such acquisition, execute and deliver a
Vessel Mortgage, deliver related information and reports, and otherwise take
such actions with respect to such Vessel and Vessel Mortgage as would have been
required to satisfy the conditions of Section 5.01 if such new Vessel were a
Mortgaged Vessel on the Effective Date.
(b) The Borrower agrees to cause each new Subsidiary acquired
or created after the Effective Date to execute and deliver a guaranty of all
Obligations, in substantially the form of the Subsidiary Guaranty.
(c) The Borrower agrees to pledge and deliver, or cause to be
pledged and delivered, all of the capital stock, partnership interest, limited
liability interest or other evidence of ownership of each new Subsidiary
acquired or created after the Effective Date, to the extent owned by the
Borrower or any Subsidiary Guarantor, to the Collateral Agent for the benefit of
the Lenders pursuant to the Pledge Agreement.
(d) The Borrower shall, and shall cause, each of its
Subsidiaries, at its own expense, to execute, acknowledge and deliver, or cause
the execution, acknowledgment and delivery of, and thereafter register, file or
record in any appropriate governmental office, any document or instrument
reasonably deemed by the Collateral Agent to be necessary or desirable for the
creation and perfection of the foregoing Liens.
(e) The Borrower, and each of its Subsidiaries, agrees that at
any time and from time to time, at the expense of the Borrower, it will promptly
execute and deliver all further instruments and documents, and take all further
action that may be reasonably necessary or desirable, or that the Administrative
Agent may reasonably request, to perfect and protect any Lien granted or
purported to be granted hereby, by the other Credit Documents, or to enable the
Collateral Agent to exercise and enforce its rights and remedies with respect to
any Collateral. Without limiting the generality of the foregoing, the Borrower
will execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be reasonably necessary
or desirable, or that the Administrative Agent may reasonably request, to
protect and preserve the Liens granted or purported to be granted hereby and by
the other Credit Documents.
(f) The Borrower hereby authorizes the Collateral Agent to
file one or more financing or continuation statements, and amendments thereto,
relative to all or any part of the Collateral without the signature of the
Borrower, where permitted by law. A carbon, photographic or other reproduction
of this Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law. The
Collateral Agent will promptly send the Borrower any financing or continuation
statements which they file without the signature of the Borrower and the
Collateral Agent will promptly send such Borrower the filing or recordation
information with respect thereto.
(g) The security interests required to be granted pursuant to
this Section 7.08 shall be granted pursuant to security documentation (which
shall be substantially similar to the Security Documents already executed and
delivered by the Borrower or its Subsidiaries, as applicable) or otherwise
reasonably satisfactory in form and substance to the Collateral Agent and the
Borrower and shall constitute valid and enforceable perfected security interests
prior to the rights of all third Persons and subject to no other Liens except
such Liens as are permitted by Section 8.01. Such additional Security Documents
and other instruments related thereto shall be duly recorded or filed in such
manner and in such places and at such times as are required by law to establish,
perfect, preserve and protect the Liens, in favor of the Collateral Agent for
the benefit of the respective Lenders, required to be granted pursuant to the
Additional Security Documents and all taxes, fees and other charges payable in
connection therewith shall be paid in full by the Borrower. At the time of the
execution and delivery of any additional Security Documents, the Borrower shall
cause to be delivered to the Collateral Agent such opinions of counsel, Vessel
Mortgages, insurance policies, vessel appraisals and other related documents as
may be reasonably requested by the Administrative Agent or the Required Lenders
to assure themselves that this Section 7.08 has been complied with.
(h) The Borrower shall, and shall cause, each of its
Subsidiaries, to deliver and execute a Vessel Mortgage, deliver related
information and reports and otherwise take such actions with respect to such
Vessel and Vessel Mortgage listed on Schedule VI hereto as would have been
required to satisfy the conditions of Section 5.01, within the time period set
forth in the column entitled "Deadline" next to the name of such Vessel.
7.09 ERISA. As soon as possible and, in any event, within 15
days after the Chief Executive Officer or Chief Financial Officer of the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following, the Borrower will
deliver to each of the Lenders a certificate of the Chief Financial Officer of
the Borrower setting forth the full details as to such occurrence and the
action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given or filed by such Borrower, such Subsidiary, the Plan administrator or
such ERISA Affiliate to or with the PBGC or any other government agency, or a
Plan participant and any notices received by such Borrower, such Subsidiary or
ERISA Affiliate from the PBGC or any other government agency, or a Plan
participant with respect thereto: that a Reportable Event has occurred (except
to the extent that the Borrower have previously delivered to the Lenders a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following thirty (30) days; that
an accumulated funding deficiency, within the meaning of Section 412 of the Code
or Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan;
that any contribution required to be made with respect to a Plan or Foreign
Pension Plan has not been timely made; that a Plan has been or may be
terminated, reorganized, partitioned or declared insolvent under Title IV of
ERISA; that a Plan has an Unfunded Current Liability; that proceedings may be or
have been instituted to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan;
that the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate will or
may incur any liability (including any indirect, contingent, or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409, 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code; or that the Borrower or any Subsidiary of the
Borrower may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan or any Foreign Pension Plan. Upon request, the
Borrower will deliver to each of the Lenders copies of any records, documents or
other information that must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA. The Borrower will also deliver to each of the
Lenders a complete copy of the annual report (on Internal Revenue Service Form
5500-series) of each Plan (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service. In addition to any certificates or notices delivered
to the Lenders pursuant to the first sentence hereof, copies of annual reports
and any records, documents or other information required to be furnished to the
PBGC or any other government agency, and any material notices received by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate with respect to
any Plan or Foreign Pension Plan shall be delivered to the Lenders no later than
ten (10) days after the date such annual report has been filed with the Internal
Revenue Service or such records, documents and/or information has been furnished
to the PBGC or any other government agency or such notice has been received by
the Borrower, the Subsidiary or the ERISA Affiliate, as applicable. The Borrower
and each of its applicable Subsidiaries shall ensure that all Foreign Pension
Plans administered by it or into which it makes payments obtains or retains (as
applicable) registered status under and as required by applicable law and is
administered in a timely manner in all respects in compliance with all
applicable laws except where the failure to do any of the foregoing could not be
reasonably expected to have a Material Adverse Effect.
7.10 Payment of Taxes. The Borrower will pay and discharge,
and will cause each of Subsidiaries to, pay and discharge all material taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any material properties belonging to it, and on a
timely basis, and all material lawful claims which, if unpaid, would become a
Lien or charge upon any properties of the Borrower or of any of its
Subsidiaries, provided that neither the Borrower nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves (in the good faith judgment of the management of such Person)
with respect thereto in accordance with GAAP.
7.11 Compliance with Environmental Laws. (a) The Borrower will
comply, and will cause each of its Subsidiaries to comply, with all
Environmental Laws applicable to the ownership or use of its Real Property now
or hereafter owned or operated by the Borrower or any of its Subsidiaries,
except such noncompliance as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, will within a
reasonable time-period pay or cause to be paid all costs and expenses incurred
in connection with such compliance. To the extent the Borrower or its
Subsidiaries generate, use, treat, store, release or dispose of, or permit the
generation, use, treatment, storage, Release or disposal of Hazardous Materials
on any Real Property now or hereafter owned or operated by the Borrower or any
of its Subsidiaries, or transport or permit the transportation of Hazardous
Materials to or from any such Real Property, they will do so in each case in
material compliance with all applicable Environmental Laws except where failure
to comply, individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect.
(b) At the reasonable written request of the Administrative
Agent or the Required Lenders, which request shall specify in reasonable detail
the basis therefor, at any time and from time to time, the Borrower will
provide, at the Borrower's sole cost and expense, an environmental site
assessment report concerning any Real Property now or hereafter owned or
operated by the Borrower or any of its Subsidiaries, prepared by an
environmental consulting firm approved by the Administrative Agent, assessing
whether the Real Property and the Borrower's operations at such Real Property
are in compliance with Environmental Laws, indicating the presence or absence of
Hazardous Materials and determining the potential cost of any removal or
remedial action in connection with any Hazardous Materials on such Real
Property; provided, that such request may be made only if (i) there has occurred
and is continuing an Event of Default, (ii) the Administrative Agent reasonably
believes that the Borrower or any such Real Property is not in material
compliance with Environmental Laws or (iii) circumstances exist that reasonably
could be expected to form the basis of a material Environmental Claim against
either Borrower or any such Real Property. If the Borrower fails to provide the
same within 90 days after such request was made, the Administrative Agent may
order the same, and the Borrower shall grant and hereby grants to the
Administrative Agent, the Lenders and their environmental consultant access to
such Real Property and specifically grant the Administrative Agent, the Lenders
and their environmental consultant an irrevocable non-exclusive license, subject
to the rights of tenants, to undertake such an assessment, all at the Borrower's
expense.
7.12 Concerning the Vessels; Citizenship. Except for matters
disclosed on Schedule III hereto, the Borrower will, and will cause each of its
Subsidiaries to operate each Vessel in material 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, eligible to engage in the coastwise trade of the
United States of America.
7.13 Interest Rate Cap. (i) The Borrower shall obtain an
interest rate cap agreement with respect to $75 million of the Term Loans within
60 days of the Effective Date and (ii) such agreement shall be reasonably
satisfactory in form and substance to the Administrative Agent.
7.14 Concentration Account. No later than 60 days after the
Effective Date, the Borrower will establish (i) the Concentration Account and
(ii) a cash management system providing for amounts in excess of normal
operating balances to be delivered to the Concentration Account in a manner
satisfactory to the Administrative Agent.
Section 8. Negative Covenants. The Borrower agrees that, on
and after the Effective Date and until the Total Commitments have terminated and
all Letters of Credit have expired or have been terminated or canceled and the
Loans, all Unpaid Drawings and the Notes, together with interest, Fees and all
other Obligations incurred hereunder and thereunder, are paid in full:
8.01 Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any property or assets (real or personal, tangible or
intangible) owned by the Borrower or any of its Subsidiaries, whether now owned
or hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable with recourse to the Borrower
or any of its Subsidiaries), or assign any right to receive income or permit the
filing of any financing statement under the UCC or any other similar notice of
Lien under any similar recording or notice statute (except in connection with
the Permitted Liens); provided that the provisions of this Section 8.01 shall
not prevent the creation, incurrence, assumption or existence of the following
("Permitted Liens"):
(i) Liens in existence on the Effective Date to the extent
described in Schedule VIII hereto, and then only to the extent of the
Indebtedness or obligations secured thereby, and only encumbrance of
the assets encumbered thereby, on the Effective Date ("Permitted
Existing Liens");
(ii) Liens created under the Security Documents;
(iii) Liens securing Indebtedness in the amount permitted by
Section 8.04(iii) of or upon (i) any property or assets acquired
(whether by purchase, merger or otherwise) after the Effective Date, or
(ii) improvements made on any property or assets now owned or hereafter
acquired, in each case, securing the purchase price thereof or created
or incurred simultaneously with, or within 180 days after, such
acquisition or the making of such improvements or existing at the time
of such acquisition (whether or not assumed) or the making of such
improvements, as the case may be, if (x) such Lien shall be limited to
the property or assets so acquired or the improvements so made and (y)
the amount of the obligations or Indebtedness secured by such Lien
shall not be increased after the date of the acquisition of such
property or assets or the making of such improvements;
(iv) Liens arising under capitalized leases to the extent
permitted by Section 8.04(iii) provided that (x) such Liens only serve
to secure the payment of Indebtedness arising under such Capitalized
Lease Obligation and (y) the Lien encumbering the asset giving rise to
the Capitalized Lease Obligation does not encumber any other asset of
the Borrower or any Subsidiary of the Borrower;
(v) Customary Permitted Liens;
(vi) Liens of a lessor under an operating lease on the property
subject to such lease;
(vii) Liens arising from precautionary UCC financing statement
filings regarding operating leases or consignment arrangements entered
into by the Borrower or any of its Subsidiaries in the ordinary course
of business;
(viii) Liens arising out of the existence of judgments or awards
not constituting an Event of Default under Section 9.06, provided that
no cash or property is deposited or delivered to secure the respective
judgment or award (or any appeal bond in respect thereof, except as
permitted by the following clause (ix));
(ix) Liens (other than any Lien imposed by ERISA) (x) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, (y) to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal
bonds, statutory bonds, bids, leases, government contracts, trade
contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed
money) incurred in the ordinary course of business or (z) constituting
deposits made in the ordinary course of business to secure liability
for premiums to insurance carriers, provided that the aggregate amount
of deposits at any time pursuant to sub-clause (y) and sub-clause (z)
that are not listed on Schedule VIII shall not exceed $3,000,000 in the
aggregate;
(x) Liens not otherwise permitted by the foregoing clauses (i)
through (ix) to the extent attaching to properties and assets with an
aggregate fair value not in excess of, and securing liabilities not in
excess of, $1,000,000 in the aggregate at any time outstanding;
(xi) Liens encumbering the Mortgaged Vessels permitted pursuant
to the express terms of the Vessel Mortgages and Liens encumbering the
other Vessels owned by the Borrower and its Subsidiaries of the type
permitted under the Vessel Mortgages; and
(xii) Liens under the Escrow Agreement.
8.02 Consolidation, Merger, Sale of Assets, etc. The Borrower
will not, and will not permit any of its Subsidiaries to, (i) wind up, liquidate
or dissolve its affairs or (ii) enter into any transaction of merger or
consolidation, or (iii) convey, sell, lease or otherwise dispose of (or agree to
do any of the foregoing at any future time) all or any part of its property or
assets, or (iv) enter into any partnerships, joint ventures or sale-leaseback
transactions, or (v) purchase or otherwise acquire (in one or a series of
related transactions) any part of the property or assets (other than purchases
or other acquisitions of inventory, materials and equipment in the ordinary
course of business) of any Person, except that the foregoing shall not preclude:
(i) Capital Expenditures by the Borrower and its Subsidiaries
shall be permitted to the extent not in violation of Section 8.06;
(ii) investments, acquisitions, transfers and dispositions of
property may be made to the extent permitted by Section 8.05;
(iii) the Borrower and its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long
as any such lease does not create a Capitalized Lease Obligation except
to the extent permitted by Section 8.04(iii));
(iv) the Borrower and its Subsidiaries may make sales or
transfers of inventory and equipment (other than Vessels) no longer
used or useful in the business or operations of the Borrower, in each
case, in the ordinary course of business and consistent with past
practices (including, without limitation, sales or transfers of
equipment by the Borrower to its Subsidiaries so long as at fair market
value);
(v) the Borrower and its Subsidiaries may sell or discount, in
each case without recourse and in the ordinary course of business,
overdue accounts receivable arising in the ordinary course of business,
but only in connection with the compromise or collection thereof
consistent with customary industry practice (and not as part of any
bulk sale or financing of receivables);
(vi) transfers of condemned property to the respective
governmental authority or agency that has condemned same (whether by
deed in lieu of condemnation or otherwise), and transfers of properties
that have been subject to a casualty to the respective insurer of such
property as part of an insurance settlement;
(vii) licenses or sublicenses by the Borrower and its
Subsidiaries of software, trademarks and other intellectual property in
the ordinary course of business and which do not materially interfere
with the business of the Borrower or any Subsidiary;
(viii) the Borrower or any Subsidiary Guarantor may transfer
assets or lease to or acquire or lease assets from the Borrower or any
Subsidiary Guarantor and any other Subsidiary of the Borrower may
transfer assets to the Borrower or any Subsidiary Guarantor and any
Subsidiary may be merged or consolidated with or into or be liquidated
into the Borrower (as long as the Borrower is the surviving
corporation) or any Subsidiary Guarantor;
(ix) the Borrower or any Subsidiary may enter into consignment
arrangements (as consignor or as consignee) or similar arrangements for
the sale of goods in the ordinary course of business and consistent
with the past practices of the Borrower and its Subsidiaries prior to
the Effective Date;
(x) sales or dispositions of assets to the extent that the
aggregate Net Sale Proceeds received from all such sales and
dispositions permitted by this clause (x) shall not exceed $20 million
in any fiscal year of the Borrower, provided that (i) each such sale
shall be for an amount at least equal to the fair market value thereof
(as determined in good faith by the Board of Directors or senior
management of the Borrower), (ii) at least 85% of the consideration
therefor shall be cash and (iii) the proceeds thereof shall be applied
as required under Section 4.02; and
(xi) dispositions of Cash Equivalents and Foreign Cash
Equivalents in the ordinary course of business.
To the extent the Required Lenders waive the provisions of this Section 8.02
with respect to the disposition of any Collateral, or any Collateral is disposed
of as permitted by this Section 8.02 (except to the Borrower or any of its
Subsidiaries), such Collateral shall be sold free and clear of the Liens created
by the Credit Documents, and the Collateral Agent shall be authorized to take
such actions as it deems appropriate to effect the foregoing.
8.03 Dividends. The Borrower will not, and will not permit any
of its Subsidiaries to, authorize, declare or pay any Dividends or return any
capital to, their stockholders or authorize, except that (i) any Subsidiary of
the Borrower may make distributions to any Wholly-Owned Subsidiary of the
Borrower owning such Subsidiary and to the Borrower and (ii) so long as no Event
of Default then exists or would arise therefrom, the Borrower may repurchase its
capital stock in accordance with the terms of its Certificate of Incorporation
to comply with the citizenship requirements of the Merchant Marine Act of 1936,
as amended, the Shipping Act of 1916, as amended and the regulations promulgated
thereunder, so long as the amount thereof does not exceed $2,500,000.
8.04 Indebtedness. The Borrower will not, and will not permit
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except as follows:
(i) Indebtedness incurred pursuant to this Agreement and the
other Credit Documents;
(ii) Existing Indebtedness;
(iii) Indebtedness secured by Liens permitted pursuant to Section
8.01(iii) or arising under Capitalized Lease Obligations incurred after
the Effective Date, to the extent all of the foregoing Indebtedness
does not exceed (x) $5 million in the aggregate at any time outstanding
for the fiscal year ending December 31, 2000 and (y) $10,000,000 in the
aggregate at any time outstanding thereafter;
(iv) Accrued expenses and current trade accounts payable
incurred in the ordinary course of business;
(v) Intercompany indebtedness as described in Section 8.05(ix);
provided that if any such intercompany indebtedness is evidenced by
promissory notes, such promissory notes shall be pledged pursuant to
the Pledge Agreement;
(vi) Contingent Obligations of the Borrower or any Subsidiary as
a guarantor under any lease pursuant to which the Borrower or a
Subsidiary is the lessee so long as such lease is otherwise permitted
hereunder;
(vii) Indebtedness in respect of Customary Permitted Liens;
(viii) Guarantees by the Borrower of the performance obligations
of its Subsidiaries;
(ix) Indebtedness of the Borrower not to exceed $95,000,000
under the Senior Secured Second Lien Notes, and the guarantees thereof
under the Note Subsidiary Guaranty;
(x) Indebtedness in respect of Hedging Agreements entered into
for non-speculative purposes; and
(xi) Indebtedness evidenced by an unguaranteed promissory note
issued by the Borrower on terms satisfactory to the Administrative
Agent and the Syndication Agent in connection with its investment in
the Lightship Tanker Entities permitted under Section 8.05(vii) and
secured by the capital stock or other ownership interest in such
investment;
(xii) Additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount not to exceed (a) $1
million for the fiscal year ending December 31, 2000 and (b) $2,500,000
during each calendar year thereafter, at any one time outstanding.
8.05 Advances, Investments and Revolving Loans. The Borrower
will not, and will not permit any of its Subsidiaries to lend money or credit or
make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person or hold any cash or Cash Equivalents, except that the following
shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold
accounts receivable owing to any of them, if created or acquired in the
ordinary course of business and payable or dischargeable in accordance
with customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold
cash and Cash Equivalents (and Foreign Subsidiaries may hold Foreign
Cash Equivalents), provided that during any time that Revolving Loans
or Swingline Loans are outstanding, the Borrower will not, and will not
permit any of the Subsidiaries to, directly or indirectly maintain in
the aggregate, in all of their checking, savings or other accounts
total cash balances and investments (including investments in Cash
Equivalents and Foreign Cash Equivalents) in excess of $15,000,000 for
any period of five consecutive days;
(iii) the Borrower and its Subsidiaries may make loans and
advances in the ordinary course of business to their respective
employees, officers and directors so long as the aggregate principal
amount thereof at any time outstanding (determined without regard to
any write-downs or write-offs of such loans and advances) shall not
exceed $1,000,000;
(iv) the Borrower and its Subsidiaries may sell or transfer
assets to each other to the extent permitted by Section 8.02(x);
(v) investments by the Borrower and its Subsidiaries existing
on the Effective Date and set forth on Schedule IX;
(vi) investments consisting of promissory notes payable to the
Borrower or any Subsidiary thereof in connection with sales of assets
permitted by Section 8.02(x);
(vii) investments after the Effective Date by the Borrower and
its Subsidiaries in the Lightship Tankers Entities for aggregate
consideration not to exceed $21 million (no more than a portion to be
satisfactory to the Administrative Agent and the Syndication Agent of
which may be cash and the remainder of which shall be in the form of
one or more promissory notes, on terms satisfactory to the
Administrative Agent and the Syndication Agent);
(viii) Hedge Agreements permitted under Section 8.04(x);
(ix) the Borrower may make investments (and capital
contributions) in, and loans and advances to, any Subsidiary Guarantor
and any Subsidiary Guarantor may make investments (and capital
contributions) in, and loans and advances to, the Borrower and any
other Subsidiary Guarantor;
(x) the Borrower and each of its Subsidiaries may acquire and
own investments (including debt obligations) received in connection
with bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with,
customers and suppliers arising in the ordinary course of business; and
(xi) in addition to investments, loans and advances permitted
above, the Borrower and its Subsidiaries may make additional
investments, loans and advances to or in any Person so long as the
aggregate amount of all such investments, loans and advances does not
exceed $1million.
8.06 Capital Expenditures. (a) The Borrower will not, and will
not permit any of its Subsidiaries to, incur Consolidated Capital Expenditures,
provided that the Borrower and its Subsidiaries may make Consolidated Capital
Expenditures during each fiscal period set forth below (taken as one accounting
period) so long as the aggregate amount of Consolidated Capital Expenditures
made under this Section 8.06(a) does not exceed for any period set forth below
the amount set forth opposite such period:
- ----------------------------------------------------- -----------------------
Fiscal Year Ending Amount
- ----------------------------------------------------- -----------------------
- ----------------------------------------------------- -----------------------
December 31, 2000 $35 million
- ----------------------------------------------------- -----------------------
- ----------------------------------------------------- -----------------------
December 31, 2001 $35 million
- ----------------------------------------------------- -----------------------
- ----------------------------------------------------- -----------------------
December 31, 2002 $40 million
- ----------------------------------------------------- -----------------------
- ----------------------------------------------------- -----------------------
December 31, 2003 $40 million
- ----------------------------------------------------- -----------------------
- ----------------------------------------------------- -----------------------
December 31, 2004 $40 million
- ----------------------------------------------------- -----------------------
- ----------------------------------------------------- -----------------------
December 31, 2005 $40 million
- ----------------------------------------------------- -----------------------
- ----------------------------------------------------- -----------------------
December 31, 2006 $40 million
- ----------------------------------------------------- -----------------------
(b) In the event that the maximum amount which is permitted to
be expended in respect of Consolidated Capital Expenditures during any fiscal
year of the Borrower pursuant to this Section 8.06 (without giving effect to
this clause (b)) is not fully expended during such fiscal year, the maximum
amount which may be expended during the immediately succeeding fiscal year
pursuant to Section 8.06(a) shall be increased by 50% of such unutilized amount.
(c) In addition to the foregoing, the maximum amount which is
permitted to be expended in respect of Consolidated Capital Expenditure during
any fiscal year of the Borrower pursuant to this Section 8.06 (including clause
(b) thereof) shall be increased by the amount of Unutilized Excess Cash Flow for
the previous fiscal year.
(d) In addition to the foregoing, the Borrower and its
Subsidiaries may make Consolidated Capital Expenditures consisting of (x) the
reinvestment of Insurance Proceeds in accordance with Section 4.02(A) and (y)
the acquisition of certain assets disclosed to the Lenders prior to the
Effective Date made in connection with the settlement of claims outstanding as
of the Effective Date.
8.07 Transactions with Affiliates. The Borrower will not, and
will not permit its Subsidiaries to, enter into any transaction or series of
related transactions, whether or not in the ordinary course of business, with
any Affiliate of such Person, other than on terms and conditions substantially
as favorable to such Person as would be obtainable by such Person at the time in
a comparable arm's-length transaction with a Person other than an Affiliate;
provided that this Section 8.07 shall not apply to transactions between Credit
Parties or transactions permitted under Section 8.05.
8.08 Minimum Consolidated EBITDA. The Borrower will not permit
Consolidated EBITDA for any Test Period ended on the last day of a fiscal
quarter set forth below to be less than the amount set forth opposite such
fiscal quarter below:
- ------------------------------------- ------------------------------
Fiscal Quarter Ended Minimum EBITDA
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
March 31, 2000 $10 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
June 30, 2000 $20 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
September 30, 2000 $35 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
December 31, 2000 $52.5 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
March 31, 2001 $57.5 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
June 30, 2001 $60 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
September 30, 2001 $62.5 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
December 31, 2001 $65 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
March 31, 2002 $67.5 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
June 31, 2002 $70 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
September 30, 2002 $72.5 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
December 31, 2002 $75 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
March 31, 2003 $77.5 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
June 30, 2003 $80 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
September 30, 2003 $82.5 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
December 31, 2003 $85 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
March 31, 2004 $87.5 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
June 30, 2004 $90 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
September 30, 2004 $95 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
December 31, 2004 $100 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
March 31, 2005 $100 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
June 30, 2005 $100 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
September 30, 2005 $100 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
December 31, 2005 $100 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
March 31, 2006 $100 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
June 30, 2006 $100 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
September 30, 2006 $100 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
December 31, 2006 $100 million
- ------------------------------------- ------------------------------
- ------------------------------------- ------------------------------
8.09 Loan to Value Maintenance. The Borrower will not permit
the sum of the aggregate principal amount of outstanding Term Loans plus the
Total Revolving Loan Commitment to exceed 50% of fair market value of all
Mortgaged Vessels at any time other than the Mortgaged Vessels subject to a
Second Preferred Mortgage of the Lenders (such value, the "First Preferred
Vessel Value") as determined by the most recent appraisal delivered by the
Borrower to the Administrative Agent in accordance with the terms of this
Agreement.
8.10 Minimum Fixed Charge Coverage Ratio. The Borrower shall
not permit the Fixed Charge Coverage Ratio on the last day of any Test Period
(starting with the Test Period ended on December 31, 2000) to be less than
1.00:1.00.
8.11 Minimum Working Capital Ratio. The Borrower will not
permit its Working Capital Ratio on the last day of any fiscal quarter set forth
below to be less than the ratio set forth opposite such date below:
- ------------------------------------ ----------------------------
Fiscal Quarter Ended Ratio
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
March 31, 2000 1.25:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
June 30, 2000 1.25:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
September 30, 2000 1.25:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
December 31, 2000 1.25:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
March 31, 2001 1.25:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
June 30, 2001 1.25:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
September 30, 2001 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
December 31, 2001 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
March 31, 2002 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
June 31, 2002 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
September 30, 2002 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
December 31, 2002 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
March 31, 2003 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
June 30, 2003 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
September 30, 2003 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
December 31, 2003 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
March 31, 2004 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
June 30, 2004 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
September 30, 2004 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
December 31, 2004 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
March 31, 2005 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
June 30, 2005 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
September 30, 2005 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
December 31, 2005 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
March 31, 2006 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
June 30, 2006 1.5:0.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
September 30, 2006 1.5:1.00
- ------------------------------------ ----------------------------
- ------------------------------------ ----------------------------
December 31, 2006 1.5:1.00
- ------------------------------------ ----------------------------
8.12 Subsidiaries. The Borrower will not, and will not permit
its Subsidiaries to, on and after the Effective Date establish, create or
acquire any new Subsidiary unless the Borrower and its Subsidiaries (including
such new Subsidiary) comply with Section 7.08.
8.13 Restriction on Payment Restrictions Affecting
Subsidiaries. The Borrower shall not, and shall not permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction (other than pursuant to this Agreement)
on the ability of the Borrower's Subsidiaries to (a) pay dividends or make any
other distributions on its capital stock or any other interest or participation
in its profits, owed by the Borrower or pay any Indebtedness owed to the
Borrower, (b) make advances or loans to the Borrower or (c) transfer any of its
properties or assets to the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) the Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of the Borrower or such Subsidiary,
(iv) customary restrictions on dispositions of real property interests and (v)
restrictions on the payment of dividend related to the Title XI guarantee
financing documents.
8.14 Change in Business The Borrower will not and will not
permit any of its Subsidiaries to engage (directly or indirectly) in any
business other than the business of the Borrower and its Subsidiaries as of the
Effective Date and other businesses reasonably related thereto.
8.15 Limitation on Modifications or Prepayment of
Indebtedness. The Borrower will not, and will not permit any of its Subsidiaries
to, (i) amend or modify, or permit the amendment or modification of, any
provision of the Senior Secured Second Lien Notes Documents or of any agreement
relating thereto, (ii) make (or give notice in respect of) any voluntary or
optional payment or prepayment on or redemption or acquisition for value of
(including, without limitation, by way of depositing with the trustee with
respect thereto money or securities before due for the purpose of paying when
due) any Senior Secured Second Lien Note.
8.16 Limitation on Issuance of Capital Stock. (a) The Borrower
will not directly or indirectly, sell issue, any capital stock which is
preferred stock.
(b) The Borrower will not permit any of its Subsidiaries to
issue any capital stock (including by way of sales of treasury stock) or any
options or warrants to purchase, or securities convertible into, capital stock,
except (i) for transfers and replacements of then outstanding shares of capital
stock, (ii) for stock splits, stock dividends and additional issuances which do
not decrease the percentage ownership of the Borrower or any of its Subsidiaries
in any class of the capital stock of such Subsidiary, (iii) in the case of
Foreign Subsidiaries of the Borrower, to qualify directors to the extent
required by applicable law, and (iv) Subsidiaries of the Borrower formed after
the Effective Date may issue capital stock to the Borrower or the respective
Subsidiary of the Borrower which is to own such stock in accordance with the
requirements of Section 7.08 and (v) pursuant to mergers and consolidations
permitted under Section 8.04(v). All capital stock issued in accordance with
this Section 8.16(b) shall, to the extent required by the Pledge Agreement, be
delivered to the Collateral Agent for pledge pursuant to the Pledge Agreement.
Section 9. Events of Default. Upon the occurrence of any of
the following specified events (each an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment
when due of any payment of principal of its Loans or Notes or of any Unpaid
Drawing or (ii) default, and such default shall continue for at least three
Business Days, in any payment of interest on its Loans or Notes or on any Unpaid
Drawing or any Fees or any other amounts owing by it hereunder or thereunder; or
9.02 Representations, etc. Any representation, warranty or
statement made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be incorrect
or misleading in any material respect when made; or
9.03 Covenants. Any Credit Party shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 7.06 or any provision of Section 8 or (ii) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Sections 9.01 and 9.02 and clause (i) of this Section 9.03)
contained in this Agreement or any other Credit Document and such default shall
continue unremedied for a period of 30 days after written notice to the Borrower
by the Administrative Agent or the Required Lenders; or
9.04 ERISA. (a) Any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof under Section 412 of
the Code or Section 302 of ERISA or a waiver of such standard or extension of
any amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
with respect to such Plan within the following thirty (30) days, any Plan which
is subject to Title IV of ERISA shall have had or is likely to have a trustee
appointed to administer such Plan, any Plan which is subject to Title IV of
ERISA is, shall have been terminated or to be the subject of termination
proceedings under ERISA, any Plan shall have an Unfunded Current Liability, a
contribution required to be made with respect to a Plan or a Foreign Pension
Plan has not been timely made, the Borrower or any Subsidiary of the Borrower or
any ERISA Affiliate has incurred or is likely to incur any liability to or on
account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064,
4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or 4975 of the
Code or on account of a group health plan (as defined in Section 607(1) of ERISA
or Section 4980B(g)(2) of the Code) under Section 4980B of the Code, or the
Borrower or any Subsidiary of the Borrower has incurred liabilities pursuant to
one or more employee welfare benefit plans (as defined in Section 3(1) of ERISA)
that provide benefits to retired employees or other former employees (other than
as required by Section 601 of ERISA) or Plans or Foreign Pension Plans, or a
"default," within the meaning of Section 4219(c)(5) of ERISA, shall occur with
respect to any Plan; any applicable law, rule or regulation is adopted, changed
or interpreted, or the interpretation or administration thereof is changed, in
each case after the date hereof, by any governmental authority or agency or by
any court (a "Change in Law"), or, as a result of a Change in Law, an event
occurs following a Change in Law, with respect to or otherwise affecting any
Plan; (b) there shall result from any such event or events the imposition of a
lien, the granting of a security interest, or a liability; and (c) such lien,
security interest or liability, individually, and/or in the aggregate, in the
reasonable opinion of the Required Lenders, has had, or could reasonably be
expected to have, a Material Adverse Effect; or
9.05 Security Documents. Any Security Document shall cease to
be in full force and effect, or any Lien purported to be created by any Security
Document in any of the Collateral purported to be covered thereby shall, for any
reason (other than the release of such Lien in accordance with the terms hereof
or thereof), cease to be valid or shall cease to have the priorities set forth
in this Agreement or the other Credit Documents, or the Borrower shall default
in the due performance or observance of any term, covenant or agreement on its
part to be performed or observed pursuant to the Security Documents and such
default (other than a default arising from the failure to deliver or perfect
Collateral) shall continue for at least 30 days after written notice to the
Borrower by the Administrative Agent or the Required Lenders; or
9.06 Judgments. One or more judgments or decrees shall be
entered against the Borrower or any of its Subsidiaries involving in the
aggregate for the Borrower or any of its Subsidiaries a liability (to the extent
not paid or fully covered (subject to a deductible not in excess of 5% of such
liability) by insurance) of $2,000,000 or more outstanding at any one time, and
either (i) enforcement proceedings shall have been commenced and shall be
continuing by any creditor upon such judgments or orders or (ii) there shall be
any period of 60 consecutive days during which a stay of enforcement of such
judgments or orders, by reason of a pending appeal or otherwise, shall not be in
effect; or
9.07 Change of Control. A Change of Control shall occur and be
continuing; or
9.08 Default Under Other Agreements. (a) The Borrower or any
of its Subsidiaries shall (i) default in any payment in respect of any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided as the instrument or agreement under which such Indebtedness was
created or (ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, any such
Indebtedness to become due prior to its stated maturity; or (b) any such
Indebtedness (other than the Obligations) of the Borrower or any such Subsidiary
shall be declared to be due and payable, or required to be prepaid other than by
a regularly scheduled required prepayment, prior to the stated maturity thereof,
provided that it shall not constitute an Event of Default pursuant to clause (a)
or (b) of this Section 9.08 unless the principal amount of any one issue of such
Indebtedness exceeds $2,500,000 or the aggregate amount of all such Indebtedness
referred to in clauses (a) and (b) above exceeds $5,000,000 at any one time; or
9.09 Bankruptcy, etc. (i) The Borrower or any of its
Subsidiaries shall commence voluntary cases concerning themselves under the
Bankruptcy Code; or an involuntary case is commenced against the Borrower or any
of its Subsidiaries and the petition is not controverted within 10 Business
Days, or is not dismissed within 30 days, after commencement of the case; or a
custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge
of, all or substantially all of the property of the Borrower or any of its
Subsidiaries; or the Borrower or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or such
Subsidiary; or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 30
days; or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 30 days; or the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or (ii) for any reason, the Confirmation Order or any provision
thereof, are reversed, nullified, vacated or rescinded and the effect of which
is to subject the Borrower, its Subsidiaries or any of their properties or
assets to the proceedings or actions described in clause (i) above; or
9.10 Subsidiary Guaranty. After the execution and delivery
thereof, the Subsidiary Guaranty or any provision thereof shall cease to be in
full force or effect (other than the release of any Subsidiary Guarantor in
accordance with the terms hereof or thereof), or any Subsidiary Guarantor or any
Person acting by or on behalf of any such Subsidiary Guarantor shall deny or
disaffirm such Subsidiary Guarantor's obligations under such Subsidiary Guaranty
or any such Subsidiary Guarantor shall default in the due performance or
observance of any material term, covenant or agreement on its part to be
performed or observed by it pursuant to the Guaranty;
then, and in any such event, and at any time thereafter if any Event of Default
shall then be continuing, the Administrative Agent shall upon the written
request of the Required Lenders, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of the
Administrative Agent, any Lender or the holder of any Note to enforce its claims
against the Borrower (provided that if an Event of Default specified in Section
9.09 shall occur with respect to the Borrower, the result which would occur upon
the giving of written notice by the Administrative Agent as specified in clauses
(i) and (ii) below shall occur automatically without the giving of any such
notice): (i) declare the Total Commitments terminated, whereupon the Commitments
of each Lender shall forthwith terminate immediately and any Commitment
Commission and Fees shall forthwith become due and payable without any other
notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and all Obligations owing hereunder to be, whereupon the
same shall become, forthwith due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; (iii) terminate any Letter of Credit which may be terminated in
accordance with its terms; (iv) declare all reimbursement obligations in respect
of all outstanding Letters of Credit, whether or not then due and payable or
matured, to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; (v) direct the Collateral Agent to enforce
any or all of the Liens and security interests created pursuant to this
Agreement and the Security Documents; (vi) apply any cash collateral held by the
Administrative Agent; and (vii) exercise any other rights or remedies
(including, without limitation, set-off rights) under the Credit Documents and
applicable law.
Section 10. Definitions.
10.01 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Adjusted Certificate of Deposit Rate" shall mean, on any day,
the sum (rounded to the nearest 1/100 of 1%) of (1) the rate obtained by
dividing (x) the most recent weekly average dealer offering rate for negotiable
certificates of deposit with a three-month maturity in the secondary market as
published in the most recent Federal Reserve System publication entitled "Select
Interest Rates," published weekly on Form H.15 as of the date hereof, or if such
publication or a substitute containing the foregoing rate information shall not
be published by the Federal Reserve System for any week, the weekly average
offering rate determined by the Administrative Agent on the basis of quotations
for such certificates received by it from three certificate of deposit dealers
in New York of recognized standing or, if such quotations are unavailable, then
on the basis of other sources reasonably selected by the Administrative Agent,
by (y) a percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable on such day to a
three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily net
annual assessment rate as estimated by the Administrative Agent for determining
the current annual assessment payable by the Administrative Agent to the Federal
Deposit Insurance Corporation for insuring three-month certificates of deposit.
"Adjusted Consolidated Net Income" for any period shall mean
Consolidated Net Income for such period plus, without duplication, the sum of
the amount of all net non-cash charges (including, without limitation,
depreciation, amortization (including amortization of dry docking expenses),
deferred tax expense and non-cash interest expense) and net non-cash losses
which were included in arriving at Consolidated Net Income for such period less
the sum of the amount of all net non-cash gains included in arriving at
Consolidated Net Income for such period.
"Adjusted Consolidated Working Capital" at any time shall mean
Consolidated Current Assets (but excluding therefrom all cash, Cash Equivalents
and Foreign Cash Equivalents) less Consolidated Current Liabilities.
"Adjusted Total Revolving Loan Commitment" shall mean at any
time the Total Revolving Loan Commitment less the aggregate Revolving Loan
Commitments of all Defaulting Lenders.
"Administrative Agent" shall mean BTCo, as administrative
agent for this Agreement, and any successor administrative agent appointed under
Section 11.09.
"Affected Eurodollar Loans" shall have the meaning provided in
Section 4.02(B)(a).
"Affiliate" shall mean, with respect to any Person, any other
Person (i) directly or indirectly controlling (including, but not limited to,
all directors and officers of such Person), controlled by, or under direct or
indirect common control with, such Person, or (ii) that directly or indirectly
owns more than 10% of the voting securities of such Person. A Person shall be
deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of Voting
Securities, by contract or otherwise.
"Agents" shall mean the Administrative Agent and the
Collateral Agent.
"Aggregate Unutilized Revolving Loan Commitments" shall mean,
at any time, the amount equal to (i) the Total Revolving Loan Commitment less
(ii) the sum of (x) the aggregate outstanding principal amount of Revolving
Loans and Swingline Loans and (y) the aggregate Letter of Credit Outstandings.
"Agreement" shall mean this Credit Agreement, as modified,
supplemented or amended from time to time.
"Applicable Margin" shall mean (A) in the case of Tranche A
Term Loans and Revolving Loans that are maintained as (x) Base Rate Loans,
2.25%, and (y) Eurodollar Loans, 3.25%, (B) in the case of Tranche B Term Loans
that are maintained as (x) Base Rate Loans, 2.75% and (y) Eurodollar Loans,
3.75% and (c) in the case of Tranche C Term Loans that are maintained as (x)
Base Rate Loans, 3.25% and (y) as Eurodollar Loans, 4.25%.
"Assignment and Assumption Agreement" shall mean the
Assignment and Assumption Agreement in the form of Exhibit N hereto
appropriately completed.
"Assignor" shall mean the Borrower and each Subsidiary
Guarantor.
"Bankruptcy Code" shall mean Title 11 of the United States
Code entitled "Bankruptcy", as in effect from time to time.
"Bankruptcy Court" shall mean the United States Bankruptcy
Court for the District of Delaware presiding over the chapter 11 cases of the
Borrower and Subsidiary Guarantors under consolidated Case No. 99-30 24 (PJW).
"Base Rate" at any time shall mean the higher of (x) the per
annum rate of interest which is 1/2 of 1% in excess of the Adjusted Certificate
of Deposit Rate and (y) the Prime Lending Rate as in effect from time to time.
"Base Rate Loans" shall mean any Loan designated as such by
the Borrower at the time of the incurrence thereof or conversion thereto.
"Borrower" shall have the meaning provided in the first
paragraph of this Agreement.
"Borrowing" shall mean the incurrence of one Type of Loan of a
single Tranche from all the Lenders having Commitments for the respective
Tranche (or from the Swingline Lender in the case of Swingline Loans) on a given
date (or resulting from conversions or continuations on a given date), having in
the case of Eurodollar Loans the same Interest Period, provided that Base Rate
Loans incurred pursuant to Section 1.10(b) shall be considered part of the
related Borrowing of Eurodollar Loans.
"BTCo" shall have the meaning provided in the first paragraph
of this Agreement.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking institutions
are authorized by law or other government action to close and (ii) with respect
to all notices and determinations in connection with, and payments of principal
and interest on, Eurodollar Loans, any day which is a Business Day described in
clause (i) above and which is also a day for trading by and between banks in the
interbank Eurodollar market.
"Capitalized Lease Obligations" of any Person shall mean all
rental obligations which, under GAAP, are or will be required to be capitalized
on the books of such Person, in each case taken at the amount thereof accounted
for as indebtedness in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof (provided that the full faith
and credit of the United States, is pledged in support thereof) having
maturities of not more than one year from the date of acquisition, (ii) time
deposits and certificates of deposit of any commercial bank or trust company
having, or which is the principal banking subsidiary of a bank holding company
or trust company organized under the laws of the United States, any State
thereof, the District of Columbia, or any foreign jurisdiction having capital,
surplus and undivided profits aggregating in excess of $200,000,000, with
maturities of not more than one year from the date of acquisition by such
Person, (iii) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (i) above entered into
with any bank meeting the qualifications specified in clause (ii) above, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-1 or the equivalent thereof by Standard & Poor's Corporation or at least
P-1 or the equivalent thereof by Moody's Investors Service, Inc., any having
such ratings and in each case maturing not more than one year after the date of
acquisition by such Person, (v) investments in money market funds substantially
all of whose assets are comprised of securities of the types described in
clauses (i) through (iv) above and (vi) demand deposit accounts maintained in
the ordinary course of business not in excess of $100,000 in the aggregate.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as same may be amended from time to
time.
"Change in Law" shall have the meaning provided in Section
9.04 of this Agreement.
"Change of Control" shall mean (a) the acquisition, whether
directly or indirectly, after the Effective Date by any Person or "group" as
defined in Section 13(d) (3) of the Securities Exchange Act of 1934, as amended,
of (i) shares, or the right to vote shares, constituting more than 30% of the
common stock or other voting securities of the Borrower or (ii) the power to
elect a majority of the Borrower's board of directors, (b) the election of a
majority of the Borrower's board of directors which does not consist of
Continuing Directors or (c) a "change of control" or similar event under the
Senior Secured Second Lien Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to the Code are to the Code, as in effect at the
date of this Agreement and any subsequent provisions of the Code amendatory
thereof, supplemental thereto or substituted therefor.
"Collateral" shall mean all the "Collateral" referred to in
the Security Documents.
"Collateral Agent" shall mean BTCo acting as collateral agent
pursuant to this Agreement and the Security Documents.
"Commitment" shall mean any of the Commitments of any Lender,
i.e., whether the Tranche A Term Loan Commitment, the Tranche B Term Loan
Commitment, the Tranche C Term Loan Commitment or the Revolving Loan Commitment.
"Commitment Commission" shall have the meaning provided in
Section 3.01(a).
"Company" shall mean any corporation, limited liability
company, partnership or other business entity (and the adjectival form thereof,
where appropriate).
"Concentration Account" shall have the meaning provided in
Section 6.25.
"Confidential Material" shall have the meaning provided in
Section 12.13.
"Confidentiality Agreement" shall mean an agreement in the
form of Exhibit O hereto.
"Confirmation Order" shall have the meaning provided in
Section 5.01(d).
"Consolidated Capital Expenditures" shall mean, the aggregate
of all expenditures by the Borrower and its Subsidiaries which should be
capitalized in accordance with GAAP, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance, dry docking and repairs which should be capitalized in
accordance with GAAP) and the amount of Capitalized Lease Obligations incurred
by the Borrower and its Subsidiaries which are required to be reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries.
"Consolidated Cash Interest Expense", shall mean, for any
period, the portion of Consolidated Interest Expense paid in cash.
"Consolidated Current Assets" shall mean, at any time, the
consolidated current assets of the Borrower and its Subsidiaries.
"Consolidated Current Liabilities" shall mean, at any time,
the consolidated current liabilities of the Borrower and its Subsidiaries at
such time plus the principal amount of outstanding Revolving Loans and Swingline
Loans.
"Consolidated EBIT" shall mean, for any period, the
Consolidated Net Income of the Borrower and its Subsidiaries, before
Consolidated Net Interest Expense and provision for taxes and without giving
effect to any extraordinary gains or losses or gains or losses from sales of
assets other than inventory sold in the ordinary course of business.
"Consolidated EBITDA" shall mean, for any period, Consolidated
EBIT, adjusted by adding thereto the amount of all amortization of intangibles,
all amounts accounted for as deferred dry docking expenses and depreciation, all
non-cash charges in respect of pension and retiree benefits, in each case that
were deducted in arriving at Consolidated EBIT for such period.
"Consolidated Fixed Charges" shall mean, for any period, the
sum during such period of (i) Consolidated Cash Interest Expense, (ii) cash
taxes paid, (iii) mandatory principal repayments of Indebtedness and (iv)
Consolidated Capital Expenditures.
"Consolidated Net Income" shall mean, for any period, the
consolidated net after tax income of the Borrower and its Subsidiaries
determined in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period,
the total consolidated interest expense of the Borrower and its Subsidiaries for
such period (calculated without regard to any limitations on the payment
thereof) plus, without duplication, that portion of Capitalized Lease
Obligations of the Borrower and its Subsidiaries representing the interest
factor for such period.
"Consolidated Subsidiaries" shall mean, as to the Borrower,
all Subsidiaries of the Borrower and all other Persons (including the Lightship
Tanker Entities) which are consolidated with the Borrower for financial
reporting purposes in accordance with GAAP.
"Consolidated Working Capital" at any time shall mean
Consolidated Current Assets less Consolidated Current Liabilities (but excluding
the current portion of the Term Loans).
"Contingent Obligation" shall mean, as to any Person, any
obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (x) for the purchase or payment of any such primary obligation or
(y) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the holder of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made (or, if less, the maximum
amount of such primary obligation for which such Person may be liable pursuant
to the terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Continuing Directors" shall mean the directors of the
Borrower on the Effective Date and each other director if such director's
nomination for the election to the board of directors of the Borrower is
recommended by a majority of the other Continuing Directors.
"Credit Documents" shall mean this Agreement, and once
executed and delivered pursuant to the terms of this Agreement, each Note, each
Security Document and the Subsidiary Guaranty.
"Credit Event" shall mean the making of any Loan or the
issuance of any Letter of Credit.
"Credit Party" shall mean the Borrower and each Subsidiary
Guarantor.
"Customary Permitted Liens" shall mean
(i) Liens (other than any Lien imposed under ERISA) for taxes,
assessments or charges of any government authority or claims not yet
due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with the
provisions of generally accepted accounting principles;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens (other than any
Lien imposed under ERISA) imposed by law created in the ordinary course
of business for amounts not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained
in accordance with GAAP or which in the aggregate do not detract from
the value of the Borrower or any Subsidiary's property or assets or
materially impair the use thereof in the operation of the business of
the Borrower or such Subsidiary;
(iii) licenses, leases or subleases granted to other Persons in
the ordinary course of business not materially interfering with the
conduct of the business of the Borrower and its Subsidiaries taken as a
whole;
(iv) easements, rights-of-way, restrictions (including zoning
restrictions), encroachments, protrusions and other similar charges or
encumbrances, and minor title deficiencies, in each case whether now or
hereafter in existence, not securing Indebtedness and not materially
interfering with the conduct of the business of the Borrower or any of
its Subsidiaries;
(v) rights of tenants, subtenants, franchisees or parties in
possession (other than a debtor in possession, trustee in bankruptcy or
receiver of the Borrower), or options or rights of first refusal,
whether pursuant to leases, subleases, franchise agreements, other
occupancy agreements or otherwise, if such rights were vested on the
Effective Date or created thereafter in the ordinary course of business
in transactions permitted under this Agreement;
(vi) any interest or title of a lessor, sublessor, licensee or
licensor under any lease or license agreement permitted by this
Agreement;
(vii) Liens in favor of a banking institution arising as a matter
of law encumbering deposits (including the right of set-off) held by
such banking institutions incurred in the ordinary course of business
and which are within the general parameters customary in the banking
industry;
(viii) Liens in favor of customs and revenue authorities arising
as a matter of law to secure the payment of customs duties in
connection with the importation of goods;
(ix) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the purchase or sale of goods
entered into by the Borrower or any of its Subsidiaries in the ordinary
course of business in accordance with the past practices of the
Borrower and its Subsidiaries; and
(x) deposits made to secure statutory obligations in the form
of excise taxes.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean any Lender with respect to
which a Lender Default is in effect.
"DIP Facility" shall have the meaning provided in the recitals
to this Agreement.
"Disclosure Statement" shall mean the disclosure statement in
the form of the Debtors' Disclosure Statement with respect to the First Amended
Joint Plan of Reorganization pursuant to Section 1125 of the Bankruptcy Code,
dated November 1, 1999.
"Dividend" with respect to any Person shall mean that such
Person has declared or paid a dividend or returned any equity capital to its
stockholders or authorized or made any other distribution, payment or delivery
of property (other than common stock of such Person) or cash to its stockholders
as such, or redeemed, retired, purchased or otherwise acquired, directly or
indirectly, for consideration any shares of any class of its capital stock
outstanding on or after the Effective Date (or any options or warrants issued by
such Person with respect to its capital stock), or set aside any funds for any
of the foregoing purposes, or shall have permitted any of its Subsidiaries to
purchase or otherwise acquire for consideration any shares of any class of the
capital stock of such Person outstanding on or after the Effective Date (or any
options or warrants issued by such Person with respect to its capital stock).
Without limiting the foregoing, "Dividends" with respect to any Person shall
also include all payments made or required to be made by such Person with
respect to any stock appreciation rights, plans, equity incentive or achievement
plans or any similar plans or setting aside of any funds for the foregoing
purposes.
"Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States (expressed in dollars).
"Domestic Subsidiary" shall mean each Subsidiary of the
Borrower incorporated or organized in the United States or any State or
territory thereof.
"Drawing" shall have the meaning provided in Section 2.04(b).
"Effective Date" shall have the meaning provided in Section
5.01.
"Eligible Transferee" shall mean and include a commercial
bank, financial institution or other institutional "accredited investor" (as
defined in Regulation D of the Securities Act).
"Employment Agreements" shall mean any employment related
agreements to which the Borrower and/or the Subsidiary Guarantors is a party.
"Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law or any permit issued,
or any approval given, under any such Environmental Law (hereafter, "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief in connection
with alleged injury or threat of injury to health, safety or the environment due
to the presence of Hazardous Materials.
"Environmental Law" means any applicable federal, state,
provincial, foreign or local statute, law, rule, regulation, ordinance, code,
binding and enforceable guideline, binding and enforceable written policy or
rule of common law now or hereafter in effect and in each case as amended, or
any binding judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, to the extent
binding on the Borrower or any of its Subsidiaries, relating to the environment,
employee health and safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control Act, 33 USC. ss.
1251 et seq.; the Toxic Substances Control Act, 15 USC. ss. 2601 et seq.; the
Clean Air Act, 42 USC. ss. 7401 et seq.; the Safe Drinking Water Act, 42 USC.
ss. 3803 et seq.; the Oil Pollution Act of 1990, 33 USC. ss. 2701 et seq.; the
Emergency Planning and the Community Right-to-Know Act of 1986, 42 USC. ss.
11001 et seq.; the Hazardous Material Transportation Act, 49 USC. ss. 1801 et
seq.; and the Occupational Safety and Health Act, 29 USC. ss. 651 et seq. (to
the extent it regulates occupational exposure to Hazardous Materials); any state
and local or foreign counterparts or equivalents, in each case as amended from
time to time.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder. Section references to ERISA are to ERISA, as in
effect at the date of this Agreement, and any subsequent provisions of ERISA,
amendatory thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with the Borrower or a Subsidiary of the
Borrower would be deemed to be a "single employer" (i) within the meaning of
Section 414(b), (c), (m) or (o) of the Code or (ii) as a result of the Borrower
or a Subsidiary of the Borrower being or having been a general partner of such
person.
"Escrow Agreement" shall mean the escrow agreement created for
the interest paid under the Senior Secured Second Lien Notes.
"Eurodollar Loan" shall mean any Loan (excluding Swingline
Loans) designated as such by the Borrower at the time of the incurrence thereof
or conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to
first-class banks in the New York interbank Eurodollar market by the
Administrative Agent for Dollar deposits of amounts in immediately available
funds comparable to the outstanding principal amount of the Eurodollar Loan of
the Administrative Agent with maturities comparable to the Interest Period
applicable to such Eurodollar Loan commencing two Business Days thereafter as of
10:00 A.M. (New York time) on the date which is two Business Days prior to the
commencement of such Interest Period, divided (and rounded off to the nearest
1/100 of 1%) by (b) a percentage equal to 100% minus the then stated maximum
rate of all reserve requirements (including, without limitation, any marginal,
emergency, supplemental, special or other reserves required by applicable law)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency funding or liabilities as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section
9.
"Excess Cash Flow" shall mean, for any period, the remainder
of (a) the sum of (i) Adjusted Consolidated Net Income for such period, and (ii)
the decrease, if any, in Adjusted Consolidated Working Capital from the first
day to the last day of such period, minus (b) the sum of (i) the amount of
Consolidated Capital Expenditures made by the Borrower and its Subsidiaries on a
consolidated basis during such period, in each case except to the extent
financed with the proceeds of Indebtedness or pursuant to Capitalized Lease
Obligations, (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the Borrower and its Subsidiaries and the
permanent repayment of the principal component of Capitalized Lease Obligations
of the Borrower and its Subsidiaries or deposits for debt service reserves
(including, without limitation reserve fund payments required to be deposited
pursuant to Title XI guarantee financing documents, (excluding (1) payments with
proceeds of sale of assets, (2) payments with the proceeds of other Indebtedness
or equity and (3) payments of Loans or other Obligations, provided that
repayments of Loans shall be deducted in determining Excess Cash Flow if such
repayments were (x) required as a result of a Scheduled Repayment under Section
4.02(A)(d), 4.02(A)(e) or 4.02(A)(f) (but not as a reduction to the amount of
Scheduled Repayments pursuant to another provision of this Agreement) or (y)
made as a voluntary prepayment pursuant to Section 4.01 with internally
generated funds (but in the case of a voluntary prepayment of Revolving Loans or
Swingline Loans, only to the extent accompanied by a voluntary reduction to the
Total Revolving Loan Commitment)) during such period and (iii) the increase, if
any, in Adjusted Consolidated Working Capital from the first day to the last day
of such period.
"Excess Cash Payment Date" shall mean the date occurring 120
days after the last day of each fiscal year of the Borrower, beginning with the
fiscal year of the Borrower ending December 31, 2000.
"Excess Cash Payment Period" shall mean, with respect to the
repayment required on each Excess Cash Payment Date, the immediately preceding
fiscal year of the Borrower.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Existing Indebtedness" shall have the meaning provided in
Section 6.19.
"Existing Indebtedness Agreements" shall have the meaning
provided in Section 5.01(q).
"Existing Letters of Credit" shall mean the letters of credit
of the Borrower outstanding on the Effective Date.
"Facing Fee" shall have the meaning provided in Section
3.01(b).
"Federal Funds Rate" shall mean for any period, a fluctuating
interest rate equal for each day during such period 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 which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred
to in Section 3.01.
"First Preferred Vessel Value" shall have the meaning provided
in Section 8.09.
"Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of (x) Consolidated EBITDA for such period plus (i) $20 million for the
period ending December 31, 2000, (ii) $15 million for the period ending March
31, 2001 and (iii) $10 million for each period ending on the last day of each
fiscal quarter thereafter to (y) Consolidated Fixed Charges for such period.
"Foreign Cash Equivalents" shall mean, as to any Person, (i)
securities issued or directly and fully guaranteed or insured by a foreign
nation (i.e., nations other than the United States or any agency or
instrumentality thereof), provided that the full faith and credit of such nation
is pledged in support thereof having maturities of not more than one year from
such date of acquisition, (ii) time deposits and certificates of deposit of any
foreign commercial bank having, or which is the principal banking subsidiary of
a bank holding company organized under the laws of any foreign nation or any
state, province, district, or jurisdiction thereof, having capital, surplus and
undivided profits aggregating in excess of $200,000,000, with maturities of not
more than one year from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than 90 days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (ii) above, (iv) commercial paper issued by
any Person incorporated or organized in any foreign nation rated at least A-1 or
the equivalent thereof by Standard & Poor's Rating Services or at least P-1 or
the equivalent thereof of Moody's Investors Service, Inc. and in each case
maturing not more than one year after the date of acquisition by such Person,
(v) investments in money market funds substantially all of whose assets are
comprised of securities of the types described in clauses (i) through (iv) above
and (vi) demand deposit accounts maintained in the ordinary course of business.
"Foreign Pension Plan" shall mean any plan, fund (including,
without limitation, any superannuation fund) or other similar program
established or maintained outside the United States of America by the Borrower
or any one or more of its Subsidiaries primarily for the benefit of employees of
the Borrower or such Subsidiaries residing outside the United States of America,
which plan, fund or other similar program provides, or results in, retirement
income, a deferral of income in contemplation of retirement or payments to be
made upon termination of employment, and which plan is not subject to ERISA or
the Code.
"Foreign Subsidiary" shall mean each Subsidiary of the
Borrower which is not a Domestic Subsidiary.
"GAAP" shall have the meaning provided in Section 12.07(a).
"Governmental Authority" shall mean any government,
parliament, legislature, regulatory authority, agency, commission, tribunal,
department, commission, board, instrumentality, court, arbitration board or
arbitrator or other law, regulation or rule making entity (including a Minister
of the Crown) having or purporting to have jurisdiction on behalf of, or
pursuant to the laws of, any country in which any Credit Party is organized,
continued, amalgamated, merged or otherwise created or established or in which
any Credit Party carries on business or holds property, or any province,
territory, state, municipality, district or political subdivision of any such
country or of any such state, province or territory of such country.
"Hazardous Materials" means (a) any petroleum or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included in
the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous substances," "restricted hazardous waste,"
"toxic substances," "toxic pollutants," "contaminants," "dangerous goods," or
"pollutants," or words of similar import, under any applicable Environmental
Law; and (c) any other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority under
Environmental Laws.
"Hedging Agreement" shall mean any interest rate protection
contracts, foreign exchange contracts, currency swap agreements, commodity
agreements or other similar agreements or arrangements designed to protect
against the fluctuations in interest rates or currency or commodity values.
"Indebtedness" shall mean, as to any Person, without
duplication, (i) all indebtedness (including principal, interest, fees and
charges) of such Person for borrowed money or for the deferred purchase price of
property or services, (ii) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (iii) all liabilities of the types
described in clauses (i), (ii), (iv), (v), (vi) and (vii) secured by any Lien on
any property owned by such Person (to the extent of the value of the respective
property), whether or not such liabilities have been assumed by such Person,
(iv) the aggregate amount required to be capitalized under leases under which
such Person is the lessee, (v) all Contingent Obligations of such Person (other
than Contingent Obligations arising from the guaranty by such Person of the
obligations of the Borrower and/or its Subsidiaries to the extent that such
guaranteed obligations do not constitute Indebtedness and are permitted
hereunder), (vi) all obligations of such Person to pay a specified purchase
price for goods or services, whether or not delivered or accepted, i.e.,
"take-or-pay" or other similar arrangements and (vii) all obligations of such
Person under Hedging Agreements, provided that Indebtedness shall not include
Trade Payables and accrued expenses, in each case arising in the ordinary course
of business.
"Insurance Assignments" shall have the meaning provided in
Section 5.01(n).
"Insurance Proceeds" shall have the meeting provided in
Section 4.02(A)(j).
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section
1.09.
"Issuing Lender" shall mean BTCo (or any affiliate of BTCo,
which shall include, without limitation Deutsche Bank AG, New York Branch) and
any Lender which at the request of the Borrower and with the consent of the
Administrative Agent agrees, in such Lender's sole discretion, to become an
Issuing Lender for the purpose of issuing Letters of Credit pursuant to Section
2. The sole Issuing Lender on the Effective Date is BTCo.
"LC Sublimit" shall have the meaning provided in Section
2.01(c).
"L/C Supportable Obligations" shall mean any obligations of
the Borrower and its Subsidiaries entered into in compliance with law and this
Agreement.
"Lender" shall mean each financial institution listed on
Schedule I, as well as any Person which becomes a "Lender" hereunder pursuant to
Sections 1.13 and 12.04(b).
"Lender Default" shall mean (i) the refusal (which has not
been retracted) of a Lender to make available its portion of any Borrowing or to
fund its portion of any unreimbursed payment under Section 2.03(c) or (ii) a
Lender having notified in writing the Borrower and/or the Administrative Agent
that it does not intend to comply with its obligations under Sections 1.01 or
2.03 or having otherwise repudiated its Commitment.
"Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Letter of Credit Fee" shall have the meaning provided in
Section 3.01(b).
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate of the Stated Amount of each outstanding Letter of
Credit in respect of which the Termination Date has not occurred and (ii) the
aggregate amount of all Unpaid Drawings.
"Letter of Credit Request" shall have the meaning provided in
Section 2.02(a).
"Leverage Ratio" shall mean, for any period, the ratio of (i)
Indebtedness for borrowed money and reimbursement obligations in respect of
letters of credit (including Letters of Credit) on the last day of such period
to (ii) Consolidated EBITDA for the Test Period most recently ended; provided
that Consolidated EBITDA for the Test Periods ending March 31, 2000, June 30,
2000 and September 30, 2000, Consolidated EBITDA shall be multiplied by 4, 2 and
4/3, respectively.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing or similar statement or notice filed under
the UCC or any other applicable personal property security legislation in any
jurisdiction or any other similar recording or notice statute, and any lease
having substantially the same effect as any of the foregoing).
"Lightship Tanker Entities" shall mean Lightship Tanker
Holdings, L.L.C., Lightship Partners, L.P., Lightship Tankers I, L.L.C.,
Lightship Tankers II, L.L.C., Lightship Tankers III, L.L.C., Lightship Tankers
IV, L.L.C., Lightship Tankers V, L.L.C., Delaware Tanker Holdings I, Inc.,
Delaware Tanker Holdings II, Inc., Delaware Tanker Holdings III, Inc., Delaware
Tanker Holdings IV, Inc., Delaware Tanker Holdings V, Inc. and Tankers L.L.C.
"Loan" shall mean each Tranche A Term Loan, each Tranche B
Term Loan, each Tranche C Term Loan, each Revolving Loan, and each Swingline
Loan.
"Majority Lenders" of any Tranche shall mean the
Non-Defaulting Lenders which would constitute the Required Lenders under, and as
defined in, this Agreement if all outstanding Obligations of the other Tranches
under this Agreement were repaid in full and all Commitments with respect
thereto were terminated.
"Management Agreements" shall mean any material agreements
with members of, or with respect to, the management of the Borrower or any of
its Subsidiaries.
"Margin Stock" shall have the meaning provided in Regulation U
of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" shall mean a material adverse change
in the business, properties, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of the Borrower and its Subsidiaries
taken as a whole.
"Maturity Date" shall mean with respect to any Tranche of
Loans, the Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity
Date, the Tranche C Term Loan Maturity Date, the Revolving Loan Maturity Date as
the case may be.
"Maximum Swingline Amount" shall mean $5,000,000.
"Mortgaged Vessels" shall have the meaning provided in Section
5.01(l), and shall include any Vessels which become subject to a Vessel Mortgage
in accordance with Section 7.08.
"Minimum Borrowing Amount" shall mean (i) for Term Loans and
Revolving Loans maintained as Base Rate Loans, $2,500,000, (ii) for Term Loans
and Revolving Loans maintained as Eurodollar Loans, $5,000,000 and (iii) for
Swingline Loans, $50,000.
"Net Sale Proceeds" shall mean for any sale, lease, transfer
or other disposition of assets of the Borrower or any of its Subsidiaries, the
gross cash proceeds (including any cash received by way of deferred payment
pursuant to a promissory note, receivable or otherwise, but only as and when
received) received by the Borrower or any of its Subsidiaries from such sale,
lease, transfer or other disposition, net of transaction costs (including,
without limitation, any underwriting, brokerage or other customary selling
commissions, taxes payable (or reasonably estimated to be payable) within one
year of the disposition and reasonable legal, advisory and other fees and
expenses, including title and recording expenses and reasonable expenses
incurred for preparing such assets for sale, associated therewith) and the
amount of such gross cash proceeds required to be used to repay any Indebtedness
(other than Indebtedness of the Lenders pursuant to this Agreement) which is
senior to the Indebtedness of the Lenders pursuant to this Agreement and secured
by the assets sold.
"Non-Defaulting Lender" shall mean and include each Lender
other than a Defaulting Lender.
"Note" shall mean each Tranche A Term Note, each Tranche B
Term Note, each Tranche C Term Note, each Revolving Note and the Swingline Note.
"Note Subsidiary Guaranty" shall be the guaranty of the
obligations of the Borrower under the Senior Secured Second Lien Notes as set
forth in the Senior Secured Second Lien Documents.
"Notice of Borrowing" shall have the meaning provided in
Section 1.02(a).
"Notice of Conversion/Continuation" shall have the meaning
provided in Section 1.06.
"Notice Office" shall mean the office of the Administrative
Agent shown opposite its name on the signature pages hereof, or such other
office as the Administrative Agent may hereafter designate in writing as such to
the other parties hereto.
"Obligations" shall mean all amounts owing to the
Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender
pursuant to the terms of this Agreement or any other Credit Document.
"Participant" shall have the meaning provided in Section
2.03(a).
"Payment Office" shall mean the office of BTCo located at 130
Liberty Street, New York, New York or such other office as the Administrative
Agent may designate to the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA or any successor thereto.
"Permitted Existing Liens" shall have the meaning provided in
Section 8.01(i).
"Permitted Liens" shall have the meaning provided in Section
8.01.
"Person" shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company, association, trust or
other enterprise or any government or political subdivision or any agency,
department or instrumentality thereof.
"Plan" shall mean any pension plan, as defined in Section 3(2)
of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of), the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, a Subsidiary of the Borrower or
an ERISA Affiliate maintained, contributed or had an obligation to contribute to
such plan.
"Plan Effective Date" shall mean the "Effective Date" under
and as defined in the Reorganization Plan.
"Pledge Agreement" shall have the meaning provided in Section
5.01(k), and shall include any pledge agreement entered into in accordance with
Section 7.08.
"Prime Lending Rate" shall mean the per annum rate of interest
which BTCo announces from time to time as its prime lending rate, the Prime
Lending Rate to change when and as such prime lending rate changes. The Prime
Lending Rate is a reference rate and does not necessarily represent the lowest
or best rate actually charged to any customer. The Administrative Agent may make
commercial loans or other loans at rates of interest at, above or below the
Prime Lending Rate.
"Proceeds" shall have the meaning provided in the Uniform
Commercial Code as in effect in the State of New York on the date hereof or
under other relevant law and, in any event, shall include, but not be limited
to, (i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to the Collateral Agent or the Borrower from time to time with respect
to any of the Collateral, (ii) any and all payments (in any form whatsoever)
made or due and payable to the Borrower from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority (or any person acting under
color of governmental authority) and (iii) any and all other amounts from time
to time paid or payable under or in connection with any of the Collateral.
"Projections" shall mean the projections of the Borrower dated
December 15, 1999 and delivered to the Lenders prior to the Effective Date.
"Proportionate Share" shall mean, with respect to any Lender,
a fraction (expressed as a percentage), the numerator of which shall be the
amount of such Lender's Revolving Loan Commitment, and the denominator of which
shall be the Total Revolving Commitment, or, if the Total Revolving Loan
Commitments are terminated, a fraction the numerator of which shall be the
amount of such Lender's outstanding Revolving Loans and the denominator of which
shall be the aggregate amount of then outstanding Revolving Loans, of all the
Lenders.
"Quarterly Payment Date" shall mean the last Business Day of
April, July, October and January occurring after the Effective Date.
"RCRA" shall mean the Resource Conservation and Recovery Act,
as same may be amended from time to time 42 USC.ss.6901 et seq.
"Real Property" shall mean all of the right, title and
interest of any Person in and to land, improvements and fixtures, including
leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any
of its Subsidiaries of any cash insurance proceeds or condemnation award payable
(i) by reason of theft, loss, physical destruction or damage, condemnation
action or conveyance in lieu thereof or any other similar event with respect to
any property or assets of the Borrower or any of its Subsidiaries, (ii) under
any policy of insurance required to be maintained under Section 7.03 or (iii) by
any condemning authority (or any authority receiving a conveyance in lieu of
condemning the subject property).
"Register" shall have the meaning provided in Section 12.14.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
"Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping,
disposing or migration into the environment.
"Released Creditors" shall mean and include all creditors
holding any claims relating to Indebtedness or preferred stock or otherwise of
the Borrower or its Subsidiaries (or their predecessors in interest) which are
repaid, converted into equity, cancelled or extinguished in connection with the
consummation of the Reorganization Plan.
"Reorganization Plan" shall mean the Plan of Reorganization in
the form of the Debtors' First Amended Joint Plan of Reorganization under
Chapter 11 of the Bankruptcy Code, dated November 1, 1999, and all exhibits and
annexes thereto, as modified by the Confirmation Order.
"Replaced Lender" shall have the meaning provided in Section
1.13.
"Replacement Lender" shall have the meaning provided in
Section 1.13.
"Reportable Event" shall mean an event described in Section
4043(c) of ERISA with respect to a Plan that is subject to Title IV of ERISA
other than those events as to which the 30-day notice period is waived under
subsection .22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
"Required Lenders" at any time shall mean Non-Defaulting
Lenders whose outstanding Term Loans and Revolving Loan Commitments (or after
the termination thereof, outstanding Revolving Loans, and Proportionate Share of
outstanding Swingline Loans and Letters of Credit Outstandings) represent an
amount greater than 50% of the sum of all outstanding Term Loans of
Non-Defaulting Lenders and the Adjusted Total Revolving Loan Commitment (or, if
the Adjusted Total Revolving Loan Commitment has been terminated, of the
Adjusted Total Revolving Loan Commitment as in effect immediately prior to such
termination).
"Responsible Officer" shall mean the Chief Financial Officer,
the Chief Executive Officer (or any person having a similar capacity), any
senior vice-president, director of treasury and finance and any other officer
designated by the Chief Financial Officer of the Borrower acceptable to the
Administrative Agent.
"Returns" shall have the meaning provided in Section 6.09.
"Revolving Loan" shall have the meaning provided in Section
1.01(d).
"Revolving Loan Commitment" shall mean, for each Lender, the
amount set for the opposite such lender's name in Schedule I hereto directly
below the column entitled "Revolving Loan Commitment", as same may be reduced
from the time pursuant to Sections 3.02, 3.03, 4.02 and/or 9 or adjusted from
time to time as a result of assignments to or from such Lender pursuant to
Section 1.13 or 12.04(b).
"Revolving Loan Maturity Date" shall mean December 15, 2004.
"Revolving Note" shall have the meaning provided in Section
1.05(e).
"SEC" shall have the meaning provided in Section 7.01(d).
"Scheduled Repayments" shall mean Tranche A Scheduled
Repayments, Tranche B Scheduled Repayments, and Tranche C Scheduled Repayments.
"Second Preferred Mortgage" shall have the meaning provided in
Section 5.01(l).
"Section 4.04(b)(ii) Certificate" shall have the meaning
provided in Section 4.04(b)(ii).
"Security Agreement" shall have the meaning provided in
Section 5.01(i), and shall include any security agreement entered into in
accordance with Section 7.08.
"Security Documents" shall mean all contracts, instruments and
other documents now or hereafter executed and delivered in connection with this
Agreement (including Section 7.08), pursuant to which liens and security
interests are granted to the Collateral Agent for the benefit of the Lenders,
including without limitation, each Vessel Mortgage, the Security Agreement, the
Insurance Assignments, and the Pledge Agreement.
"Senior Secured Second Lien Documents" shall mean all
documents and agreements evidencing or entered in connection with the issuance
of the Senior Secured Second Lien Notes, including the Senior Secured Second
Lien Indenture, the guaranty executed substantially in the form of exhibit E
thereto, and the Escrow Agreement, as the same may be modified, amended or
supplemented from time to time in accordance with the terms hereof or thereof.
"Senior Secured Second Lien Indenture" shall mean the
Indenture, dated December 15, 1999, between the Borrower and State Street Bank
and Trust Company of Connecticut, N.A., as Trustee as the same may be modified,
amended or supplemented from time to time in accordance with the terms hereof
and thereof.
"Senior Secured Second Lien Notes" shall mean the Borrower's
senior secured second lien notes, issued pursuant to the Senior Secured Second
Lien Indenture in accordance with Section 5.01(t), as the same may be modified,
supplemented or amended from time to time pursuant to the terms hereof and
thereof.
"Shareholder Agreements" shall mean all agreements entered
into by the Borrower or any of its Subsidiaries governing the terms and relative
rights of their capital stock.
"Standby Letters of Credit" shall have the meaning provided in
Section 2.01(a) of this Agreement.
"Stated Amount" of each Letter of Credit shall mean the
maximum amount available to be drawn thereunder, determined without regard to
whether any conditions to drawing could then be met, as such amount may be
reduced from time to time in accordance with the terms of such Letter of Credit
(determined without regard to whether any conditions to drawing could then be
met).
"Subsidiary" shall mean, as to any Person, (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any limited liability company,
partnership, association, joint venture or other entity in which such Person
and/or one or more Subsidiaries of such Person has more than a 50% equity
interest at the time. For purposes of this Agreement the Lightship Entities
shall not be considered Subsidiaries of the Borrower so long as their
liabilities and obligations are without recourse to, and are not and do not
become liabilities or obligations of, the Borrower and its other Subsidiaries.
"Subsidiary Guarantor" shall mean each direct and indirect
Subsidiary of the Borrower designated as "Subsidiary Guarantor" on Schedule II
hereto, and each new Subsidiary created or acquired in accordance with Section
7.08.
"Subsidiary Guaranty" shall have the meaning provided in
Section 5.01(j), and shall include any guaranty entered into in accordance with
Section 7.08.
"Swingline Expiry Date" shall mean the date which is two
Business days prior to the Revolving Loan Maturity Date.
"Swingline Lender" shall mean BTCo.
"Swingline Loan" shall have the meaning provided in Section
1.01(e).
"Swingline Note" shall have the meaning provided in Section
1.05(a).
"Syndication Date" shall mean that date upon which the
Administrative Agent determines (and notifies the Borrower) that the primary
syndication has been completed.
"Taxes" shall have the meaning provided in Section 4.04.
"Tax Sharing Agreements" shall mean all tax sharing, tax
allocation and other similar agreements entered into by the Borrower and/or any
of its Subsidiaries.
"Term Loan" shall mean each Tranche A Term Loan, each Tranche
B Term Loan and each Tranche C Term Loan.
"Term Loan Commitment" shall mean each Tranche A Term Loan
Commitment, each Tranche B Term Loan Commitment and each Tranche C Term Loan
Commitment, with the Term Loan Commitment of any Lender at any time to equal the
sum of its Tranche A Term Loan Commitment, Tranche B Term Loan Commitment and
each Tranche C Term Loan Commitment as then in effect.
"Termination Date" shall mean with respect to each Letter of
Credit (x) if no drawing is made thereunder, the final expiration date thereof
or such earlier date on which such Letter of Credit was cancelled and returned
to the respective Issuing Lender or (y) if a drawing or drawings are made
thereunder, the date of payment of the final drawing thereunder as provided by
the terms thereof.
"Test Period" shall mean (i) for the first three Test Periods
ending after the Effective Date, the periods beginning on January 1, 2000 and
ending on March 31, 2000, June 30, 2000 and September 30, 2000, respectively (in
each case taken as one accounting period) and (ii) for each Test Period ending
thereafter, the four consecutive fiscal quarters then ended (taken as one
accounting period).
"Total Commitments" shall mean, at any time, the sum of the
Commitments of each of the Lenders (which on the Effective Date shall be
$225,000,000).
"Total Revolving Loan Commitment" shall mean, at any time, the
sum of the Revolving Loan Commitments of each of the Lenders (which on the
Effective Date shall be $25,000,000).
"Total Term Loan Commitment" shall mean, at any time, the sum
of the total Tranche A Term Loan Commitment, Total Tranche B Term Loan
Commitment and Total Tranche C Term Loan Commitment (which on the Effective Date
shall be $200,000,000).
"Total Tranche A Term Loan Commitment" shall mean, at any
time, the sum of the Tranche A Term Loan Commitments of each of the Lenders
(which on the Effective Date shall be $75,000,000).
"Total Tranche B Term Loan Commitment" shall mean, at any
time, the sum of the Tranche B Term Loan Commitments of each of the Lenders
(which on the Effective Date shall be $30,000,000).
"Total Tranche C Term Loan Commitment" shall mean, at any
time, the sum of the Tranche C Term Loan Commitments of each of the Lenders
(which on the Effective Date shall be $95,000,000).
"Total Unutilized Revolving Loan Commitment" shall mean, at
any time, an amount equal to the remainder of the then Total Revolving Loan
Commitment, less the sum of the aggregate principal amount of Revolving Loans
and Swingline Loans then outstanding plus the then aggregate amount of Letter of
Credit Outstandings.
"Trade Letters of Credit" shall have the meaning provided in
Section 2.01(a) of this Agreement.
"Trade Payables" shall mean, as of any date of determination,
the accounts payable of the Borrower determined in accordance with generally
accepted accounting principles in favor of trade vendors.
"Tranche" shall mean the respective facility and commitments
utilized in making Loans hereunder, with there being four separate Tranches,
i.e., Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans and
Revolving Loans.
"Tranche A Scheduled Repayment" shall have the meaning
provided in Section 4.02(A)(d).
"Tranche A Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(A)(d).
"Tranche A Term Loan" shall have the meaning provided in
Section 1.01(a).
"Tranche A Term Loan Commitment" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto directly
below the column entitled "Tranche A Term Loan Commitment" as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 12.04(b).
"Tranche A Term Loan Maturity Date" shall mean December 15,
2004.
"Tranche A Term Note" shall have the meaning provided in
Section 1.03(a)
"Tranche B Scheduled Repayment" shall have the meaning
provided in Section 4.02(A)(e).
"Tranche B Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(A)(e).
"Tranche B Term Loan" shall have the meaning provided in
Section 1.01(b).
"Tranche B Term Loan Commitment" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto directly
below the column entitled "Tranche B Term Loan Commitment", as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 12.04(b).
"Tranche B Term Loan Maturity Date" shall mean December 15,
2005.
"Tranche B Term Note" shall have the meaning provided in
Section 1.05(a).
"Tranche C Scheduled Repayment" shall have the meaning
provided in Section 4.02(A)(f).
"Tranche C Scheduled Repayment Date" shall have the meaning
provided in Section 4.02(A)(f).
"Tranche C Term Loan" shall have the meaning provided in
Section 1.01(c).
"Tranche C Term Loan Commitment" shall mean, for each Lender,
the amount set forth opposite such Lender's name in Schedule I hereto directly
below the column entitled "Trance C Term Loan Commitment", as same may be (x)
reduced from time to time pursuant to Sections 3.03, 4.02 and/or 9 or (y)
adjusted from time to time as a result of assignments to or from such Lender
pursuant to Section 1.13 or 12.04(b).
"Tranche C Term Loan Maturity Date" shall mean December 15,
2006.
"Tranche C Term Note" shall have the meaning provided in
Section 1.05(a).
"Type" shall mean any type of Loan determined with respect to
the interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar
Loan.
"UCC" shall mean the Uniform Commercial Code as from time to
time in effect in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan means the amount, if
any, by which the value of the accumulated plan benefits under the Plan
determined on a plan termination basis in accordance with actuarial assumptions
at such time consistent with those prescribed by the PBGC for purposes of
Section 4044 of ERISA, exceeds the fair market value of all plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions).
"United States" and "US" shall each mean the United States of
America.
"Unpaid Drawings" shall have the meaning provided in Section
2.04(a).
"Unutilized Revolving Loan Commitment" shall mean for each
Lender, at any time, the amount, if positive, equal to (x) such Lender's
Revolving Loan Commitment at such time less (y) the sum of (i) the aggregate
outstanding principal amount of all Revolving Loans made by such Lender and (ii)
such Lender's Proportionate Share of the Letter of Credit Outstandings at such
time that have not been converted to Revolving Loans.
"Unutilized Excess Cash Flow" shall mean for any period, the
Excess Cash Flow of the Borrower and its Subsidiaries in excess of the amount
required to be applied to repay Term Loans or reduce the Total Revolving Loan
Commitment pursuant to the terms of this Agreement.
"Vessel" shall mean, collectively, all vessels owned by the
Borrower and its Subsidiaries, and, individually, any of such vessels.
"Vessel Mortgages" shall have the meaning provided in Section
5.01(l), and shall include any vessel mortgages entered into in accordance with
Section 7.08.
"Waivable Repayment" shall have the meaning provided in
Section 4.02(B)(c).
"Warrants" shall have the meaning provided in Section
4.02(A)(h).
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i)
any corporation, 100% of whose capital stock (other than directors' qualifying
shares) is at the time owned by such Person and/or one or more Wholly-Owned
Subsidiaries of such Person and (ii) any limited liability company, partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Working Capital Ratio" shall mean the ratio of Consolidated
Current Assets to Consolidated Current Liabilities.
"written" or "in writing" shall mean any form of written
communication or a communication by means of telex, telecopier or facsimile
device, telegraph or cable.
"Year 2000 Problem" shall mean any significant risk that
computer hardware or software used in the Borrower's or its respective
Subsidiaries' business or operations will not store and provide data input
information without creating an ambiguity as to the century.
10.02 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes, any other Credit Document or any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in the Notes, any other Credit Document
and any certificate or other document made or delivered pursuant hereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
subsection 10.01 and accounting terms partly defined in subsection 10.01 to the
extent not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified.
Section 11. The Administrative Agent.
11.01 Appointment. (a) Each Lender hereby designates BTCo as
Administrative Agent (for purposes of this Section 11, the term "Administrative
Agent" shall include BTCo as Administrative Agent, and as Collateral Agent).
Each Lender hereby irrevocably authorizes, and each holder of any Note or
participation in any Letter of Credit by the acceptance of a Note or
participation shall be deemed irrevocably to authorize, the Administrative Agent
to take such action on its behalf under the provisions of this Agreement and the
Notes and any other instruments and agreements referred to herein and to
exercise such powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
The Administrative Agent may perform any of their duties hereunder by or through
its agents or employees.
(b) The provisions of this Section 11 are solely for the
benefit of the Administrative Agent, and the Lenders, and neither the Borrower
nor any of the Borrower's Subsidiaries shall have any rights as a third party
beneficiary of any of the provisions hereof (other than Sections 11.09. In
performing its functions and duties under this Agreement, the Administrative
Agent and the Collateral Agent shall act solely as agents of the Lenders and do
not assume and shall not be deemed to have assumed any obligation toward or
relationship of agency or trust with or for the Borrower or any of the
Borrower's Subsidiaries.
11.02 Nature of Duties of Administrative Agent. The
Administrative Agent shall not have duties or responsibilities except those
expressly set forth in this Agreement and the other Credit Documents. Neither
the Administrative Agent, nor any of its officers, directors, employees or
agents shall be liable for any action taken or omitted by it as such hereunder
or in connection herewith, unless caused by its or their gross negligence or
willful misconduct. The duties of the Administrative Agent shall be mechanical
and administrative in nature; the Administrative Agent shall not have by reason
of this Agreement or the other Credit Documents a fiduciary relationship in
respect of any Lender; and nothing in this Agreement or the other Credit
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations in respect of this
Agreement or the other Credit Documents except as expressly set forth herein or
therein.
11.03 Lack of Reliance on Administrative Agent. (a)
Independently and without reliance upon the Administrative Agent, each Lender,
to the extent it deems appropriate, has made and shall continue to make (i) its
own independent investigation of the financial or other condition and affairs of
the Borrower and its Subsidiaries in connection with the taking or not taking of
any action in connection herewith and (ii) its own appraisal of the
creditworthiness of the Borrower and its Subsidiaries, and, except as expressly
provided in this Agreement, the Administrative Agent shall not have any duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto, whether coming into
its possession before the making of the Revolving Loans or at any time or times
thereafter.
(b) The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in connection
herewith or for the execution, effectiveness, genuineness, validity,
enforceability, collectibility, priority or sufficiency of this Agreement or the
other Credit Documents or the financial or other condition of the Borrower or
any of its Subsidiaries. The Administrative Agent shall not be required to make
any inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of this Agreement or the other Credit Documents, or the
financial condition of the Borrower or any of Borrower's Subsidiaries, or the
existence or possible existence of any Default or Event of Default, unless
specifically requested to do so in writing by any Lender.
11.04 Certain Rights of the Administrative Agent. The
Administrative Agent shall have the right to request instructions from the
Required Lenders at any time. If the Administrative Agent shall request
instructions from the Required Lenders with respect to any act or action
(including the failure to act) in connection with this Agreement or the other
Credit Documents, the Administrative Agent shall be entitled to refrain from
such act or taking such action unless and until the Administrative Agent shall
have received instructions from the Required Lenders, and the Administrative
Agent shall not incur liability to any Person by reason of so refraining.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against the Administrative Agent as a result of the Administrative
Agent acting or refraining from acting hereunder in accordance with the
instructions of the Required Lenders.
11.05 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, statement, certificate, telex, teletype
or telecopier message, cablegram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and correct
and to have been signed, sent or made by the proper person. The Administrative
Agent may consult with legal counsel (including counsel for the Borrower with
the consent of the Borrower and with respect to matters concerning the Borrower
and its Subsidiaries), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants or
experts.
11.06 Indemnification of Administrative Agent. To the extent
the Administrative Agent and its advisors are not reimbursed and indemnified by
the Borrower, each Lender will reimburse and indemnify the Administrative Agent
and its advisors in proportion to its respective outstandings credit expense,
for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including reasonable
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever (including all reasonable expenses) which may be imposed on, incurred
by or asserted against the Administrative Agent in performing its duties
hereunder, in any way relating to or arising out of this Agreement or for any
payments made by the Administrative Agent to its advisors; provided that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. The agreements contained in this Section shall survive any
termination of this Agreement and the other Credit Documents and the payment in
full of the Obligations.
11.07 The Administrative Agent in Its Individual Capacity.
With respect to its obligation to lend under this Agreement, the Loans made by
them and the Notes issued to it, and its participation in Letters of Credit
issued hereunder, the Administrative Agent shall have the same rights and powers
hereunder as any other Lender or holder of a Note or participation interests and
may exercise the same as though it was not performing the duties specified
herein; and the terms "Lenders," "Required Lenders," "holders of Revolving
Notes," or any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent may accept deposits from, lend money to, acquire equity
interests in, and generally engage in any kind of banking, trust, financial
advisory or other business with the Borrower or any Affiliate of the Borrower as
if it were not performing the duties specified herein, and may accept fees and
other consideration from the Borrower for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
11.08 Holders of Notes. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes hereof unless
and until a written notice of the assignment or transfer thereof shall have been
filed with the Administrative Agent. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any Note, shall be conclusive and binding on any
subsequent holder, transferee or assignee of such Note or of any Note or Notes
issued in exchange therefor.
11.09 Successor Administrative Agent. (a) The Administrative
Agent may, upon five Business Days' notice to the Lenders and the Borrowers,
resign at any time (effective pursuant to the following provisions of this
Section 11.09) by giving written notice thereof to the Lenders and the Borrower.
Such resignation of the Administrative Agent shall also operate as a resignation
as an Issuing Lender. Upon any such resignation, the Required Lenders shall have
the right, upon five days' notice and approval by the Borrower (which approval
shall not be unreasonably withheld or delayed), to appoint a successor
Administrative Agent (which shall also serve as a successor Issuing Lender). If
no successor Administrative Agent (i) shall have been so appointed by the
Required Lenders and (ii) shall have accepted such appointment, within thirty
days after the retiring Administrative Agent's giving of notice of resignation,
then, upon five days' notice and approval by the Borrower (which approval shall
not be unreasonably withheld or delayed), the retiring Administrative Agent, on
behalf of the Lenders, may appoint a successor Administrative Agent, which shall
also serve as a successor Issuing Lender. In the event that no successor
Administrative Agent is appointed pursuant to the foregoing provisions, the
Administrative Agent's resignation shall become effective on the date which is
forty-five days after the retiring Administrative Agent's giving of notice of
resignation, and the Required Lenders shall perform the duties of the
Administrative Agent hereunder.
(b) Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this Section 11
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
11.10 Actions with Respect to Defaults. In addition to the
Administrative Agent's right to take actions on its own accord as permitted
under this Agreement, the Administrative Agent shall take such action with
respect to an Event of Default as shall be directed by the Required Lenders;
provided that until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Event of
Default as it shall deem advisable and in the best interests of the Lenders.
11.11 Delivery of Information. The Administrative Agent shall
not be required to deliver to any Lender originals or copies of any documents,
instruments, notices, communications or other information received by the
Administrative Agent from the Borrowers, any Subsidiary, the Required Lenders,
any Lender or any other Person under or in connection with this Agreement or any
other Credit Document except (i) as specifically provided in this Agreement or
any other Credit Document and (ii) as specifically requested from time to time
in writing by any Lender with respect to a specific document, instrument, notice
or other written communication received by and in the possession of the
Administrative Agent at the time of receipt of such request and then only in
accordance with such specific request.
Section 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower shall: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White &
Case LLP and local counsel) in connection with the preparation, execution,
delivery and administration of this Agreement and the other Credit Documents and
the documents and instruments referred to herein and therein and any amendment,
waiver or consent relating hereto or thereto, of the Administrative Agent in
connection with its syndication efforts with respect to this Agreement and of
the Administrative Agent and, following and during the continuation of an Event
of Default, each of the Lenders in connection with the enforcement of this
Agreement and the other Credit Documents and the documents and instruments
referred to herein and therein (including, without limitation, the reasonable
fees and disbursements of counsel for the Administrative Agent and, following
and during the continuation of an Event of Default, for each of the Lenders)
which expenses shall include, without being limited to the cost of record
searches, the reasonable fees and expenses of attorneys and paralegals, all
reasonable costs and expenses incurred by the Administrative Agent in opening
bank accounts, depositing checks, electronically or otherwise receiving and
transferring funds, and any charges imposed on the Administrative Agent due to
insufficient funds of deposited checks and the standard fees of the
Administrative Agent relating thereto, collateral examination fees and expenses,
reasonable fees and expenses of accountants, appraisers or other consultants,
experts or advisors employed or retained by the Administrative Agent; (ii) pay
and hold each of the Lenders harmless from and against any and all present and
future stamp, excise and other similar taxes with respect to the foregoing
matters and save each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than
to the extent attributable to such Lender) to pay such taxes; (iii) pay all
reasonable fees, expenses and disbursements of any Lender or Agent and their
counsel incurred in connection with the filing and recordation of the Collateral
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; and (iv) indemnify the Administrative Agent,
and each Lender, and each of their respective officers, directors, employees,
representatives (each, an "Indemnitee") from and hold each of them harmless
against any and all liabilities, obligations (including removal or remedial
actions), losses, damages, penalties, claims, actions, judgments, suits, costs,
expenses and disbursements (including reasonable attorneys' and consultants'
fees and disbursements) (all of such liabilities, obligations, losses, damages,
penalties, claims, actions, judgments, suits, costs, expenses and disbursements
collectively, the "Indemnified Amounts") incurred by, imposed on or assessed
against any of them as a result of, or arising out of, or in any way related to,
or by reason of, (a) any investigation, litigation or other proceeding (whether
or not the Administrative Agent, or any Lender is a party thereto) related to
the entering into and/or performance of this Agreement or any other Credit
Document or the use of any Letter of Credit or the proceeds of any Loans
hereunder or the consummation of any transactions contemplated herein or in any
other Credit Document or the exercise of any of their rights or remedies
provided herein or in the other Credit Documents, or (b) the actual or alleged
presence of Hazardous Materials in the air, surface water or groundwater or on
the surface or subsurface of any Real Property owned or at any time operated by
the Borrower or any of its Subsidiaries, the generation, storage,
transportation, handling or disposal of Hazardous Materials at any location,
whether or not owned or operated by the Borrower or any of its Subsidiaries, the
non-compliance of any Real Property with foreign, federal, state, provincial and
local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to any Real Property, or any Environmental Claim asserted
against the Borrower, any of its Subsidiaries or any Real Property owned or at
any time operated by the Borrower or any of its Subsidiaries, including, in each
case, without limitation, the reasonable fees and disbursements of counsel and
other consultants incurred in connection with any such investigation, litigation
or other proceeding (but excluding any losses, liabilities, claims, damages or
expenses to the extent incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified); provided, however, that the
Borrower shall not have any obligation to any Indemnitee for any Indemnified
Amounts to the extent such Indemnified Amounts resulted from the gross
negligence or willful misconduct of such Indemnitee as determined by a court of
competent jurisdiction. To the extent that the undertaking to indemnify, pay or
hold harmless the Administrative Agent or any Lender set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, the Borrower shall make the maximum contribution to the payment and
satisfaction of each of the indemnified liabilities which is permissible under
applicable law.
12.02 Survival. All indemnities set forth herein including,
without limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.01 and 12.06 shall,
subject to Section 12.15 (to the extent applicable), survive the execution and
delivery of this Agreement and the Notes and the making and repayment of the
Loans.
12.03 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, telecopier or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered: if to the Borrower, at
the Borrower's address specified opposite its signature below; if to any Lender,
at its address specified opposite its signature below; and if to the
Administrative Agent, at its Notice Office; or, as to any Credit Party or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties hereto and, as to each Lender, at such
other address as shall be designated by such Lender in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails with first-class
postage prepaid, delivered to the telegraph company, cable company or overnight
courier, as the case may be, or sent by telex or telecopier, except that notices
and communications to the Administrative Agent or the Borrower shall not be
effective until received by the Administrative Agent or the Borrower, as the
case may be.
12.04 Benefit of Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, no Credit Party
may assign or transfer any of its rights, obligations or interest hereunder or
under any Credit Document without the prior written consent of the Lenders. Each
Lender may at any time grant participations in any of its rights hereunder or
under any of the Notes to another financial institution, including, without
limitation, investment funds, provided that in the case of any such
participation, the participant shall not have any rights under this Agreement or
any of the other Credit Documents (the participant's rights against such Lender
in respect of such participation to be those set forth in the agreement executed
by such Lender in favor of the participant relating thereto) and all amounts
payable by the Borrower hereunder shall be determined as if such Lender had not
sold such participation, except that the participant shall be entitled to the
benefits of Sections 1.10, 2.04 and 4.04 to the extent that such Lender would be
entitled to such benefits if the participation had not been entered into or
sold, and, provided further, that no Lender shall transfer, grant or assign any
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of the applicability of any
post-default increase in interest rates), or reduce the principal amount thereof
(it being understood that any amendment or modification to the financial
definitions in this Agreement shall not constitute a reduction in the rate of
interest for purposes of this clause (i)), or increase such participant's
participating interest in any Commitment over the amount thereof then in effect
(it being understood that (x) a waiver of any Default or Event of Default or of
a mandatory prepayment, shall not constitute a change in the terms of any
Commitment and (y) an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof), (ii) release all or substantially all of the
Collateral which support the Loans in which such participant is participating
(except as expressly permitted in any Credit Documents), (iii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement, (iv) reduce the percentage specified in the definition of
Required Lenders or (v) amend, modify or waive any provision of this Section
12.04.
(b) Notwithstanding the foregoing, any Lender (or any Lender
together with one or more other Lenders) may, with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed), (x) assign all or a portion of its Revolving Loan Commitments (and
related outstanding obligations hereunder) and/or its outstanding Term Loans to
(i) its parent company or individual parent and/or any Affiliate of such Lender
which is at least 50% owned by such Lender, its parent company or individual
parent or (ii) to one or more Lenders or (iii) in the case of any Lender that is
a fund that invests primarily in bank loans, any other fund that invests
primarily in bank loans and is managed or advised by the same investment advisor
of such Lender or by an Affiliate of such investment advisor or (y) assign all,
or if less than all, a portion equal to at least $5,000,000 in the aggregate for
the assigning Lender or assigning Lenders, of such Revolving Loan Commitment
(and related outstandings) and outstanding principal amount of Term Loans
hereunder to one or more Eligible Transferees, treating any fund that invests in
bank loans and any other fund that invests in bank loans and is managed or
advised by the same investment advisor of such fund or by an Affiliate of such
investment advisor as a single Eligible Transferee, each of which assignees
shall become a party to this Agreement as a Lender by execution of an Assignment
and Assumption Agreement, provided that, (i) at such time Schedule I shall be
deemed modified to reflect the Commitments (and/or outstanding Term Loans, as
the case may be) of such new Lender and of the existing Lenders, (ii) upon
surrender of the old Notes, new Notes will be issued, at the Borrower's expense,
to such new Lender and to the assigning Lender, such new Notes to be in
conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments (and/or
outstanding Term Loans, as the case may be), (iii) the Administrative Agent
shall receive at the time of each such assignment from the assigning or assignee
Lender other than an assignment to an affiliate of such Lender, the payment of a
non-refundable assignment fee of $3,500 and (iv) in connection with any
assignment described in clause (y) above, so long as no Event of Default exists
at the time of such assignment, the consent of the Borrower shall be required
(which consent shall not be unreasonably withheld or delayed) and, provided
further, that such transfer or assignment will not be effective until recorded
by the Administrative Agent on the Register pursuant to Section 12.14 hereof. To
the extent of any assignment pursuant to this Section 12.04(b), the assigning
Lender shall be relieved of its obligations hereunder with respect to its
assigned Commitments. At the time of each assignment pursuant to this Section
12.04(b) to a Person which is not already a Lender hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for federal income tax purposes, the respective assignee Lender shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable, a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Lender's Commitments and related outstanding Obligations pursuant
to Section 1.13 or this Section 12.04(b) would, at the time of such assignment,
result in increased costs under Sections 1.10, 1.11, 2.05 or 4.04 from those
being charged by the respective assigning Lender prior to such assignment, then
the Borrower shall not be obligated to pay such increased costs (although the
Borrower shall be obligated to pay any other increased costs of the type
described above resulting from changes after the date of the respective
assignment).
(c) Nothing in this Agreement shall prevent or prohibit any
Lender from pledging its rights under this Agreement and/or its Loans and/or
Notes hereunder to a Federal Reserve Bank in support of borrowings made by such
Lender from such Federal Reserve Bank and, with the consent of the
Administrative Agent, any Lender which is a fund may pledge all or any portion
of its Notes or Loans to a trustee for the benefit of investors and in support
of its obligation to such investors).
12.05 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent, any Issuing Lender or any Lender or any
holder of a Note in exercising any right, power or privilege hereunder or under
any other Credit Document and no course of dealing between any Credit Party and
the Administrative Agent, any Issuing Lender or any Lender or the holder of any
Note shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights, powers and
remedies herein or in any other Credit Document expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the
Administrative Agent, any Issuing Lender or any Lender or the holder of any Note
would otherwise have. No notice to or demand on any Credit Party in any case
shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Administrative Agent, any Issuing Lender, the Lenders or the holder of any Note
to any other or further action in any circumstances without notice or demand.
12.06 Payments Pro Rata. (a) Except as otherwise provided in
this Agreement, the Administrative Agent agrees that promptly after its receipt
of each payment from or on behalf of the Borrowers in respect of any Obligations
of the Borrower hereunder or under any Credit Document, it shall distribute such
payment to the Lenders (other than any Lender which has consented in writing to
waive its pro rata share of any such payment) pro rata based upon their
respective shares, if any, of the Obligations with respect to which such payment
was received.
(b) Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security, by
the exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings, Commitment Commission or Letter of Credit Fees,
of a sum which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such Obligation then owed and due
to such Lender bears to the total of such Obligation then owed and due to all of
the Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Credit Party to
such Lenders in such amount as shall result in a proportional participation by
all the Lenders in such amount; provided that if all or any portion of such
excess amount is thereafter recovered from such Lender, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery, but
without interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding Sections 12.06(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, different
payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.
12.07 Calculations; Computations. (a) The financial statements
to be furnished to the Administrative Agent on behalf of the Lenders pursuant
hereto shall be made and prepared in accordance with generally accepted
accounting policies and principles in the United States consistently applied
throughout the periods involved (except as set forth in the notes thereto or as
otherwise disclosed in writing by the Borrower to the Administrative Agent on
behalf of the Lenders) (with the foregoing generally accepted accounting
principles herein called "GAAP"). All calculations and computations determining
compliance with Section 8 shall utilize accounting principles and policies in
conformity with those used to prepare the financial statements referred to in
Section 6.06(a).
(b) All computations of interest, Commitment Commission and
Fees hereunder shall be made by the Administrative Agent on the basis of a year
of 360 days or 365 or 366 days, as the case may be, in the case of interest on
Base Rate Loans for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest,
Commitment Commission or Fees are payable.
(c) All interest payments to be made under this Agreement will
be paid without allowance or deduction for deemed re-investment or otherwise,
both before and after maturity and before and after default and/or judgment, if
any, until payment of the amount on which such interest is accruing, and
interest will accrue on overdue interest, if any.
12.08 Governing Law. This Agreement and the other Credit
Documents and the rights and obligations of the Borrower hereunder and
thereunder shall be construed in accordance with and be governed by the law of
the State of New York.
12.09 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument. A set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
12.10 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
12.11 Amendment or Waiver. (a) Neither this Agreement nor any
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Party thereto and the Required
Lenders; provided, however, that no such change, waiver, discharge or
termination shall, without the consent of each Lender (other than a Defaulting
Lender) with Obligations being directly affected thereby, (i) extend the final
scheduled maturity of any Loan or Note or extend the stated maturity of any
Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon (except in connection
with a waiver of applicability of any post-default increase in interest rates),
or reduce the principal amount thereof (except to the extent repaid in cash),
(ii) amend, modify or waive any provision of this Section 12.11 (it being
understood that, with the consent of the Required Lenders, additional extensions
of credit pursuant to this Agreement may be provided with similar protections to
those set forth in this Section 12.11 on substantially the same basis as the
Term Loans and Revolving Loan Commitment are included on the Effective Date),
(iii) reduce the percentage specified in the definition of Required Lenders (it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Effective Date), (iv) release all or substantially all of the Collateral from
the security interests and Liens created pursuant to the Credit Documents
(except as set forth in the Credit Documents), or (v) consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement; provided further, that no such change, waiver, discharge or
termination shall (v) increase the Commitments of any Lender over the amount
thereof then in effect without the consent of such Lender (it being understood
that waivers or modifications of conditions precedent, covenants, Defaults or
Events of Default or of a mandatory reduction in the Total Commitment, shall not
constitute an increase of the Commitment of any Lender, and that increase in the
available portion of any Commitment of any Lender shall not constitute an
increase in the Commitment of such Lender), (w) without the consent of the
Issuing Lender, amend, modify or waive any provision of Section 2 or alter its
rights or obligations with respect to Letters of Credit or without the consent
of the Swingline Lender, alter its rights or obligations in respect of Swingline
Loans, (x) without the consent of the Administrative Agent, amend, modify or
waive any provision of Section 11 as same applies to such Administrative Agent
or any other provision as same relates to the rights or obligations of such
Administrative Agent, (y) without the consent of the Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent, (z) without the consent of the Required Lenders of each
Tranche which is being allocated a lesser prepayment, repayment or commitment
reduction as a result of the actions described below (or without the consent of
the Majority Lenders of each Tranche in the case of an amendment to the
definition of Majority Lenders), amend the definition of Majority Lenders (it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Majority Lenders on substantially the same basis as the
extensions of Term Loans and Revolving Loan Commitments are included on the
Effective Date) or alter the required application of any prepayments or
repayments (or commitment reductions), as between the various Tranches, pursuant
to Section 4.01 or 4.02 (excluding Sections 4.02(A)(d), (e) and (f)) (although
(x) the Required Lenders may waive, in whole or in part, any such prepayment,
repayment or commitment reduction, so long as the relative application, as
amongst the various Tranches, of any such prepayment, repayment or commitment
reduction which is still required to be made is not altered and (y) if
additional Tranches of Term Loans are extended after the Effective Date with the
consent of the Required Lenders as required above, such Tranches may be included
on a pro rata basis (as is originally done with the Tranche A Term Loans,
Tranche B Term Loans and Tranche C Term Loans) in the various prepayments or
repayments required pursuant to Sections 4.01 and 4.02 (excluding Sections
4.02(A)(d), (e) and (f) and any section providing Scheduled Repayments for any
new Tranche of Term Loans). Notwithstanding anything to the contrary contained
herein, the modifications contemplated by Section 12.04, to the extent needed to
make new Lenders party to this Agreement, shall be permitted in accordance with
the terms thereof. All amendments effected in compliance with this Section 12.11
shall be effective and enforceable against all parties hereto.
(b) If, in connection with any proposed change, waiver,
discharge or termination to or of any of the provisions of this Agreement as
contemplated by clauses (i) through (v), inclusive, of the first proviso to
Section 12.11(a), the consent of the Required Lenders is obtained but the
consent of one or more of such other Lenders whose consent is required is not
obtained, then the Borrower shall have the right, so long as all non-consenting
Lenders whose individual consent is required are treated as described below, to
replace each such non-consenting Lender or Lenders with one or more Replacement
Lenders pursuant to Section 1.13 so long as at the time of such replacement,
each such Replacement Lender consents to the proposed change, waiver, discharge
or termination, provided that in any event the Borrower shall not have the right
to replace a Lender, terminate its Revolving Loan Commitments or repay its Loans
solely as a result of the exercise of such Lender's right pursuant to clause (i)
of Section 12.11(a) not to have its Commitment increased (and the withholding of
any required consent by such Lender).
12.12 Domicile of Loans. Each Lender may transfer and carry
its Loans at, to or for the account of any office, Subsidiary or Affiliate of
such Lender. Notwithstanding anything to the contrary contained herein, to the
extent that a transfer of Loans pursuant to this Section 12.12 would, at the
time of such transfer, result in increased costs under Section 1.10, 1.11, 2.05
or 4.04 from those being charged by the respective Lender prior to such
transfer, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes giving rise to such increased
costs after (and not reasonably expected to occur after) the date of the
respective transfer).
12.13 Confidentiality. (a) Subject to the provisions of clause
(b) of this Section 12.13, each Lender agrees that it will use its best efforts
not to disclose without the prior consent of the Borrower (other than to its
employees, auditors, advisors or counsel or to another Lender if the Lender or
such Lender's holding or parent company in its sole discretion determines that
any such party should have access to such information, provided such Persons
shall be subject to the provisions of this Section 12.13 to the same extent as
such Lender) any information with respect to the Borrower or any of its
Subsidiaries which is now or in the future furnished pursuant to this Agreement
or any other Credit Document and which is designated by the Borrower to the
Lenders in writing as confidential (collectively, the "Confidential Material"),
provided that any Lender may disclose any Confidential Material (a) as may be
required in any report, statement or testimony submitted to any municipal,
state, provincial or federal regulatory body having or claiming to have
jurisdiction over such Lender or to the Federal Reserve Board or the Federal
Deposit Insurance Corporation or similar organizations (whether in the United
States, or elsewhere) or their successors, (b) as may be required in respect to
any summons or subpoena or in connection with any litigation, (c) in order to
comply with any law, order, regulation or ruling applicable to such Lender, (d)
to the Administrative Agent or the Collateral Agent and (e) to any prospective
or actual transferee or participant in connection with any contemplated transfer
of any of the Notes or Commitments or any interest therein by such Lender,
provided that such prospective transferee or participant executes a
Confidentiality Agreement with such Lender containing provisions substantially
the same as to those contained in this Section.
(b) Each Credit Party hereby acknowledges and agrees that each
Lender may share with any of its Affiliates any Confidential Material related to
any Credit Party (including, without limitation, any nonpublic customer
information regarding the creditworthiness of the Credit Parties, provided such
Affiliate shall be subject to the provisions of this Section 12.13 to the same
extent as such Lender).
12.14 Registry. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 12.14, to maintain a register (the "Register") on which it will
record the Commitments from time to time of each of the Lenders, the Loans made
by each of the Lenders and each repayment in respect of the principal amount of
the Loans of each Lender. Failure to make any such recordation, or any error in
such recordation shall not affect the Borrower's obligations in respect of such
Loans. With respect to any Lender, the transfer of the Commitments of such
Lender and the rights to the principal of, and interest on, any Loan made
pursuant to such Commitments shall not be effective until such transfer is
recorded on the Register maintained by the Administrative Agent with respect to
ownership of such Commitments and Loans and prior to such recordation all
amounts owing to the transferor with respect to such Commitments and Loans shall
remain owing to the transferor. The registration of assignment or transfer of
all or part of any Commitments and Loans shall be recorded by the Administrative
Agent on the Register only upon the acceptance by the Administrative Agent of a
properly executed and delivered Assignment and Assumption Agreement pursuant to
Section 12.04(b). Coincident with the delivery of such an Assignment and
Assumption Agreement to the Administrative Agent for acceptance and registration
of assignment or transfer of all or part of a Loan, or as soon thereafter as
practicable, the assigning or transferor Lender shall surrender the Note
evidencing such Loan, and thereupon one or more new Notes in the same aggregate
principal amount shall be issued to the assigning or transferor Lender and/or
the new Lender. The Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 12.14.
12.15 Limitation on Additional Amounts, etc. Notwithstanding
anything to the contrary contained in Sections 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Lender gives notice to the Borrowers that they are obligated
to pay an amount under any such Section within one year after the later of (x)
the date the Lender incurs the respective increased costs, Taxes, loss, expense
or liability, reduction in amounts received or receivable or reduction in return
on capital or (y) the date such Lender has actual knowledge of its expense or
liability, reductions in amounts received or receivable or reduction in return
on capital, then such Lender shall only be entitled to be compensated for such
amount by the Borrower pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the
case may be, to the extent the costs, Taxes, loss, expense or liability,
reduction in amounts received or receivable or reduction in return on capital
are incurred or suffered on or after the date which occurs one year prior to
such Lender giving notice to the Borrowers that they are obligated to pay the
respective amounts pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the
case may be. This Section 12.15 shall have no applicability to any Section of
this Agreement other than said Sections 1.10, 1.11, 2.05 or 4.04.
12.16 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each
Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
Indebtedness at any time held or owing by such Lender (including, without
limitation, by branches and agencies of such Bank wherever located) to or for
the credit or the account of the Borrower but in any event excluding assets held
in trust for any such Person against and on account of the Obligations and
liabilities of the Borrower to such Lender under this Agreement or under any of
the other Credit Documents, including, without limitation, all interests in
Obligations purchased by such Lender pursuant to Section 12.06(b), and all other
claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not such
Lender shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
HVIDE MARINE INCORPORATED
BANKERS TRUST COMPANY
MEESPIERSON CAPITAL CORP.
- --------------------------------------------------------------------------------
COMMON STOCK REGISTRATION RIGHTS AGREEMENT
Dated as of December 15, 1999
by and among
HVIDE MARINE INCORPORATED,
and
BANKERS TRUST CORPORATION
and
GREAT AMERICAN LIFE INSURANCE COMPANY
GREAT AMERICAN INSURANCE COMPANY
NEW ENERGY CORP.
AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY
STONEWALL INSURANCE COMPANY
WORLDWIDE INSURANCE COMPANY
AMERICAN NATIONAL FIRE INSURANCE COMPANY
as Purchasers
- --------------------------------------------------------------------------------
<PAGE>
-i-
TABLE OF CONTENTS
Page
1. Definitions...............................................1
2. Registration Rights.......................................5
3. Registration Procedures..................................11
4. Holdback Agreements......................................16
5. Indemnification and Contribution.........................17
6. Miscellaneous............................................21
(a) No Conflicting Agreements...........................21
(b) Amendments and Waivers..............................22
(c) Notices.............................................22
(d) Successors and Assigns..............................23
(e) Rules 144 and 144A..................................23
(f) Counterparts........................................23
(g) Headings............................................24
(h) Governing Law.......................................24
(i) Severability........................................24
(j) Entire Agreement....................................24
<PAGE>
-30-
THIS COMMON STOCK REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of December 15, 1999, by and among
Hvide Marine Incorporated, a Delaware corporation (the "Company"), and Bankers
Trust Corporation and American Money Management Corporation (together, the
"Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated as of December 15, 1999, among the Company, the guarantors named therein
and the Purchasers (the "Purchase Agreement"), relating to the sale by the
Company to the Purchasers of $95,000,000 in aggregate principal amount at
maturity of the 12 1/2% Senior Secured Notes due 2007 of the Company (the
"Notes"), along with Warrants (the "Warrants") to purchase shares of the
Company's common stock, par value $.01 per share (the "Common Stock") in an
amount equal to 5% of the Company's fully-diluted Common Stock. In order to
induce the Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide to the Purchasers and their direct and indirect transferees
(the "Holders"), among other things, the registration rights for the Common
Stock set forth in this Agreement. The execution of this Agreement is a
condition to the obligations of the Purchasers to purchase the Notes under the
Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Affiliate" of any specified Person means any other Person
which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such
specified Person. For the 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, means 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.
"Business Day" shall mean a day that is not a Legal Holiday.
"Common Stock" shall have the meaning specified in the
preamble.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Demand Registration" shall have the meaning set forth in
Section 2.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Holder" shall mean the Purchasers, for so long as the
Purchasers own any Common Stock, and each of their successors, assigns and
direct and indirect transferees who become registered owners of Common Stock.
"Included Shares" shall have the meaning set forth in Section
2.1(a).
"indemnified party" shall have the meaning set forth in
Section 5(c).
"indemnifying party" shall have the meaning set forth in
Section 5(c).
"Independent Financial Expert" shall mean any nationally
recognized investment banking firm reasonably acceptable to the Warrant Agent
(i) that does not (and whose directors, officers, employees and Affiliates do
not) have a direct or indirect material financial interest in the Company, (ii)
that has not been, and, at the time it is called upon to serve as an Independent
Financial Expert under this Agreement is not (and none of whose directors,
officers, employees or Affiliates is) a promoter, director or officer of the
Company, (iii) that has not been retained by the Company for any purpose, other
than to perform an equity valuation, within the preceding twelve months and (iv)
that, in the reasonable judgment of senior management of the Company (such
judgment certified to in an officers' certificate), is otherwise qualified to
serve as an independent financial advisor. Any such person may receive customary
compensation and indemnification by the Company for opinions or services it
provides as an Independent Financial Expert.
"Issue Date": The date on which the original securities were
sold to the Purchasers pursuant to the Purchase Agreement.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required or authorized by
law, regulation or executive order to remain closed.
"Notes" shall have the meaning set forth in the preamble.
"Person" shall mean an individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, or other legal entity.
"Piggy-Back Registration" shall have the meaning set forth in
Section 2.2.
"Prospectus" means a prospectus that meets the requirements of
Section 10 of the Securities Act.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Purchasers" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the shares of Common Stock
issuable upon exercise of the Warrants. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such securities shall have been declared
effective under the Securities Act and such securities shall have been disposed
of pursuant to such Registration Statement, (ii) such securities can be sold
pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the Securities Act or may be sold without being subject to the volume and
manner of sale restrictions contained therein, (iii) such securities shall have
been otherwise transferred by such Holder and new certificates for such
securities not bearing a legend restricting further transfer shall have been
delivered by the Company or its transfer agent, or (iv) such securities shall
have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to
the Company's performance of or compliance with this Agreement, including,
without limitation, all SEC and stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees and expenses, fees and
expenses of compliance with state securities or blue sky laws (including,
without limitation, reasonable fees and disbursements of one counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities), printing expenses, fees and disbursements of counsel for the
Company and all independent certified public accountants (but not including any
underwriting discounts or commissions or transfer taxes, if any, attributable to
the sale of Registrable Securities by Holders of such Registrable Securities).
"Registration Statement" shall mean any registration statement
of the Company which covers any Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits and all material incorporated by reference or deemed to be
incorporated by reference in such Registration Statement.
"Requisite Holder" shall mean a Holder who at the time of
exercising such Holder's Rights under Section 2.1 hereof shall beneficially own
the Requisite Shares.
"Requisite Shares" shall mean a number of Registrable
Securities equal to not less than 20% of the Registrable Securities held in the
aggregate by all Holders.
"Restricted Security" shall have the meaning set forth in Rule
144(a)(3) under the Securities Act.
"Rule 144" shall mean Rule 144 under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not Affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"Rule 144A" shall mean Rule 144A under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Selling Holder" shall mean a Holder who is selling
Registrable Securities in accordance with the provisions of Section 2.1 or 2.2
hereof.
"Warrants" shall have the meaning set forth in the preamble.
"Withdrawal Election" shall have the meaning set forth in
Section 2.3.
2. Registration Rights.
2.1. Demand Registration.
(a) Request for Registration. At any time, Holders owning,
individually or in the aggregate, at least the Requisite Shares may make a
written request for registration under the Securities Act of their Registrable
Securities (a "Demand Registration"). Any such request will specify the number
of Registrable Securities proposed to be sold and will also specify the intended
method of disposition thereof. Upon such request, the Company will prepare, file
and use its reasonable best efforts to cause to be effective within 120 days of
such request a Registration Statement in respect of all the Registrable
Securities. The Company shall give written notice of such registration request
within 5 Business Days after the receipt thereof to all other Holders. Within 10
Business Days after receipt of such notice, any Holder may request in writing
that Registrable Securities be included in such registration and the Company
shall include in the Demand Registration the Registrable Securities of any such
Selling Holder requested to be so included (the "Included Shares"). Each such
request by such other Selling Holders shall specify the number of Included
Shares proposed to be sold and the intended method of disposition thereof.
Subject to Section 2.1(b), in no event shall the Company be required to register
Registrable Securities pursuant to this Section 2.1 on more than a maximum of
two separate occasions.
(b) Notwithstanding anything herein to the contrary, the
Company shall not be required to honor a request for a Demand Registration if
such request is received by the Company less than 180 days following the
effective date of any previous registration statement relating to such
Registrable Securities filed in connection with a Demand Registration,
regardless of whether any holder of the Registrable Securities covered thereby
exercised its rights under this Agreement with respect to such registration. In
addition, the Company may postpone taking action with respect to a Demand
Registration for a reasonable period of time after receipt of the original
request (not exceeding 45 days) if, in the good faith opinion of the Company's
Board of Directors, effecting the registration would adversely affect a material
financing, acquisition, disposition of assets or stock, merger or other
comparable transaction or would require the Company to make public disclosure of
information the public disclosure of which would have a material adverse effect
upon the Company, provided that the Company shall not delay such action pursuant
to this sentence more than once in any 12 month period.
(c) Effective Registration. A registration will not be deemed
to have been effected as a Demand Registration unless it has been declared
effective by the SEC and the Company has complied in all material respects with
its obligations under this Agreement with respect thereto; provided that if,
after it has become effective, the offering of Registrable Securities pursuant
to such registration is or becomes the subject of any stop order, injunction or
other order or requirement of the SEC or any other governmental or
administrative agency, or if any court prevents or otherwise limits the sale of
Registrable Securities pursuant to the registration (for any reason other than
the act or omission of the Selling Holders), such registration will be deemed
not to have been effected. If (i) a registration requested pursuant to this
Section 2.1 is deemed not to have been effected or (ii) the registration
requested pursuant to this Section 2.1 does not remain effective for a period of
at least 90 days beyond the effective date thereof or until the earlier
consummation of the distribution by the Selling Holders of the Included Shares,
then the Company shall continue to be obligated to effect an additional
registration pursuant to this Section 2.1. The Selling Holders of Registrable
Securities shall be permitted to withdraw all or any part of the Included Shares
from a Demand Registration at any time prior to the effective date of such
Demand Registration. If at any time a Registration Statement is filed pursuant
to a Demand Registration, and subsequently a sufficient number of Included
Shares are withdrawn from the Demand Registration so that such Registration
Statement does not cover at least the Requisite Shares, the Selling Holders who
have not withdrawn their Included Shares shall have the opportunity to include
an additional number of Registrable Securities in the Demand Registration so
that such Registration Statement covers at least the Requisite Shares. If an
additional number of Registrable Securities is not so included so that such
Registration Statement does not cover at least the Requisite Shares, the Company
may withdraw the Registration Statement. In the event that a Registration
Statement has been filed and the Company withdraws the Registration Statement
solely due to the occurrence of the events specified in the prior two sentences,
such withdrawn Registration Statement will count as a Demand Registration;
otherwise such withdrawn Registration Statement will not count as a Demand
Registration and the Company shall continue to be obligated to effect a
registration pursuant to this Section 2.1.
(d) Priority in Demand Registrations Pursuant to Section 2.1.
If a Demand Registration pursuant to this Section 2.1 involves an underwritten
offering and the managing underwriter advises the Company in writing that, in
its opinion, the number of securities requested to be included in such
registration (including securities of the Company which are not Registrable
Securities) exceeds the number that can be sold in such offering, the Company
will include in such registration only the Registrable Securities requested by
the managing underwriter(s) to be included in such registration. In the event
that the number of Registrable Securities requested to be included in such
registration exceeds the number that, in the opinion of such managing
underwriter, can be sold, the number of such Registrable Securities to be
included in such registration shall be allocated (i) first, pro rata on the
basis of the number of shares of Registrable Securities requested to be included
in such Demand Registration (provided that any shares thereby allocated to any
such Holder that exceed such Holder's request shall be reallocated among the
remaining requesting Holders in like manner) and (ii) second, pro rata on the
basis of the number of other securities of the Company proposed to be included
in such Demand Registration, allocated among the holders thereof in accordance
with the priorities then existing among the Company and the holders. In the
event that the number of Registrable Securities requested to be included in such
registration is less than the number that, in the opinion of the managing
underwriter, can be sold, the Company may include in such registration the
securities the Company proposes to sell up to the number of securities that, in
the opinion of the managing underwriter, can be sold.
(e) Selection of Underwriter. If Selling Holders representing
a majority of the Registrable Securities included in the Demand Registration so
elect, the offering of such Registrable Securities pursuant to such Demand
Registration shall be in the form of an underwritten offering. The Company shall
select one or more nationally recognized firms of investment bankers, who shall
be reasonably acceptable to the Selling Holders representing a majority of the
Registrable Securities included in the Demand Registration, to act as the
managing underwriter or underwriters in connection with such offering and shall
select any additional investment banker(s) and manager(s) to be used in
connection with the offering, subject to the reasonable approval of the Selling
Holders representing a majority of the Registrable Securities included in the
Demand Registration.
(f) Expenses. The Company will pay all Registration Expenses
in connection with the registrations requested pursuant to Section 2.1(a). Each
Holder shall pay all underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to a registration statement requested pursuant to this
Section 2.1.
2.2......Piggy-Back Registration. If at any time the Company
proposes to file a Registration Statement under the Securities Act with respect
to an offering by the Company for its own account or for the account of any of
its respective securityholders of any class of its common equity securities
(other than (i) a Registration Statement on Form S-4 or S-8 (or any substitute
form that may be adopted by the SEC) or(ii) a Registration Statement filed in
connection with an exchange offer or offering of securities solely to the
Company's existing securityholders), then the Company shall give written notice
of such proposed filing to the Holders of Registrable Securities as soon as
practicable (but in no event less than 30 days before the anticipated filing
date), and such notice shall offer such Holders the opportunity to register such
number of shares of Registrable Securities as each such Holder may request
within 20 days of the receipt by the Holder of such notice (which request shall
specify the Registrable Securities intended to be disposed of by such Selling
Holder and the intended method of distribution thereof) (a "Piggy-Back
Registration"). The Company shall use its reasonable best efforts to cause the
managing underwriter or underwriters of such proposed underwritten offering or
the holders of securities of the Company requesting such Registration Statement
to permit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Company or any other securityholder included therein and to
permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof except as otherwise
provided in Section 2.3. Any Selling Holder shall have the right to withdraw its
request for inclusion of its Registrable Securities in any Registration
Statement pursuant to this Section 2.2 by giving written notice to the Company
of its request to withdraw no later than five Business Days before such
Registration Statement becomes effective. The Company may withdraw a Piggy-Back
Registration at any time prior to the time it becomes effective; provided that
the Company shall give prompt notice thereof to participating Selling Holders.
The Company will pay all Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this Section 2.2,
and each Selling Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Selling
Holder's Registrable Securities pursuant to a registration statement effected
pursuant to this Section 2.2.
No registration effected under this Section 2.2, and no
failure to effect a registration under this Section 2.2, shall relieve the
Company of its obligation to effect a registration upon the request of Holders
pursuant to Section 2.1, and no failure to effect a registration under this
Section 2.2 and to complete the sale of shares of Common Stock, in connection
therewith shall relieve the Company of any other obligation under this
Agreement.
2.3......Reduction of Offering
(a) Piggy-Back Registration. (i) If the managing
underwriter(s) of any underwritten offering described in Section 2.2 have
informed, in writing, the Selling Holders of the Registrable Securities
requesting inclusion in such offering that it is their opinion that the total
number of shares that the Company, the Selling Holders and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, including the price
at which such securities can be sold, then the number of shares to be offered
for the account of the Selling Holders and all such other Persons (other than
the Company) participating in such registration shall be reduced or limited to
the number of shares, if any, recommended by such managing underwriters as
follows:
(A) if such registration as initially proposed by the Company
was solely a primary registration of its securities, (x) first, the
securities proposed by the Company to be sold for its own account, (y)
second any Registrable Securities requested to be included in such
registration by Selling Holders, pro rata on the basis of the number of
Registrable Securities requested to be included by such holders and (z)
third any other securities of the Company proposed to be included in
such registration, allocated among the holders thereof in accordance
with the priorities then existing among the Company and such holders;
and
(B) if such registration as initially proposed by the Company
was in whole or in part requested by holders of securities of the
Company, other than Holders of Registrable Securities in their
capacities as such, pursuant to demand registration rights, (x) first,
such securities held by the holders initiating such registration and,
if applicable, any securities proposed by the Company to be sold for
its own account, allocated in accordance with the priorities then
existing among the Company and such holders, (y) second, any
Registrable Securities requested to be included in such registration by
Requesting Holders, pro rata on the basis of the number of Registrable
Securities requested to be included by such Holders and (z) third, any
other securities of the Company proposed to be included in such
registration, allocated among the holders thereof in accordance with
the priorities then existing among the Company and the holders of such
other securities;
(ii) If the managing underwriter or underwriters of any
underwritten offering described in Section 2.2 notify the Selling Holders
requesting inclusion of Registrable Securities in such offering, that the kind
of securities that the Selling Holders, the Company and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, (x) the Registrable
Securities to be included in such offering shall be reduced as described in
clause (i) above or (y) if a reduction in the Registrable Securities pursuant to
clause (i) above would, in the judgment of the managing underwriter(s) or
underwriters, be insufficient to substantially eliminate such adverse effect
that inclusion of the Registrable Securities requested to be included would have
on such offering, such Registrable Securities will be excluded from such
offering.
(b) If, as a result of the proration provisions of this
Section 2.3, any Selling Holder shall not be entitled to include all Registrable
Securities in a Piggy-Back Registration that such Selling Holder has requested
to be included, such Selling Holder may elect to withdraw his request to include
Registrable Securities in such registration (a "Withdrawal Election"); provided,
however, that a Withdrawal Election shall be irrevocable and, after making a
Withdrawal Election, a Selling Holder shall no longer have any right to include
Registrable Securities in the registration as to which such Withdrawal Election
was made.
3........Registration Procedures. In connection with the
obligations of the Company with respect to any Registration Statement pursuant
to Sections 2.1 and 2.2 hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the Securities Act, which form (i) shall be
selected by the Company and (ii) shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith and (iii) may, at the option of the Company, be done as an
amendment to a Shelf Registration Statement in effect at the time such
Demand Registration is requested, and the Company shall use its
reasonable best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period, cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act;
(c) furnish to each Holder whose Registrable Securities are to
be included in such registration and to each underwriter of an
underwritten offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such other
documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Securities;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder thereof covered by a
Registration Statement shall reasonably request in writing by the time
the applicable Registration Statement is declared effective by the SEC,
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified, (ii) take any action that would
subject it to general service of process in any jurisdiction in which
it is not then so subject or (iii) subject itself to taxation in excess
of a nominal dollar amount in any such jurisdiction;
(e) notify each Holder whose Registrable Securities are
included in such registration promptly and, if requested by such
Holder, confirm such advice in writing (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Company, one conformed copy
of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to
be incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, the Company receives any notification with respect to the
suspension of the qualification of the Registrable Securities in any
jurisdiction, or the initiation or written threat of any proceeding for
such purpose, (iv) of the happening of any event, the existence of any
condition or any information becoming known that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
untrue in any material respects or that requires the making of any
changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
and (v) of the Company's determination that a post-effective amendment
to a Registration Statement would be appropriate;
(f) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment;
(g) furnish to each Holder whose Registrable Securities are
included in such registration and to the Purchasers, without charge, at
least one conformed copy of each Registration Statement and any
post-effective amendment thereto (with documents incorporated therein
by reference or exhibits thereto);
(h) cooperate with the Selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and registered in such names as the
Selling Holders may reasonably request at least two Business Days prior
to the closing of any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Section
3(e)(v) hereof, use its reasonable best efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
Company agrees to notify each Holder to suspend use of the Prospectus
as promptly as practicable after the occurrence of such an event, and
each Holder hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such
misstatement or omission. At such time as such public disclosure is
otherwise made or the Company determines in good faith that such
disclosure is not necessary, the Company agrees promptly to notify each
Holder of such determination, to amend or supplement the Prospectus if
necessary to correct any untrue statement or omission therein and to
furnish each Holder such numbers of copies of the Prospectus as so
amended or supplemented as each Holder may reasonably request;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document that is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of
such document to the Holders and make available for discussion of such
document the representatives of the Company as shall be reasonably
requested by the Holders of Registrable Securities;
(k) obtain a CUSIP number for the Registrable Securities;
(l) (i) make reasonably available for inspection by a
representative of, and counsel for, any managing underwriter
participating in any disposition pursuant to a Registration Statement
(collectively, "Inspectors"), all relevant financial and other records,
pertinent corporate documents and properties of the Company
(collectively, the "Records") and (ii) cause the Company's officers,
directors and employees to supply all relevant information reasonably
requested by such representative, counsel or any such managing
underwriter in connection with any such Registration Statement. Records
that the Company determines, in good faith, to be confidential and any
Records which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) the information in such Records has been made
generally available to the public other than as a result of a
disclosure or failure to safeguard by such Inspector or (iv) disclosure
of such information is, in the written opinion of counsel for any
Inspector, necessary or advisable in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, related to, or
involving this Agreement, or any transactions contemplated hereby or
arising hereunder. Each Inspector will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until
such is made generally available to the public. Each Inspector will be
required to further agree that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction pursuant
to clauses (ii) or (iv) of the previous sentence or otherwise, give
notice to the Company and allow the Company to undertake appropriate
action to obtain a protective order or otherwise prevent disclosure of
the Records deemed confidential at its expense;
(m) take all action necessary so that the Registrable
Securities will be listed on the principal securities exchanges and
markets within the United States of America (including the Nasdaq
National Market System), if any, on which other shares of Common Stock
are then listed;
(n) if requested by the Holders in connection with any
Registration Statement covering an underwritten offering, shall use its
reasonable best efforts to cause (w) counsel for the Company to deliver
an opinion relating to the Registration Statement and the Common Stock,
in customary form to the managing underwriter(s), (x) its officers to
execute and deliver all customary documents and certificates requested
by a representative of the Holders or any managing underwriter, as
applicable, and (y) its independent public accountants to provide a
comfort letter in customary form; and
(o) take all such other actions as the Holders of a majority
of the Registrable Securities being sold or the underwriters, if any,
reasonably request to expedite or facilitate the disposition of
Registrable Securities.
The Company may, as a condition to such Holder's participation
in any Registration Statement, require each Holder of Registrable Securities to
(i) furnish to the Company such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Company may from time to time reasonably request in writing, including, without
limitation, the information required by Item 507 and, if applicable, Item 508 of
Regulation S-K, and (ii) agree in writing to be bound by this Agreement. No
Holder may participate in an underwritten offering of Registrable Securities
unless such Holder (a) agrees to sell such Holder's Registrable Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
4........Holdback Agreements.
(a) The Holders of Registrable Securities by acquisition of
such Registrable Securities agree, if and to the extent requested by any
managing underwriter (or, in the case of a non-underwritten pubic offering, the
Company), to the extent permitted by law, not to effect any public sale or
distribution (including a sale under Rule 144) of such securities, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 10 days prior to and the 90 days after the effective date of any
registration statement or, if applicable, the most recently post-effective
amendment thereto, filed by the Company in connection with a primary offering of
Common Stock on behalf of the Company (or for such shorter period of time as is
sufficient and appropriate, in the opinion of any managing underwriter (or, in
the case of a non-underwritten public offering, the Company), in order to
complete the sale and distribution of the securities included in such
registration), except as part of such registration statement, whether or not
such Holder participates in such registration.
(b) The Company agrees, if and to the extent requested by any
managing underwriter, (x) not to effect any public sale or distribution of its
equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the 10 days prior to and 90 days after
the effective date of any Registration Statement or, if applicable, the most
recently post-effective amendment thereto, filed in connection with an
underwritten offering made pursuant to a Demand Registration or a Piggyback
Registration (or for such shorter period of time as is sufficient and
appropriate, in the opinion of any managing underwriter, in order to complete
the sale and distribution of the securities included in such Demand Registration
or Piggyback Registration), except as part of such underwritten registration and
except pursuant to registrations on Form S-4 or Form S-8 promulgated by the SEC
or any successor or similar forms thereto or any issuance under an employee
stock option or benefits plan, and (y) to cause each holder of its equity
securities, or of any securities convertible into or exchangeable or exercisable
for such securities to agree, to the extent permitted by law, not to effect any
such public sale or distribution of such securities (including a sale under Rule
144), during such period, except as part of such underwritten registration
unless the managing underwriter otherwise agrees.
(c) The foregoing provisions shall not apply to any holder of
securities of the Company to the extent (i) such holder is prohibited by
applicable law from agreeing to withhold from sale and (ii) such holder is
acting in its capacity as a fiduciary or an investment adviser. Without limiting
the scope of the term "fiduciary", a holder shall be deemed to be acting as a
fiduciary or an investment adviser if its actions or the shares proposed to be
sold are subject to the Employee Retirement Income Security Act, the Investment
Company Act of 1940 or the Investment Advisers Act of 1940 or if such shares are
held in a separate account under applicable insurance law or regulation.
5........Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Holder and each person, if any, who
controls such Holder within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against all losses, claims,
damages and liabilities (including, without limitation, any reasonable legal
fees or other expenses actually incurred by any Holder or any such controlling
or affiliated person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
pursuant to which Registrable Securities were registered under the Securities
Act, or caused by any omission or alleged omission to state therein a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Holder furnished or
confirmed to the Company or any underwriter engaged in connection with an
underwritten Demand Registration or Piggy-Back Registration in writing by such
Holder expressly for use in any such Registration Statement or Prospectus;
provided that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if (i) such Holder failed to
send or deliver a copy of the Prospectus (including any amendments or
supplements thereto) with or prior to the delivery of written confirmation of
the sale of Registrable Securities and (ii) the Prospectus (as amended or
supplemented) would have completely corrected such untrue statement or omission.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or any such director, officer
or controlling Person, and shall survive the transfer of such securities by such
holder. The Company shall also indemnify each other Person who participates
(including as an underwriter) in the offering or sale of Registrable Securities,
their officers and directors and each other Person, if any, who controls any
such participating Person within the meaning of the Securities Act to the same
extent as provided above with respect to holders of Registrable Securities.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, officers, employees and
agents, and each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Company to such Holder, but only
with reference to information relating to such Holder furnished to the Company
or any underwriter engaged in connection with an underwritten Demand
Registration or Piggy-Back Registration in writing by such Holder expressly for
use in any Registration Statement (or any amendment thereto), any Prospectus (or
any amendment or supplement thereto) or any preliminary prospectus. The
liability of any Holder under this paragraph (b) shall in no event exceed the
proceeds received by such Holder from sales of Registrable Securities giving
rise to such obligations. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer of such
securities by such Holder. Such Holders shall also indemnify each other Person
who participates (including as an underwriter) in the offering or sale of
Registrable Securities, their officers and directors and each other Person, if
any, who controls any such participating Person within the meaning of the
Securities Act to the same extent as provided above with respect to the Company.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such Person (the "indemnified party")
shall promptly notify the Person against whom such indemnity may be sought (the
"indemnifying party") in writing, and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and shall pay the
reasonable fees and expenses actually incurred by such counsel related to such
proceeding; provided, however, that the failure to so notify the indemnifying
party shall not relieve it of any obligation or liability that it may have
hereunder or otherwise (unless and only to the extent that such failure directly
results in the loss or compromise of any material rights or defenses by the
indemnifying person was not otherwise aware of such action or claim). In any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed in writing to the contrary, (ii) the
indemnifying party has failed within a reasonable time to retain counsel
reasonably satisfactory to the indemnified party or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that, unless there is a conflict among
indemnified parties, the indemnifying party shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all indemnified parties, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for the Holders
and such control Persons of the Holders shall be designated in writing by the
Holders who sold a majority in interest of Registrable Securities sold by all
such Holders and any such separate firm for the Company, its directors, officers
and such control Persons of the Company shall be designated in writing by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there is a final non-appealable judgment for the plaintiff, the
indemnifying party agrees to indemnify any indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees and
expenses actually incurred by counsel as contemplated by the third sentence of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its consent if (i) such settlement
is entered into more than 60 days after receipt by such indemnifying party of
the aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement; provided, however, that the indemnifying party shall not be liable
for any settlement effected without its consent pursuant to this sentence if the
indemnifying party is contesting, in good faith, the request for reimbursement.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement (A) includes an unconditional release of such indemnified party,
in form and substance satisfactory to such indemnified party, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of an indemnified party.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 5 is unavailable to an indemnified party in
respect of any losses, claims, damages or liabilities, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the Holders on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and the Holders on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and each Holder agrees that it would not be
just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred (and not otherwise reimbursed) by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 5, in no event shall a
Selling Holder be required to contribute any amount in excess of the amount by
which proceeds received by such Selling Holder from sales of Registrable
Securities exceeds the amount of damages that such Selling Holder has otherwise
been required to pay by reason of such untrue or allegedly untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
6........Miscellaneous.
(a) No Conflicting Agreements. Except for registration rights
agreements to which the Company is a party existing on the Issue Date, (i) the
Company has not entered into nor will the Company on or after the date of this
Agreement enter into any agreement which conflicts with the rights granted to
the Holders of Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof and (ii) the rights granted to the Holders hereunder
do not in any way conflict with the rights granted to the holders of the
Company's other issued and outstanding securities, if any, under any such
agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate number of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided, however, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by the Holders of a majority of the
Registrable Securities proposed to be sold.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Purchasers, the
address set forth in the Purchase Agreement, with a copy to: Cahill Gordon &
Reindel, 80 Pine Street, New York, New York 10005, Attention: William M.
Hartnett, Esq.; and (ii) if to the Company, initially at the Company's address
set forth in the Purchase Agreement and thereafter at such other address, notice
of which is given in accordance with the provisions of this Section 6(c), with a
copy to: Dyer Ellis & Joseph PC, Watergate, Eleventh Floor, 600 New Hampshire
Avenue, N.W., Suite 1100, Washington, D.C. 20037, Attention: James B. Ellis,
Esq.
All such notices and communications shall be deemed to have
been duly given: (i) at the time delivered by hand, if personally delivered,
five business days after being deposited in the mail, postage prepaid, if
mailed; (ii) when answered back, if telexed; (iii) when receipt is acknowledged,
if telecopied; and (iv) on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of this Agreement, the Purchase
Agreement, the Warrant Agreement or applicable securities laws. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such person shall be entitled to receive the benefits hereof.
(e) Rules 144 and 144A. The Company and the Guarantors
covenant that they will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the
SEC thereunder in a timely manner and in accordance with the requirements of the
Securities Act and the Exchange Act and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available annual reports and such
information, documents and other reports of the type specified in Sections 13
and 15(d) of the Exchange Act. The Company further covenants for so long as any
Registrable Securities remain outstanding, to make available to any Holder or
beneficial owner of Registrable Securities in connection with any sale thereof
and any prospective purchaser of such Registrable Securities from such Holder or
beneficial owner the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Securities
pursuant to Rule 144A.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(j) Entire Agreement. This Agreement, together with the
Purchase Agreement, the Credit Agreement and the Warrant Agreement, is intended
by the parties as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
HVIDE MARINE INCORPORATED
By: ____________________________
Name:
Title:
BANKERS TRUST CORPORATION
By: ____________________________
Name:
Title:
GREAT AMERICAN LIFE INSURANCE
COMPANY
By: ____________________________
Name:
Title:
GREAT AMERICAN INSURANCE COMPANY
By: ____________________________
Name:
Title:
NEW ENERGY CORP.
By: ____________________________
Name:
Title:
<PAGE>
AMERICAN EMPIRE SURPLUS LINES
INSURANCE COMPANY
By: ____________________________
Name:
Title:
STONEWELL INSURANCE COMPANY
By: ____________________________
Name:
Title:
WORLDWIDE INSURANCE COMPANY
By: ____________________________
Name:
Title:
AMERICAN NATIONAL FIRE INSURANCE
COMPANY
By: ____________________________
Name:
Title:
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of December 15, 1999
By and Among
HVIDE MARINE INCORPORATED
as Issuer
THE GUARANTORS
named herein
and
BANKERS TRUST CORPORATION
and
GREAT AMERICAN LIFE INSURANCE
GREAT AMERICAN INSURANCE COMPANY
NEW ENERGY CORP.
AMERICAN EMPIRE SURPLUS LINES INSURANCE COMPANY
STONEWALL INSURANCE COMPANY
WORLDWIDE INSURANCE COMPANY
AMERICAN NATIONAL FIRE INSURANCE COMPANY
as Purchasers
================================================================================
$95,000,000
Aggregate Principal Amount At Maturity
12 1/2% SENIOR SECURED NOTES DUE 2007
<PAGE>
-i-
TABLE OF CONTENTS
Page
1. Definitions.......................................................1
2. Exchange Offer....................................................5
3. Shelf Registration................................................9
4. Additional Interest...............................................9
5. Registration Procedures..........................................12
6. Registration Expenses............................................23
7. Indemnification..................................................24
8. Rule 144 and 144A................................................29
9. Underwritten Registrations.......................................29
10. Miscellaneous....................................................30
(a) No Inconsistent Agreements..................................30
(b) Adjustments Affecting Registrable Securities................30
(c) Amendments and Waivers......................................30
(d) Notices30
(e) Successors and Assigns......................................32
(f) Counterparts................................................32
(g) Headings....................................................32
(h) Governing Law...............................................33
(i) Severability................................................33
(j) Securities Held by the Issuer or its Affiliates.............33
(k) Third Party Beneficiaries...................................33
(l) Entire Agreement............................................33
<PAGE>
-27-
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated
as of December 15, 1999 by and among Hvide Marine Incorporated, a Delaware
corporation (the "Company"), the Guarantors named on the signature pages hereto
(the "Guarantors" and, together with the Company, the "Issuers") and Bankers
Trust Corporation and Great American Life Insurance Company, Great American
Insurance Company, New Energy Corp., American Empire Surplus Lines Insurance
Company, Stonewall Insurance Company, Worldwide Insurance Company and American
National Fire Insurance Company (the "Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of December 15, 1999, by and among the Company, the
Guarantors and the Purchasers (the "Purchase Agreement") that provides for the
sale by the Company to the Purchasers of $95,000,000 aggregate principal amount
at maturity of the Company's 12 1/2% Senior Secured Notes due 2007 (the
"Notes"). The Notes will be guaranteed (the "Guarantees") on a senior basis by
the Guarantors. The Notes and the Guarantees together are herein referred to as
the "Securities". In order to induce the Purchasers to enter into the Purchase
Agreement, the Issuers have agreed to provide the registration rights set forth
in this Agreement for the benefit of the Purchasers and their direct and
indirect transferees and assigns. The execution and delivery of this Agreement
is a condition to the Purchasers' obligation to purchase the Securities under
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the first introductory paragraph hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Any day except a Saturday, a Sunday or any day
on which banking institutions in New York, New York are required or authorized
by law or other governmental action to be closed.
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Company: See the first introductory paragraph hereto.
Effectiveness Date: The date that is 210 days after the Issue
Date.
Effectiveness Period: See Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a) hereof.
Exchange Registration Statement: See Section 2(a) hereof.
Exchange Securities: See Section 2(a) hereof.
Filing Date: Within 120 days after the Issue Date.
Holder: The Purchasers, for so long as the Purchasers own any
Registrable Security or Registrable Securities, and each of their successors,
assigns and direct and indirect transferees who become beneficial owners of any
Registrable Security or Registrable Securities.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of December 15, 1999 by and
among the Company, the Guarantors and State Street Bank and Trust Company, as
trustee, pursuant to which the Securities are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
Inspectors: See Section 5(n) hereof.
Interest Payment Date: As defined in the Indenture.
Issue Date: The date on which the original Securities were
sold to the Purchasers pursuant to the Purchase Agreement.
Issuers: See the introductory paragraph hereto.
NASD: See Section 5(s) hereof.
Notes: See the second introductory paragraph hereto.
Participant: See Section 5(s) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph
hereto.
Purchasers: See the first introductory paragraph hereto.
Record Date: As defined in the Indenture.
Records: See Section 5(o) hereof.
Registrable Securities: Each Security upon original issuance
of the Securities and at all times subsequent thereto, until in the case of any
such Security or Exchange Security, as the case may be, the earliest to occur of
(i) a Registration Statement covering such Security or Exchange Security, as the
case may be, has been declared effective by the SEC and such Security or
Exchange Security, as the case may be, has been disposed of in accordance with
such effective Registration Statement, (ii) such Security or Exchange Security,
as the case may be, is sold in compliance with Rule 144 or may be sold without
volume or manner of sale restrictions under Rule 144, (iii) such Security has
been exchanged for an Exchange Security or Exchange Securities pursuant to an
Exchange Offer and is entitled to be resold without complying with the
prospectus delivery requirements of the Securities Act and (iv) such Security or
Exchange Security, as the case may be, ceases to be outstanding for purposes of
the Indenture.
Registration Default: See Section 4(a) hereof.
Registration Statement: Any registration statement of the
Company, including, but not limited to, the Exchange Registration Statement and
any registration statement filed in connection with a Shelf Registration, filed
with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: See the second introductory paragraph hereto.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(a) hereof.
Shelf Registration Effectiveness Date: The date that is 90
days after the date on which the Company becomes obligated to file such Shelf
Registration unless the Issuers have not consummated the Exchange Offer within
240 days of the Issue Date, in which case the Shelf Registration Effectiveness
Date shall be the 241st day after the Issue Date.
Shelf Registration Filing Date: The date that is the later of
120 days after the Issue Date and 60 days after the date on which the Company
becomes obligated to file such Shelf Registration.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Securities.
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Exchange Offer
(a) The Company and the Guarantors shall file with the SEC no later than the
Filing Date an offer to exchange (the "Exchange Offer") any and all of the
Registrable Securities for a like aggregate principal amount of debt securities
of the Company that are identical in all material respects to the Securities
(the "Exchange Securities") (and that are entitled to the benefits of the
Indenture or a trust indenture that is identical in all material respects to the
Indenture (other than such changes to the Indenture or any such identical trust
indenture as are necessary to comply with any requirements of the SEC to effect
or maintain the qualification thereof under the TIA) and that, in either case,
has been qualified under the TIA), except that the Exchange Securities shall
have been registered pursuant to an effective Registration Statement under the
Securities Act and shall contain no restrictive legend thereon. The Exchange
Offer shall be registered under the Securities Act on the appropriate form (the
"Exchange Registration Statement") and shall comply with all applicable rules
and regulations under the Exchange Act. The Company and the Guarantors agree to
use their respective reasonable best efforts to (x) cause the Exchange
Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Date; (y) keep the Exchange Offer open for at least 20
Business Days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders; and (z) consummate the
Exchange Offer on or prior to the 240th day following the Issue Date. If after
such Exchange Registration Statement is declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Securities thereunder is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Exchange Registration
Statement shall be deemed not to have become effective for purposes of this
Agreement. Each Holder who participates in the Exchange Offer will be required
to represent in writing that any Exchange Securities received by it will be
acquired in the ordinary course of its business, that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Securities in violation of the provisions of the Securities Act and that such
Holder is not an affiliate of the Company or the Guarantors within the meaning
of the Securities Act and is not acting on behalf of any persons or entities who
could not truthfully make the foregoing representations. Upon consummation of
the Exchange Offer in accordance with this Section 2, the provisions of this
Agreement shall continue to apply, mutatis mutandis, solely with respect to
Registrable Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
Registrable Securities pursuant to Section 3 hereof. No securities other than
the Exchange Securities shall be included in the Exchange Registration
Statement.
(b) The Company and the Guarantors shall include within the Prospectus contained
in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Purchasers, that shall contain a
summary statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any broker-dealer that
is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or policies, in
the judgment of the Purchasers, represent the prevailing views of the Staff of
the SEC. Such "Plan of Distribution" section shall also expressly permit the use
of the Prospectus by all Persons subject to the prospectus delivery requirements
of the Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Securities.
The Company and the Guarantors shall use their respective
reasonable best efforts to keep the Exchange Registration Statement effective
and to amend and supplement the Prospectus contained therein in order to permit
such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as is necessary to comply with applicable law in connection with any resale of
the Exchange Securities (the "Applicable Period").
Interest on the Exchange Securities will accrue from the last
interest payment date on which interest was paid on the Securities surrendered
in exchange therefor or, if no interest has been paid on the Securities, from
the Issue Date.
In connection with the Exchange Offer, the Company and the
Guarantors shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Registration Statement, together with an appropriate letter of
transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an
address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Securities at any time prior to the
close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open by sending to the institution
specified in the letter of transmittal and related documents, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Securities delivered for
exchange and a statement that such Holder is withdrawing its election
to have such Securities exchanged; and
(4) otherwise comply in all material respects with all applicable laws, rules
and regulations.
As soon as practicable after the close of the Exchange Offer,
the Company and the Guarantors shall:
(1) accept for exchange all Securities properly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(2) deliver to the Trustee for cancellation all Securities so accepted for
exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder
Securities or Exchange Securities, as the case may be, equal in principal
amount to the Securities of such Holder so accepted for exchange.
The Exchange Securities may be issued under (i) the Indenture
or (ii) an indenture identical in all material respects to the Indenture, which
in either event shall provide that the Exchange Securities shall not be subject
to the transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Securities and the Securities shall
vote and consent together on all matters as one class and that neither the
Exchange Securities nor the Securities will have the right to vote or consent as
a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Issuers reasonably determine after
conferring with counsel that they are not permitted to effect an Exchange Offer,
(ii) the Exchange Offer is not consummated within 210 days of the Issue Date or
(iii) in the case of any Holder that participates in the Exchange Offer, such
Holder does not receive Exchange Securities on the date of the exchange that may
be sold without restriction under state and federal securities laws (other than
due solely to the status of such Holder as an affiliate of the Company or any of
the Guarantors within the meaning of the Securities Act), then the Company shall
promptly deliver written notice thereof (the "Shelf Notice") to the Trustee and
in the case of clauses (i) and (ii), all Holders and, in the case of clause
(iii), the affected Holder, and shall file a Shelf Registration pursuant to
Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) Shelf Registration. The Company and the Guarantors shall file with the SEC
no later than the Shelf Registration Filing Date a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Registrable Securities (the "Shelf Registration"). The Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of such
Registrable Securities for resale by Holders in the manner or manners designated
by them (including, without limitation, one or more underwritten offerings).
The Company and the Guarantors shall use their respective
reasonable best efforts to cause the Shelf Registration to be declared effective
under the Securities Act on or prior to the Shelf Registration Effectiveness
Date and to keep the Shelf Registration continuously effective under the
Securities Act until the date that is two years from the Issue Date (the
"Effectiveness Period"), or such shorter period ending when all Registrable
Securities covered by the Shelf Registration have been sold in the manner set
forth and as contemplated in the Shelf Registration.
(b) Withdrawal of Stop Orders. If the Shelf Registration ceases to be effective
for any reason at any time during the Effectiveness Period (other than because
of the sale of all of the securities registered thereunder), the Company and the
Guarantors shall use their respective reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof.
(c) Supplements and Amendments. The Company and the Guarantors shall promptly
supplement and amend the Shelf Registration, if required by the Securities Act.
4. Additional Interest
(a) The Company, the Guarantors and the Purchasers agree that the Holders of
Registrable Securities will suffer damages if the Company and the Guarantors
fail to fulfill their respective obligations under Section 2 or Section 3 hereof
and that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Company and the Guarantors agree to pay, as
liquidated damages, additional interest on the Securities ("Additional
Interest") under the circumstances and to the extent set forth below (without
duplication):
(i) if the Exchange Registration Statement has not been filed on or prior to
the Filing Date or the Shelf Registration has not been filed on or prior to
the Shelf Registration Filing Date, Additional Interest shall accrue on the
Securities over and above the stated interest at a rate of 0.50% per annum
for the first 90 days immediately following the Filing Date or the Shelf
Registration Filing Date, as the case may be, such Additional Interest rate
increasing by an additional 0.50% per annum at the beginning of each
subsequent 90-day period;
(ii) if the Exchange Registration Statement is not declared effective by the SEC
on or prior to the Effectiveness Date or if the Shelf Registration is not
declared effective by the SEC on or prior to the Shelf Registration
Effectiveness Date, Additional Interest shall accrue on the Securities
included or that should have been included in such Registration Statement
over and above the stated interest at a rate of 0.50% per annum for the
first 90 days immediately following the Effectiveness Date or the Shelf
Registration Effectiveness Date, as the case may be, such Additional
Interest rate increasing by an additional 0.50% per annum at the beginning
of each subsequent 90-day period; or
(iii)if either (A) the Company and the Guarantors have not exchanged Exchange
Securities for all Securities validly tendered in accordance with the terms
of the Exchange Offer on or prior to the 240th day after the Issue Date or
(B) the Exchange Registration Statement ceases to be effective at any time
prior to the time that the Exchange Offer is consummated or (C) if
applicable, the Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period without being succeeded within five Business Days by a
post-effective amendment that is itself declared effective, or an effective
shelf registration statement covering the same Securities, then Additional
Interest shall be accrued on the Securities(over and above any interest
otherwise payable on the Securities) at a rate of 0.50% per annum on (x)
the 240th day after the Issue Date, in the case of (A) above, or (y) the
day the Exchange Registration Statement ceases to be effective without
being declared effective within five Business Days in the case of (B)
above, or (z) the day such Shelf Registration ceases to be effective, in
the case of (C) above, such Additional Interest rate increasing by an
additional 0.50% per annum at the beginning of each such subsequent 90-day
period (each such event referred to in clauses (i) through (iii), a
"Registration Default") (it being understood and agreed that,
notwithstanding any provision to the contrary, so long as any Security that
is the subject of a Shelf Notice is then covered by an effective Shelf
Registration, no Additional Interest shall accrue on such Security);
provided, however, that the Additional Interest rate on any affected Security
may not exceed at any one time in the aggregate 2.0% per annum; provided,
further, that the Company and the Guarantors shall in no event be required to
pay Additional Interest for more than one Registration Default at any given
time; and provided, further, that (1) upon the filing of the Exchange
Registration Statement or a Shelf Registration (in the case of clause (i) of
this Section 4(a)), (2) upon the effectiveness of the Exchange Registration
Statement or the Shelf Registration (in the case of clause (ii) of this Section
4(a)), or (3) upon the exchange of Exchange Securities for all Securities
tendered (in the case of clause (iii)(A) of this Section 4(a)), or upon the
effectiveness of the Exchange Registration Statement that had ceased to remain
effective (in the case of (iii)(B) of this Section 4(a)) or upon the
effectiveness of the Shelf Registration that had ceased to remain effective (in
the case of (iii)(C) of this Section 4(a)), Additional Interest on the affected
Securities as a result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue. Notwithstanding the foregoing, no Holder
of Registrable Securities shall be entitled to receive Additional Interest with
respect to such Registrable Securities if such Holder was, at any time while the
Exchange Offer was pending, eligible to exchange, and did not validly tender,
such Registrable Securities for Exchange Securities.
(b) The Company and the Guarantors shall notify the Trustee within one Business
Day after each and every Registration Default. Any amounts of Additional
Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash quarterly on each Interest Payment Date (to the Holders on the
Corresponding Record Dates), commencing with the first such date occurring after
any such Additional Interest commences to accrue. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the relevant Registrable Securities, multiplied
by a fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the basis of a
360-day year consisting of twelve 30-day months and, in the case of a partial
month, the actual number of days elapsed) and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company and the Guarantors shall effect
such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Company and the Guarantors hereunder, the Company and the Guarantors shall:
(a) Prepare and file with the SEC prior to the Filing Date or Shelf
Registration Filing Date, as the case may be, a Registration Statement or
Registration Statements as prescribed by Sections 2 or 3 hereof, and use
their reasonable best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided,
however, that, if (1) such filing is pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company and the
Guarantors shall furnish to and afford the Holders of the Registrable
Securities covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least three Business Days prior to such filing). The Company and
the Guarantors shall not file any Registration Statement or Prospectus or
any amendments or supplements thereto if the Holders of a majority in
aggregate principal amount of the Registrable Securities covered by such
Registration Statement, or any such Participating Broker-Dealer, as the
case may be, or their counsel, or the managing underwriters, if any, shall
reasonably object within two Business Days of receiving such documents.
(b) Prepare and file with the SEC such amendments and post-effective amendments
to each Shelf Registration or Exchange Registration Statement, as the case
may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented
by any prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) promulgated under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented and with
respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Company and
the Guarantors shall be deemed not to have used their respective reasonable
best efforts to keep a Registration Statement effective during the
Applicable Period if each of the Company and the Guarantors voluntarily
takes any action that would result in selling Holders of the Registrable
Securities covered thereby or Participating Broker-Dealers seeking to sell
Exchange Securities not being able to sell such Registrable Securities or
such Exchange Securities during that period, unless such action is required
by applicable law or unless the Company and the Guarantors comply with this
Agreement, including without limitation, the provisions of paragraph 5(k)
hereof and the last paragraph of this Section 5. Notwithstanding the
foregoing, but without limiting the Issuers' obligations under Section 4
hereof, the Issuers may postpone taking any action with respect to a
supplement or amendment with respect to a Registration Statement or
Prospectus contained therein for a reasonable period of time after the
occurrence of any fact or event contemplated by Section 5(c)(v) or Section
5(c)(vi) (not exceeding 45 days) if, in the good faith opinion of the Board
of Directors of the Issuers, the supplement or amendment would adversely
affect a material financing, acquisition or disposition of assets or stock,
merger or other comparable transaction or would require the Issuer's to
make public disclosure of information the public disclosure of which would
have a material adverse effect upon the Issuers; provided that the Issuers
shall not delay such action pursuant to the foregoing more than once in any
12 month period.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, notify the selling Holders of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be,
their counsel and the managing underwriters, if any, promptly (but in any
event within two Business Days) and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuers, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance
by the SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) of the receipt by the Issuers of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
written threat of any proceeding for such purpose, (iv) of the happening of
any event, the existence of any condition or any information becoming known
that makes any statement made in such Registration Statement or related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires the
making of any changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (v) of the Issuers' determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use their respective reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities or the Exchange Securities for sale in any jurisdiction and, if
any such order is issued, to use their reasonable best efforts to obtain
the withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if requested by
the managing underwriter or underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Securities being
sold in connection with an underwritten offering, (i) promptly incorporate
in a prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters, if any, such Holders or counsel
for any of them determine is reasonably necessary to be included therein
and (ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Issuers have
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, furnish to each selling Holder of Registrable
Securities and to each such Participating Broker-Dealer who so requests and
to their respective counsel and each managing underwriter, if any, at the
sole expense of the Issuers, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment
thereto, including financial statements and schedules and, if requested,
all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, deliver to each selling Holder of Registrable
Securities, or each such Participating Broker-Dealer, as the case may be,
their respective counsel and the underwriters, if any, at the sole expense
of the Issuers, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons
may reasonably request; and, subject to the last paragraph of this Section
5, the Issuers hereby consent to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Securities or each such Participating Broker-Dealer, as the
case may be, and the underwriters or agents, if any, and dealers, if any,
in connection with the offering and sale of the Registrable Securities
covered by, or the sale by Participating Broker-Dealers of the Exchange
Securities pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Securities or Exchange
Securities or any delivery of a Prospectus contained in the Exchange
Registration Statement by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, to use their reasonable
best efforts to register or qualify and to cooperate with the selling
Holders of Registrable Securities or each such Participating Broker-Dealer,
as the case may be, the managing underwriter or underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer or the managing underwriter or
underwriters reasonably request in writing; provided, however, that where
Exchange Securities held by Participating Broker-Dealers or Registrable
Securities are offered other than through an underwritten offering, the
Issuers agree to cause their counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to this
Section 5(h); use their reasonable best efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Exchange Securities
held by Participating Broker-Dealers or the Registrable Securities covered
by the applicable Registration Statement; provided, however, that none of
the Company or the Guarantors shall be required to (A) qualify generally to
do business in any jurisdiction where it is not then so qualified, (B) take
any action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof, cooperate
with the selling Holders of Registrable Securities and the managing
underwriter or underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall not bear any restrictive legends and shall
be in a form eligible for deposit with The Depository Trust Company; and
enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
any, or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable Securities covered
by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the Holders thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Company and the Guarantors will cooperate in
all reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, upon the occurrence of any event contemplated
by Sections 5(c)(iv) or 5(c)(v), hereof, as promptly as practicable prepare
and (subject to Sections 5(a) and 5(b) hereof) file with the SEC, at the
Issuers' sole expense, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder or to the
purchasers of the Exchange Securities to whom such Prospectus will be
delivered by a Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(l) Use their respective reasonable best efforts to cause the Registrable
Securities covered by a Registration Statement or the Exchange Securities,
as the case may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Securities covered by such Registration Statement or the
Exchange Securities, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration Statement relating to
the Registrable Securities, (i) provide the Trustee with certificates for
the Registrable Securities or Exchange Securities, as the case may be, in a
form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Registrable Securities or Exchange
Securities, as the case may be.
(n) In connection with any underwritten offering of Registrable Securities
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Securities and take all such other actions as are reasonably requested by
the managing underwriter or underwriters in order to expedite or facilitate
the registration or the disposition of such Registrable Securities and, in
such connection, (i) make such representations and warranties to, and
covenants with, the underwriters with respect to the business of the
Issuers and their subsidiaries (including any acquired business, properties
or entity, if applicable) and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters
in underwritten offerings of debt securities similar to the Securities, and
confirm the same in writing if and when requested; (ii) obtain the written
opinion of counsel to the Issuers and written updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of debt
similar to the Securities and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) obtain "cold
comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters from
the independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Issuers or of any business acquired by the Issuers for
which financial statements and financial data are, or are required to be,
included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of debt securities
similar to the Securities and such other matters as reasonably requested by
the managing underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section
7 hereof (or such other provisions and procedures acceptable to Holders of
a majority in aggregate principal amount of Registrable Securities covered
by such Registration Statement and the managing underwriter or underwriters
or agents) with respect to all parties to be indemnified pursuant to said
Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in an Exchange Registration Statement filed pursuant
to Section 2 hereof is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, upon reasonable advance notice make available
for inspection by any selling Holder of such Registrable Securities being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent retained by
any such selling Holder or each such Participating Broker-Dealer, as the
case may be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours without
interfering in the orderly business of the Company or Guarantors, all
financial records, pertinent corporate documents and instruments of the
Issuers and their subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the respective officers, directors
and employees of the Issuers and their subsidiaries to supply all
information reasonably requested by any such Inspector in connection with
such Registration Statement. Records that the Issuers determine, in good
faith, to be confidential and any Records that they notify the Inspectors
are confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the release
of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction (after giving prior notice to the Company
and providing the Company an opportunity to seek a protective order), (iii)
after giving reasonable prior notice to the Company, disclosure of such
information is, in the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector
and arising out of, based upon, relating to or involving this Agreement or
any transactions contemplated hereby or arising hereunder or (iv) the
information in such Records has been made generally available to the public
other than as a result of a disclosure or failure to safeguard such
information by any Inspector. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to
agree that information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Issuers unless and until such
information is generally available to the public. Each selling Holder of
such Registrable Securities and each such Participating Broker-Dealer will
be required to further agree that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to
the Issuers and allow the Issuers to undertake appropriate action to
prevent disclosure of the Records deemed confidential at the Issuers' sole
expense.
(p) Provide an indenture trustee for the Registrable Securities or the Exchange
Securities, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the Exchange
Offer or the first Registration Statement relating to the Registrable
Securities; and in connection therewith, cooperate with the trustee under
any such indenture and the Holders of the Registrable Securities, to effect
such changes to such indenture as may be required for such indenture to be
so qualified in accordance with the terms of the TIA; and execute, and use
their reasonable best efforts to cause such trustee to execute, all
documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable such indenture to be
so qualified in a timely manner.
(q) Comply in all material respects with all applicable rules and regulations
of the SEC and make generally available to its securityholders earning
statements satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder or any similar rule promulgated under the
Securities Act.
(r) Upon consummation of an Exchange Offer, obtain an opinion of counsel to the
Issuers, who may, at the Issuers' election, be internal counsel to the
Issuers, in a form customary for underwritten transactions, addressed to
the Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer, that the Exchange Securities, and the
related indenture constitute legal, valid and binding obligations of the
Issuers, enforceable against the Issuers in accordance with their
respective terms, subject to customary exceptions and qualifications.
(s) If an Exchange Offer is to be consummated, upon delivery of the Registrable
Securities by Holders to the Company (or to such other Person as directed
by the Company) in exchange for the Exchange Securities, the Company shall
mark, or cause to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the Exchange; in
no event shall such Registrable Securities be marked as paid or otherwise
satisfied.
(t) Cooperate with each seller of Registrable Securities covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD"); provided, that none
of the Issuers shall take any position during review by the NASD that
would, in any manner, create the implication that the offering of the
Securities on the Closing Date should be or is subject to the rules and
regulations of the NASD.
(u) Use their respective reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
The Company and the Guarantors may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company and the Guarantors such information regarding such seller and the
distribution of such Registrable Securities as the Company and the Guarantors
may, from time to time, reasonably request. The Company and the Guarantors may
exclude from such registration the Registrable Securities of any seller who
fails to furnish such information within 15 days after receiving such request
and in such event shall have no further obligation under this Agreement
(including, without limitation, obligations under Section 4 hereof) with respect
to such seller or any subsequent holder of such Registrable Securities. Each
seller as to which any Shelf Registration is being effected agrees to furnish
promptly to the Company and the Guarantors all information required to be
disclosed in order to make the information previously furnished to the Company
and the Guarantors by such seller not materially misleading.
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
that, upon actual receipt of any notice from the Company of the happening of any
event of the kind described in Sections 5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus or Exchange
Securities to be sold by such Holder or Participating Broker-Dealer, as the case
may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event that the Company shall give any
such notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or (y) the Advice; provided, however, that
the Effectiveness Period shall not be extended for a period longer than two
years from the Issue Date.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance with this
Agreement by the Company and the Guarantors shall be borne by the Company and
the Guarantors whether or not the Exchange Registration Statement or a Shelf
Registration is filed or becomes effective, including, without limitation, (i)
all registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Securities or Exchange Securities and determination of the
eligibility of the Registrable Securities or Exchange Securities for investment
under the laws of such jurisdictions (x) where the holders of Registrable
Securities are located, in the case of the Exchange Securities, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Securities or
Exchange Securities to be sold by a Participating Broker-Dealer during the
Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Securities or Exchange
Securities in a form eligible for deposit with The Depository Trust Company and
of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in any
Registration Statement or sold by any Participating Broker-Dealer, as the case
may be, (iii) fees and disbursements of counsel for the Company and reasonable
fees and disbursements of special counsel for the sellers of Registrable
Securities(subject to the provisions of Section 6(b) hereof), (iv) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (v) rating agency fees, if any, and any fees associated with
making the Registrable Securities or Exchange Securities eligible for trading
through The Depository Trust Company, (vi) reasonable fees and expenses of all
other Persons retained by the Company, (vii) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (viii) the
expense of any annual audit, listing of the securities to be registered on any
securities exchange, if applicable, and (ix) the expenses relating to printing,
word processing and distributing of all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary to comply with this Agreement.
(b) The Company and the Guarantors shall (i) reimburse the Holders of the
Registrable Securities being registered in a Shelf Registration for the
reasonable fees and disbursements of not more than one counsel chosen by the
Holders of a majority in aggregate principal amount of the Registrable
Securities to be included in such Registration Statement and (ii) reimburse
reasonable out-of-pocket expenses (other than legal expenses) of Holders of
Registrable Securities incurred in connection with the registration and sale of
the Registrable Securities pursuant to a Shelf Registration or in connection
with the exchange of Registrable Securities pursuant to the Exchange Offer.
Notwithstanding the foregoing or anything in this Agreement to the contrary,
each Holder of Registrable Securities being registered shall pay all
commissions, placement agent fees and underwriting discounts and commissions
with respect to any Registrable Securities or Exchange Securities sold by it.
7. Indemnification
(a) Each of the Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless each Holder of Registrable Securities and each
Participating Broker-Dealer selling Exchange Securities during the Applicable
Period, the officers and directors of each such Person, and each other Person,
if any, who controls any such Person within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act (each, a "Participant"),
from and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement pursuant to which the offering of such Registrable Securities or
Exchange Securities, as the case may be, is registered (or any amendment
thereto) or related Prospectus (or any amendments or supplements thereto) or any
related preliminary prospectus, or caused by, arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that none of the Company or the Guarantors will be required to indemnify a
Participant if (i) such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Participant
furnished or confirmed to the Company in writing by or on behalf of such
Participant expressly for use therein or (ii) if such Participant sold to the
Person asserting the claim the Registrable Securities or Exchange Securities
that are the subject of such claim and such untrue statement or omission or
alleged untrue statement or omission was contained or made in any preliminary
prospectus and corrected in the Prospectus or any amendment or supplement
thereto and it is established by the Company in the related proceeding that such
Participant failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the sale of
such Registrable Securities or Exchange Securities sold to such Person if
required by applicable law, unless such failure to deliver or provide a copy of
the Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify and hold
harmless the Company and each of the Guarantors, the Company's directors and
officers, each Guarantor's directors and officers and each Person who controls
the Company and the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company and the Guarantors to each Participant, but
only (i) with reference to information relating to such Participant furnished or
confirmed to the Company in writing by or on behalf of such Participant
expressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto or any preliminary prospectus or (ii) with respect to any
untrue statement or representation made by such Participant in writing to the
Company. The liability of any Participant under this paragraph shall in no event
exceed the proceeds received by such Participant from sales of Registrable
Securities or Exchange Securities giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability that it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that, unless there exists a conflict among Indemnified Persons, the
Indemnifying Person shall not, in connection with any one such proceeding or
separate but substantially similar related proceeding in the same jurisdiction
arising out of the same general allegations, be liable for the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
promptly as they are incurred. Any such separate firm for the Participants and
such control Persons of Participants shall be designated in writing by
Participants who sold a majority in interest of Registrable Securities and
Exchange Securities sold by all such Participants and any such separate firm for
the Company, the Guarantors and their respective directors and officers and such
control Persons of the Company and the Guarantors as shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its prior written consent, but if
settled with such consent or if there be a final non-appealable judgment for the
plaintiff for which the Indemnified Person is entitled to indemnification
pursuant to this Agreement, the Indemnifying Person agrees to indemnify and hold
harmless each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an Indemnifying Person
to reimburse the Indemnified Person for reasonable fees and expenses actually
incurred by counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of such
settlement; provided, however, that the Indemnifying Person shall not be liable
for any settlement effected without its consent pursuant to this sentence if the
Indemnifying Person is contesting, in good faith, the request for reimbursement.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of any
Indemnified Person.
(d) If the indemnification provided for in the first and second paragraphs of
this Section 7 is for any reason unavailable to, or insufficient to hold
harmless, an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers on the one hand or such Participant or such other
Indemnified Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances.
(e) The parties agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
Participants were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any reasonable legal or
other expenses actually incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall a Participant be required to
contribute any amount in excess of the amount by which proceeds received by such
Participant from sales of Registrable Securities or Exchange Securities, as the
case may be, exceeds the amount of any damages that such Participant has
otherwise been required to pay or has paid by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this Section 7 will
be in addition to any liability that the Indemnifying Persons may otherwise have
to the Indemnified Persons referred to above.
8. Rule 144 and 144A
The Company and the Guarantors covenant that they will file
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder in a timely
manner in accordance with the requirements of the Securities Act and the
Exchange Act. The Company and the Guarantors further covenant, if at any time
the Company and the Guarantors are not required to file such reports, for so
long as any Registrable Securities remain outstanding, to make available upon
request to any Holder or beneficial owner of Registrable Securities in
connection with any sale thereof and any prospective purchaser of such
Registrable Securities from such Holder or beneficial owner the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Registrable Securities pursuant to Rule 144A.
9. Underwritten Registrations
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Company and the Guarantors and reasonably acceptable to the
Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. Except for registration rights agreements to
which the Company is a party existing on the Issue Date, the Issuers have not
entered into, as of the date hereof, and shall not, after the date of this
Agreement, enter into any agreement with respect to any of the Company's
securities that is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The Issuers have not entered and will not enter into any
agreement with respect to any of the Company's securities (including the
Warrants) that will grant to any Person piggy-back registration rights with
respect to any Registration Statement filed pursuant to this Agreement.
(b) Adjustments Affecting Registrable Securities. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, otherwise than with the prior written
consent of the Holders of not less than a majority in aggregate principal amount
of the then outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Registrable Securities may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Securities being sold
by such Holders pursuant to such Registration Statement; provided, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including without limitation
any notices or other communications to the Trustee) provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Securities or any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Purchasers as follows:
BANKERS TRUST CORPORATION
130 Liberty Street
New York, New York 10006
Facsimile No.: (212) 250-7200
Attention: Corporate Finance Department
AMERICAN MONEY MANAGEMENT CORPORATION
One East Fourth Street
Cincinnati, OH 45202
Facsimile No.: (513) 579-2580
Attention: Rodger Miller
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
Attention: William M. Hartnett, Esq.
2. if to the Purchasers, at the addresses specified in Section 10(d)(1)
3. if to the Issuers, at the address as follows:
HVIDE MARINE INCORPORATED
2200 Eller Drive
P.O. Box 13038
Port Everglades Station
Fort Lauderdale, FL 33316
Facsimile No.: (954) 527-1772
Attention: Robert B. Lamm
with copies to:
Kronish Lieb Weiner & Hellman LLP
1114 Avenue of the Americas
New York, NY 10036
Facsimile No.: (212) 479-6275
Attention: Robert J. Feinstein, Esq.
and
Dyer Ellis & Joseph
Watergate, Eleventh Floor
600 New Hampshire Ave., N.W.
Washington, D.C. 20034
Attention: James B. Ellis, Esq.
Fax Number: 202-944-3068
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Issuers or their Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Issuers or their
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Securities and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase Agreement and
the Indenture, is intended by the parties as a final and exclusive statement of
the agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Purchasers on the one
hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
HVIDE MARINE INCORPORATED
By:
Name:
Title:
<PAGE>
GUARANTORS
HMI OPERATORS, INC.
HVIDE MARINE INTERNATIONAL, INC.
HVIDE MARINE TOWING, INC.
HVIDE MARINE TOWING SERVICES, INC.
HVIDE MARINE TRANSPORT, INCORPORATED
LONE STAR MARINE SERVICES, INC.
OFFSHORE MARINE MANAGEMENT INTERNATIONAL, INC.
SEABULK ALBANY, INC.
SEABULK ALKATAR, INC.
SEABULK ARABIAN, INC.
SEABULK ARCTIC EXPRESS, INC.
SEABULK ARIES II, INC.
SEABULK ARZANAH, INC.
SEABULK BARRACUDA, INC.
SEABULK BATON ROUGE, INC.
SEABULK BECKY, INC.
SEABULK BETSY, INC.
SEABULK BUL HANIN, INC.
SEABULK CAPRICORN, INC.
SEABULK CARDINAL, INC.
SEABULK CAROL, INC.
SEABULK CAROLYN, INC.
SEABULK CHAMP, INC.
SEABULK CHRISTOPHER, INC.
SEABULK CLAIBORNE, 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, INC.
SEABULK EAGLE II, INC.
SEABULK EMERALD, INC.
SEABULK ENERGY, INC.
SEABULK EXPLORER, INC.
SEABULK FALCON, INC.
SEABULK FALCON II, 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 HAWAII, INC.
SEABULK HAWK, INC.
SEABULK HERCULES, INC.
SEABULK HERON, INC.
SEABULK HORIZON, INC.
SEABULK HOUBARE, INC.
SEABULK IBEX, INC.
SEABULK ISABEL, INC.
SEABULK JASPER, INC.
SEABULK JEBEL ALI, INC.
SEABULK KATIE, INC.
SEABULK KESTREL, INC.
SEABULK KING, INC.
SEABULK KNIGHT, INC.
SEABULK LAKE EXPRESS, INC.
SEABULK LARA, INC.
SEABULK LARK, INC.
SEABULK LIBERTY, INC.
SEABULK LINCOLN, 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 NEPTUNE, INC.
SEABULK OCEAN SYSTEMS
CORPORATION
SEABULK OCEAN SYSTEMS HOLDINGS
CORPORATION
SEABULK OFFSHORE, LTD.
By its general partner Seabulk Tankers, Ltd.
By its general partner Hvide Marine Transport,
Incorporated
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 OFFSHORE OPERATORS
TRINIDAD LIMITED
SEABULK OREGON, 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 SABINE, 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 SUHAIL, INC.
SEABULK SWAN, INC.
SEABULK SWIFT, INC.
SEABULK TANKERS, LTD.
By its general partner
Hvide Marine Transport,
Incorporated SEABULK
TAURUS, INC.
SEABULK TENDER, INC.
SEABULK TIMS I, INC.
SEABULK TITAN, INC.
SEABULK TOOTA, INC.
SEABULK TOUCAN, INC.
SEABULK TRADER, INC.
SEABULK TRANSMARINE II, INC.
SEABULK TREASURE ISLAND, INC.
SEABULK UMM SHAIF, INC.
SEABULK VERITAS, INC.
SEABULK VIRGO I, INC.
SEABULK VOYAGER, INC.
SEABULK ZAKUM, INC.,
each as a Guarantor
By:
Name: John H. Blankley
Title: Executive Vice President,
Chief Financial Officer and Treasurer
HMI CAYMAN HOLDINGS, INC.
SEABULK OFFSHORE OPERATORS
NIGERIA LIMITED
SEABULK OFFSHORE U.K. LIMITED
SEABULK RED TERN LIMITED,
each as a Guarantor
By:
Name: John H. Blankley
Title: Director
HVIDE MARINE DE VENEZUELA, S.R.L., as a Guarantor
By:
Name: John H. Blankley
Title: Executive Vice President
and Chief Financial Officer
LIGHTSHIP LIMITED PARTNER
HOLDINGS, LLC, as a Guarantor
By:
Name: John H. Blankley
Title: Vice President and Treasurer
SEAMARK LTD., INC.
SUN STATE MARINE SERVICES, INC.
OCEAN SPECIALTY TANKERS CORPORATION,
each as a Guarantor
By:
Name: John H. Blankley
Title: Attorney-in-Fact
<PAGE>
BANKERS TRUST CORPORATION
By:
Name:
Title:
AMERICAN MONEY MANAGEMENT CORPORATION
By:
Name:
Title:
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
- -------------------------------------------------------x
:
In re : Chapter 11
:
HVIDE MARINE INCORPORATED, : Case No. 99-3024 (PJW)
et al., : Jointly Administered
:
Debtor. :
:
- -------------------------------------------------------x
ORDER CONFIRMING FIRST AMENDED JOINT PLAN OF REORGANIZATION
PROPOSED BY THE DEBTORS, DATED AS OF NOVEMBER 1, 1999
The First Amended Joint Plan of Reorganization Proposed by
Debtors Hvide Marine Incorporated ("HMI") and its subsidiary and affiliate
debtors (a list of which is annexed hereto as Exhibit "A") (collectively, the
"Debtors" or the "Proponents"), dated as of November 1, 1999 (which, together
with all modifications thereto on or before the date hereof are herein referred
to as the "Plan"), a copy of which is annexed hereto as Exhibit B,1 having been
proposed and filed with this Court by the Debtors; and the First Amended
Disclosure Statement Pursuant to Section 1125 of the Bankruptcy Code for the
First Amended Joint Plan of Reorganization Proposed by the Debtors, dated as of
November 1, 1999 (the "Disclosure Statement"), having been approved by the Court
and transmitted to the Debtors' creditors and equity security holders in
accordance with the Order of the Court dated November 2, 1999 approving the
Disclosure Statement under Section 1125 of the Bankruptcy Code and establishing
- --------
1 Unless otherwise defined herein, capitalized terms used herein shall have the
meanings ascribed to them in the Plan.
1
<PAGE>
solicitation and tabulation procedures and providing for other relief (the
"Solicitation Order"); and a hearing having been held before the Court
commencing on December 1, 1999 to consider confirmation of the Plan (the
"Confirmation Hearing"); and due notice of the Confirmation Hearing and the time
for filing objections to confirmation of the Plan having been given to all
parties in interest in accordance with the Solicitation Order and other
applicable Orders of this Court; and the Court having found that the form and
scope of the notice of the Confirmation Hearing were appropriate under the
circumstances, that all parties in interest had an opportunity to appear and be
heard at the Confirmation Hearing, and that the procedures by which Ballots for
acceptance or rejection of the Plan were distributed and tabulated were fair and
were properly conducted in accordance with the Solicitation Order and other
applicable Orders of this Court, and that as set forth in the Certification of
Voting filed by Bankruptcy Services, LLC, the Debtors' tabulation agent,
sufficient ballots have been cast to obtain confirmation of the Plan; and the
Court having considered all of the objections to the confirmation of the Plan;
and after due consideration and deliberation, IT IS HEREBY ORDERED, DETERMINED,
ADJUDGED, FOUND AND DECREED that:
1. All findings of fact herein shall be construed as conclusions of law
and all conclusions of law shall be construed as findings of fact where
appropriate.
JURISDICTION
2. This Court has jurisdiction to approve and confirm the Plan pursuant
to 28 U.S.C. ss. 1334.
3. The Confirmation of the Plan is a core proceeding pursuant to 28
U.S.C.
2
<PAGE>
MODIFICATION OF THE PLAN
4. The Proponents have modified the Plan as set forth on Exhibit C
hereto which modifications are incorporated into and made part of the Plan. The
modifications of the Plan do not adversely change the treatment of the Claim of
any creditor or the Interest of any Interest holder and otherwise comply with
Section 1127 of the Bankruptcy Code. All acceptances and rejections previously
cast for or against the Plan are hereby deemed to constitute acceptances or
rejections of the Plan as modified.
THE PLAN MEETS THE CONFIRMATION
REQUIREMENTS OF SECTION 1129
5. Section 1129(a)(1). The Plan complies with the applicable provisions
of the Bankruptcy Code.
6. Section 1129(a)(2). The Proponents of the Plan have complied with
the applicable provisions of the Bankruptcy Code, including the disclosure and
solicitation requirements of Section 1125 of the Bankruptcy Code. Except as
disclosed on the record at the Confirmation Hearing with respect to holders of
Trust Preferred Claims, based upon the record before the Court at the
Confirmation Hearing, the Disclosure Statement, the Plan, the Ballots, the
Notice of Confirmation Hearing, the Solicitation Order, and the Plan Supplement
were transmitted and served in compliance with the Solicitation Order and the
Bankruptcy Rules,2 and
- --------
2 Capitalized terms not defined herein shall have the meanings ascribed to them
in the Plan or Disclosure Statement.
3
<PAGE>
such transmittal and service (including the transmittal and service made to the
holders of Trust Preferred Claims) was adequate and sufficient. Adequate and
sufficient notice of the Confirmation Hearing and other bar dates and deadlines
set forth in the Solicitation Order was given in compliance with the Bankruptcy
Rules and the Solicitation Order, and no further notice is required. The
solicitation of votes was made in good faith and in compliance with applicable
law.
7. Based on the Disclosure Statement, the Debtors' public dissemination
of reports on its recent financial results, and the record of the Confirmation
Hearing, the Debtors believe that all known material information concerning
Debtors and their financial condition, as required under Section 1125 of the
Bankruptcy Code or otherwise, has been disclosed, and the Debtors believe there
is no known material non-public information relating to the Debtors and their
financial condition that has not been disclosed.
8. Section 1129(a)(3). The Plan has been proposed in good faith and not
by any means forbidden by law.
9. Section 1129(a)(4). All payments made or to be made by the Debtors,
or by a person issuing securities or acquiring property under the Plan, for
services or for costs and expenses in or in connection with the Chapter 11
Cases, or in connection with the Plan and incident to the Chapter 11 Cases, have
been approved, have been fully disclosed to the Court and are reasonable or, if
to be fixed after confirmation of the Plan, will be subject to approval of the
Court.
10. Section 1129(a)(5). The identity, qualifications and affiliations
of the persons who are to be directors and officers of the Debtors after
confirmation of the Plan have been
4
<PAGE>
disclosed on the record at the Confirmation Hearing, and the appointment or
continuance of such persons in such offices is consistent with the interests of
creditors and equity security holders of the Debtors and with public policy. The
identity of any insider that will be employed or retained by the Reorganized
Debtors and the nature of such insider's compensation have been fully disclosed.
11. Section 1129(a)(6). No governmental regulatory commission has
jurisdiction, after confirmation of the Plan, over the rates of the Debtors.
12. Section 1129(a)(7). With respect to each impaired Class of Claims
or Interests, each holder of a Claim or Equity Interest of such Class has
accepted the Plan or will receive or retain under the Plan property of a value,
as of the Effective Date, that is not less than the amount that such holder
would receive or retain if the Debtors were liquidated under chapter 7 of the
Bankruptcy Code on such date.
13. Section 1129(a)(8).
(a) Classes 1, 2, 3A, 3D and 5 of the Plan are not impaired by the
Plan.
(b) Classes 3B and 3C of the Plan are impaired and as reflected in the
Certification of Voting have voted to accept the Plan, as follows:
(i) the holders of 100% in number and 100% in dollar amount of Class 3B
creditors who voted, have accepted the Plan;
(ii) the holders of approximately 97.67% in number and 99.96% in dollar
amount of Class 3C creditors who voted, have accepted the Plan;
(c) There are no creditors who fall within Class 4 of the Plan.
(d) Class 6 did not vote in sufficient numbers to accept the Plan. As
reflected in
5
<PAGE>
the Certification of Voting, 52% of the shares in Class 6 which were voted,
voted to accept the Plan. There are no holders of HMI Common Stock Trading
Claims. The HMI Common Stock Trading Claim asserted by Christopher W. Payne is
patently deficient under Bankruptcy Rule 7009 and the Solicitation Order and is
hereby disallowed. (e) Class 7 will not receive or retain any property on
account of their Interests and, accordingly, are deemed to have rejected the
Plan.
14. Section 1129(a)(9). Except to the extent that the holder of a Claim
of a kind specified in Section 507(a) of the Bankruptcy Code has agreed to a
different treatment of such Claim, the Plan provides that:
(a) with respect to a Claim of a kind specified in Section
507(a)(1), (2), (3), (4), (5) or (6) of the Bankruptcy Code, on the
Effective Date, the holder of such Claim will receive on account of
such Claim Cash equal to the Allowed Amount of such Claim; and
(b) with respect to a Claim of a kind specified in Section
507(a)(7) of the Bankruptcy Code, the holder of such Claim will, at the
option of the Debtors, either be paid in full in Cash on the Effective
Date, or receive on account of such Claim deferred Cash payments, over
a period not exceeding six years after the date of assessment of such
Claim, of a value, on the Effective Date or as soon thereafter as is
practicable, equal to the Allowed Amount of such Claim, with interest
at the rate of 5% per annum or as otherwise established by the
Bankruptcy Court. 15. Section 1129(a)(10). At least one Class of Claims
that is impaired under the Plan
6
<PAGE>
has accepted the Plan, determined without including any acceptance of the Plan
by any insider.
16. Section 1129(a)(11). Based on the evidence adduced at the
Confirmation Hearing, confirmation of the Plan is not likely to be followed by
the liquidation, or the need for further financial reorganization, of the
Debtors.
17. Section 1129(a)(12). All fees payable under Section 1930 of title
28 of the United States Code have been paid or the Plan provides that they will
be paid as Administrative Expenses under the Plan.
18. Section 1129(a)(13). The Plan provides for the continuation after
the Effective Date of all "retiree benefits" of the Debtors, as defined by
Section 1114(a) of the Bankruptcy Code, for the duration of the period the
Debtors have obligated themselves to provide such benefits.
19. Section 1129(b). With respect to Classes 6 and 7 of the Plan, the
Plan does not discriminate unfairly and is fair and equitable within the meaning
of Section 1129(b) of the Bankruptcy Code.
20. No Tax Avoidance. The principal purpose of the Plan is not the
avoidance of taxes or the avoidance of the application of section 5 of the
Securities Act of 1933 (15 U.S.C. ss. 77e), and no governmental unit has
requested that this Court not confirm the Plan for this reason. Accordingly, the
Plan satisfies the requirements of section 1129(d) of the Bankruptcy Code.
Pursuant to Section 1129 of the Bankruptcy Code, the Plan be, and it hereby is,
confirmed.
21. Objections Overruled. Each of the objections to confirmation of the
Plan that has not been withdrawn, waived or settled prior to the date hereof,
and all reservations of rights included therein, are overruled with prejudice.
To the extent that pleadings filed by individuals
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<PAGE>
or entities are not denominated as objections but contain objections to
confirmation of the Plan and have not been withdrawn, waived or settled prior to
the date hereof, such pleadings are overruled with prejudice.
IMPLEMENTATION OF THE PLAN
22. Satisfaction of Conditions. Each of the conditions to the
effectiveness of the Plan has been or is expected promptly to be satisfied.
23. Authorization. The Debtors, the Reorganized Debtors, their
officers, and all parties in interest be, and they hereby are, authorized,
empowered and directed to issue, execute, deliver, file or record any agreement,
document or security, and take any action necessary or appropriate, to
implement, effectuate and consummate the Plan in accordance with its terms,
including, without limitation, any agreement, release, certificate or articles
of merger, the agreements annexed or referred to in the Plan and/or the
Disclosure Statement and the issuance of New HMI Stock and Warrants, without
further application to or order of this Court.
24. All actions authorized to be taken pursuant to the Plan, including,
without limitation the merger of HMI into Reorganized HMI, shall be effective as
of the Effective Date pursuant to this Order without any further action by the
stockholders or directors of the Debtors, the Debtors in Possession or the
Reorganized Debtors.
25. The Debtors, the Reorganized Debtors and their officers be, and
hereby are, authorized to execute and file any and all documents, including
without limitation certificates and articles of merger, necessary or appropriate
to effectuate or evidence any or all corporate actions authorized to be taken
pursuant to the Plan or the Disclosure Statement, and any or all
8
<PAGE>
such documents shall be accepted by each of the respective State filing offices
and recorded in accordance with applicable State law and shall become effective
in accordance with their terms and the provisions of State law as of the
Effective Date.
26. This Order shall constitute all approvals and consents required, if
any, by the laws, rules or regulations of any State or any other governmental
authority with respect to the implementation or consummation of the Plan, and
any other documents, instruments or agreements, and any amendments or
modifications thereto, and any other acts referred to in or contemplated by the
Plan, the Disclosure Statement and any other documents, instruments or
agreements, and any amendments or modifications thereto.
27. Reincorporation. Section 8.4 of the Plan provides that upon the
Effective Date, HMI will be reincorporated as Reorganized HMI under the laws of
the State of Delaware. In order to effectuate such reincorporation, the Plan is
deemed amended to provide for the issuance on the Effective Date of all the
outstanding common stock of HMI, a Florida corporation, to Reorganized HMI, a
Delaware corporation. Reorganized HMI is the "successor" to HMI, as that term is
used in section 1145 of the Bankruptcy Code, for the purpose of, among other
things, the issuance of securities to holders of Claims and Interests.
28. New Certificate and By-Laws. The New Certificate of Incorporation
and ByLaws of Reorganized HMI (Exhibits C and D, respectively, to the Plan)
shall be adopted in substantially the forms contained in Tabs 3 and 4,
respectively, of the Plan Supplement. The New Certificate of Incorporation,
among other things, prohibits the issuance of non-voting equity securities and
provides, as to the classes of securities possessing voting power, an
appropriate distribution of such power among such classes.
9
<PAGE>
29. Distributions. No payment or distribution provided for in the Plan
shall be made prior to the Effective Date. All distributions of Cash, New HMI
Common Stock, Warrants and/or other consideration required to be made by the
Debtors pursuant to the Plan shall be made within the time provided by the Plan
and, in the case of distributions of Cash, shall be timely and proper if mailed
by first class mail on or before the distribution dates set forth in the Plan to
the last known addresses of the persons entitled thereto.
30. Unclaimed Distributions. Any security, money or other property or
distributions pursuant to the Plan that are unclaimed for a period of five years
after distribution thereof shall be forfeited and revested in and become the
property of the Reorganized Debtors. Any distribution made on behalf of a holder
of a Class 3B Senior Note Claim to the indenture trustee for the Senior Notes
pursuant to the Plan that is unclaimed by the holder of a Senior Note for a
period of five years after the distribution thereof shall be forfeited and
returned to and revested in Reorganized HMI. Any distribution made on behalf of
a holder of a Class 3C Trust Preferred Claim to the Property Trustee pursuant to
the Plan that is unclaimed by the holder of a Trust Preferred Claim for a period
of five years after the distribution thereof shall be forfeited and returned to
and revested in Reorganized HMI.
31. Discharge. As of the Effective Date, except as otherwise provided
herein and in the Plan, in accordance with Section 1141(d) of the Bankruptcy
Code, the Debtors are discharged of and from any and all debts and Claims that
arose before the date of entry of this Order, including, without limitation, any
Securities Trading Claim and any debt or Claim of a kind specified in Sections
502(g), 502(h) or 502(i) of the Bankruptcy Code, whether or not (a) a proof of
Claim based on such a debt is filed or deemed filed under Section 501 of the
Bankruptcy
10
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Code, (b) such Claim is allowed under Section 502 of the Bankruptcy Code, or (c)
the holder of such Claim has accepted the Plan.
32. Federal Claims and Interests. Notwithstanding any provision in the
Plan, Confirmation Order or any bar date order to the contrary, there will be no
bar date with respect to claims of the United States, and all rights and claims
of the United States shall not be discharged, impaired or otherwise adversely
affected by the Plan, this Confirmation Order or the bankruptcy cases, will
survive the bankruptcy cases as if the cases had not been commenced, and shall
be determined in the manner and by the administrative or judicial tribunal in
which such rights or claims would have been resolved or adjudicated if the
bankruptcy cases had not been commenced. All Claims of the United States shall
remain subject to all legal and equitable defenses of the Debtors or the
Reorganized Debtors.
33. Revesting of Property. As of the Effective Date, except as
otherwise provided in the Plan, in accordance with Sections 1141(b) and 1141(c)
of the Bankruptcy Code, all property of the Debtors' estates and all other
property dealt with in the Plan be, and it hereby is, vested in the Debtors and
is free and clear of all debts, Claims and interests of creditors and holders of
Interests of the Debtors.
34. Judgments Null and Void. Except as provided in the Plan and subject
only to the occurrence of the Effective Date, any judgment at any time obtained,
to the extent that such judgment is a determination of personal liability of the
Debtors with respect to any debt or Claim discharged hereunder be, and it hereby
is, rendered null and void.
35. Automatic Stay. Unless otherwise provided herein, all injunctions
or stays provided for in the Chapter 11 Case pursuant to Sections 105 or 362 of
the Bankruptcy Code or
11
<PAGE>
otherwise extant on the date of entry of this Order shall remain in full force
and effect until the Effective Date of the Plan. Unless otherwise provided
herein and except for the Order Partially Granting Plaintiff's Motion for a
Preliminary Injunction, dated November 24, 1999 entered in Adversary Proceeding
No. 99-574, the stay in effect pursuant to Section 362(a) of the Bankruptcy Code
and any stay entered in the Chapter 11 Cases by this Court under Section 105 of
the Bankruptcy Code be, and they hereby are, dissolved and of no force or effect
after the Effective Date of the Plan.
36. Discharge Injunction. Except as otherwise provided in the Plan or
this Order (including any right to receive distributions under the Plan), as of
the Effective Date, all entities that have held, currently hold or may hold a
Claim or other debt or liability that is discharged or an Interest or other
right of an equity security holder that is terminated pursuant to the terms of
the Plan (including Securities Trading Claims), are permanently enjoined,
stayed, barred and restrained from taking any of the following actions against
any of the Debtors, the Reorganized Debtors, the Creditors' Committee and the
members thereof, or any of their respective property, officers, directors,
agents, attorneys, advisors, employees and representatives on account of any
such discharged Claims, debts or liabilities or terminated interests or rights:
(i) commencing or continuing in any manner any action or other proceeding; (ii)
enforcing, attaching, collecting, or recovering in any manner any judgment,
award, decree or order; (iii) creating, perfecting or enforcing any lien or
encumbrance; and (iv) asserting or effectuating any right of setoff, subrogation
or recoupment of any kind.
37. Executory Contracts. Subject only to the occurrence of the
Effective Date, pursuant to Article VII of the Plan and Sections 365 and
1123(b)(2) of the Bankruptcy Code, and
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<PAGE>
without further motion to or order of the Bankruptcy Court, (i) the assumption
of all executory contracts and unexpired leases other than those (a) which have
been rejected pursuant to a prior Order of this Court, (b) which are set forth
in Schedule 7.1(a) to the Plan, or (c) as to which a motion for approval of the
rejection thereof has been filed and served on or prior to the Effective Date,
be, and the same hereby is, approved; (ii) the rejection of all executory
contracts set forth in Schedule 7.1(a) to the Plan be, and the same hereby is,
approved; and (iii) all Claims arising from contracts and leases assumed prior
to or as a result of the Effective Date are hereby disallowed. Proof of any
Claim for breach of an executory contract or unexpired lease rejected pursuant
to Section 7.1(a) of the Plan be, and it hereby is, required to be served and
filed with the Court no later than thirty days after notice of entry of this
Order, or it shall then be barred and discharged.
38. Securities Exemption. By operation of Section 1145 of the
Bankruptcy Code, the distribution of New HMI Common Stock (including, but not
limited to, that issuable on exercise of the Warrants and that distributable to
creditors in Class 3C and Interest holders in Class 6 under the Plan) and the
Warrants to be issued and distributed under the Plan, shall be exempt from
registration under Section 5 of the Securities Act of 1933, as amended, and any
State or local law requiring registration for offer or sale of a security or
registration or licensing of an issuer of, or broker or dealer in, a security.
All such securities so issued shall be freely transferable by the initial
recipients thereof, except for any securities received by an underwriter within
the meaning of Section 1145(b) of the Bankruptcy Code.
39. Stock Option Plan. The Plan and the Disclosure Statement constitute
a solicitation to the holders of New HMI Common Stock for the approval of the
New Stock Option
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<PAGE>
Plan, a copy of which is contained in Tab 6 of the Plan Supplement, and the
acceptance of the New Stock Option Plan by the holders of New HMI Common Stock
is hereby confirmed. Entry of this Order constitutes evidence of stockholder
approval of the New Stock Option Plan, for purposes of compliance with Rule
16b-3 issued under Securities Exchange Act of 1934, as amended.
40. Warrant Agreement and Registration Rights Agreement. The Warrant
Agreement and the Registration Rights Agreement (Exhibits A and B to the Plan),
respectively, be, and they hereby are, approved and the Warrant Agreement and
Registration Rights Agreement, when executed and delivered in substantially the
forms as they appear in Tabs 1 and 2 of the Plan Supplement will constitute, the
legal, valid and binding obligations of Reorganized HMI enforceable against
Reorganized HMI in accordance with their respective terms. Pursuant to Section
1123(a)(5) of the Bankruptcy Code, HMI and Reorganized HMI and their officers
be, and they hereby are, authorized to consummate the transactions contemplated
by the Warrant Agreement and the Registration Rights Agreement in accordance
with their terms without further approval or action by either the directors or
stockholders of HMI or Reorganized HMI, which approval has been, and shall be
deemed to have been, given for all purposes.
41. Transfer Tax Exemption. Pursuant to Section 1146 of the Bankruptcy
Code, the issuance, transfer or exchange of notes or equity securities under the
Plan, the creation of any mortgage, deed or trust or other security interest,
the making or assignment of any lease or sublease, or the making or delivery of
any deed or other instrument of transfer under, in furtherance of, or in
connection with the Plan, and any of the other transactions contemplated under
the Plan be, and they hereby are, exempt from any stamp or similar tax.
14
<PAGE>
MISCELLANEOUS
42. Revesting of Causes of Action. Pursuant to Section 9.1.4 of the
Plan, on the Effective Date, all rights or causes of action belonging or
accruing to the Debtors and Debtors in Possession, including without limitation
those accruing or arising under chapter 5 of the Bankruptcy Code, shall remain
assets of the estates of the respective Reorganized Debtors. To the extent
necessary, the Reorganized Debtors shall be, and hereby are, deemed to be
representatives of the estate under section 1123(b) of the Bankruptcy Code. The
Reorganized Debtors, as the successors to the Debtors, may prosecute, settle, or
release any of the foregoing actions or assert any of the foregoing as a defense
or counterclaim to any Claim or action, including without limitation, any rights
under section 502(d) of the Bankruptcy Code.
43. Exculpation. None of the Debtors, the Reorganized Debtors, the
Creditors' Committee, each of the Trustees or any of their respective members,
officers, directors, employees, attorneys, advisors or agents shall have or
incur any liability to any holder of a Claim or Interest for any act or omission
in connection with, or arising out of, the pursuit of confirmation of the Plan,
the conduct of the business or affairs of the Debtors as debtors in possession,
the consummation of the Plan or the administration of the Plan or the property
to be distributed under the Plan except for willful misconduct or gross
negligence, and, in all respects, the Debtors, the Reorganized Debtors, the
Creditors' Committee, each of the Trustees and each of their respective members,
officers, directors, employees, advisors and agents shall be entitled to rely
upon the advice of counsel with respect to their duties and responsibilities
under the Plan and retain the benefit, if any, of any immunity available to
Committee members.
15
<PAGE>
44. Releases. Upon the Effective Date, any and all claims held by the
Debtors against any present or former officers or directors shall be forever
waived, released and discharged, and will not be retained or enforced by the
Reorganized Debtors; provided, however, that no claims of the Debtors shall be
released as against any officer or director of any of the Debtors who asserts
any Claim that could have been asserted prior to the Effective Date against the
Debtors or the Reorganized Debtors. Upon the Effective Date, any and all claims
and causes of action, whether direct or derivative, against any present or
former officer or director of the Debtors by any holder of a Claim or Interest
under the Plan shall be forever waived, released and discharged, and not
retained or enforced by such holder.
45. Indemnity. Reorganized HMI is authorized and directed to (and
hereby does) indemnify and hold harmless each of the members of the Creditors'
Committee, and their respective members, officers, directors, partners,
employees, attorneys, agents, and advisors and each of their respective
successors and assigns from and against any and all claims, suits, actions,
liabilities, and judgments and costs related thereto (including any defense
costs associated therewith on an "as incurred" basis) arising under or with
respect to any act or omission in connection with, or arising out of, (i) the
negotiation, documentation or implementation of the transactions contemplated
herein (including the consideration of alternatives thereto (if any)), (ii) the
pursuit of confirmation of the Plan, (iii) the consummation of the Plan or (iv)
the administration of the Plan or property to be distributed under the Plan,
except if such claim or liability is determined by a court of competent
jurisdiction to have arisen as a direct result of such entity's gross negligence
or willful misconduct.
46. Retention of Jurisdiction. Until the entry of a Final Decree in
these Chapter 11
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<PAGE>
Cases, this Court shall retain jurisdiction over the Reorganized Debtors and
these Chapter 11 Cases for all purposes including those listed in Article XI of
the Plan and to enforce compliance with any orders of the type referred to in
Section 1142 of the Bankruptcy Code.
47. Appeals. The reversal or modification of this Order on appeal shall
not affect the validity of the Plan or any other agreement or action authorized
by this Order as to any entity acting in good faith, whether or not that entity
knows of the appeal, unless this Order is stayed pending appeal.
48. Order is Controlling. In the event of any conflict or inconsistency
between the terms of (a) the Plan, (b) the Disclosure Statement, (c) the Plan
Supplement, and (d) this Order, the terms of this Order shall control; provided,
however, that if the terms of the Plan and this Order (i) do not expressly
resolve the issue under consideration or (ii) are ambiguous with regard to such
issue, the Reorganized Debtors or other parties-in-interest, on such notice as
may be appropriate, may seek such relief from this Court as may be necessary and
appropriate under the circumstances.
49. Separate Confirmation Order for Each Debtor. This Order is and
shall be deemed to be a separate Order with respect to each of the Debtors
identified on Exhibit A for all purposes.
50. Plan Provisions to be Given Effect. The failure to specifically
include or reference any particular provision of the Plan in this Order shall
not diminish or impair the effectiveness of such provision; it being the intent
of the Court that the Plan be confirmed in its entirety.
51. Plan and Confirmation Order Binding. Pursuant to section 1141 of
the
17
<PAGE>
Bankruptcy Code, as of the Effective Date, and except as expressly provided in
the Plan or this Order, the provisions of the Plan and this Order shall be
binding upon (i) each of the Debtors, (ii) each of the Reorganized Debtors,
(iii) all holders of Claims against or Interests in any of the Debtors, whether
or not impaired under the Plan and, if impaired, whether or not such holders
accepted the Plan, (iv) any person or entity acquiring property under the Plan,
(v) any other party in interest in these Chapter 11 Cases, (vi) any person or
entity that has made or makes an appearance in these Chapter 11 Cases, and (vii)
each of the foregoing's respective heirs, successors, assigns, trustees,
executors, administrators, affiliates, officers, directors, agents,
representatives, attorneys, beneficiaries or guardians.
MISCELLANEOUS
52. All applications for final allowances of compensation and
reimbursement of disbursements pursuant to Sections 330 and 503(b) of the
Bankruptcy Code shall be filed with the Court and served upon the Debtors, the
Creditors' Committee and the United States Trustee within forty-five days from
and after the Effective Date.
53. Unless otherwise ordered by the Bankruptcy Court after notice and a
hearing, the Reorganized Debtors shall have the exclusive right (except as to
(i) Claims or applications for bonuses of the Debtors' officers, directors and
employees and (ii) applications for allowances of compensation and reimbursement
of expenses under Sections 330 and 503 of the Bankruptcy Code) to make and file
objections to Administrative Expense Claims and Claims and shall serve a copy of
each objection upon the holder of the Administrative Expense Claim or Claim to
which the objection is made as soon as practicable, but in no event later than
thirty days after the
18
<PAGE>
Effective Date.
54. The Reorganized Debtors are authorized and directed to pay the
reasonable fees and expenses incurred by the Trustees in connection with making
distributions under the Plan.
55. The final order approving the DIP Credit Facility shall remain in
full force and effect through and including the full repayment in cash of all
obligations under the DIP Credit Facility. The Debtors shall pay in full in cash
all Postpetition Obligations payable or owing under the DIP Loan Documents in
accordance with the provisions of the DIP Loan Documents on or before the
Effective Date.
56. Within fifteen days after entry of this Order or within such
further time as the Court may allow, the Proponents shall mail to all known
creditors, shareholders and other parties in interest notice of the entry of
this Order. Such service of notice of entry of this Order is adequate and
satisfies the requirements of Bankruptcy Rule 2002 and 3020(c), and no further
notice is necessary.
19
<PAGE>
57. Notwithstanding anything contained in this Order or the Plan to the
contrary, none of the claims that any of the Debtors have against the defendants
named in Adversary Proceeding No. 99-574, whether asserted on unasserted, shall
be released or discharged, and none of the claims that any of such defendants
may have against the Debtors, whether asserted or unasserted, shall be released
or discharged, and all such claims will survive, subject to all legal and
equitable defenses applicable to such claims. Dated: Wilmington, Delaware
December __, 1999.
------------------------------------
PETER J. WALSH
CHIEF UNITED STATES BANKRUPTCY JUDGE
20
<PAGE>
EXHIBIT "A"
HVIDE MARINE INCORPORATED
HVIDE MARINE INTERNATIONAL, INC.
HVIDE MARINE TRANSPORT, INC.
HVIDE MARINE TOWING, INC.
HVIDE MARINE TOWING SERVICES, INC.
HVIDE CAPITAL TRUST
HMI OPERATORS, INC.
LIGHTSHIP LIMITED PARTNER
HOLDINGS, LLC
LONE STAR MARINE SERVICES, INC.
OCEAN SPECIALTY TANKERS
CORPORATION
OFFSHORE MARINE MANAGEMENT
INTERNATIONAL, INC.
SEABULK ALBANY, INC.
SEABULK ALKATAR, INC.
SEABULK ARABIAN, INC.
SEABULK ARCTIC EXPRESS, INC.
SEABULK ARIES II, INC.
SEABULK ARZANAH, INC.
SEABULK BARRACUDA, INC.
SEABULK BATON ROUGE, INC.
SEABULK BECKY, INC.
SEABULK BUL HANIN, INC.
SEABULK CAPRICORN, INC.
SEABULK CARDINAL, INC.
SEABULK CAROL, INC.
SEABULK CAROLYN, INC.
SEABULK CHAMP, INC.
SEABULK CHRISTOPHER, INC
SEABULK CLAIBORNE, 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 HAWAII, INC.
SEABULK HAWK, INC.
SEABULK HERCULES, INC.
SEABULK HERON, INC.
SEABULK HORIZON, INC.
SEABULK HOUBARE, INC.
SEABULK IBEX, INC.
SEABULK ISABEL, INC.
SEABULK JASPER, INC.
SEABULK JEBEL ALI, INC
SEABULK KATIE, INC..
SEABULK KESTREL, INC.
SEABULK KING, INC.
SEABULK KNIGHT, INC.
SEABULK LAKE EXPRESS, INC.
SEABULK LARA, INC.
SEABULK LARK, INC.
SEABULK LINCOLN, INC.
SEABULK LULU, INC.
SEABULK MAINTAINER, INC.
SEABULK MALLARD, INC.
SEABULK MARLENE, INC.
SEABULK MARTIN I, INC.
SEABULK MARTIN II, INC.
SEABULK MERLIN, INC.
SEABULK MUBARRAK, INC.
SEABULK NEPTUNE, INC.
SEABULK OCEAN SYSTEMS
CORPORATION
SEABULK OCEAN SYSTEMS
HOLDINGS CORPORATION
SEABULK OFFSHORE ABU DHABI, INC.
SEABULK OFFSHORE DUBAI, INC.
SEABULK OFFSHORE
HOLDINGS, INC.
SEABULK OFFSHORE
INTERNATIONAL, INC.
SEABULK OFFSHORE GLOBAL
HOLDINGS, INC.
SEABULK OFFSHORE LTD.
SEABULK OFFSHORE OPERATORS, INC.
SEABULK OFFSHORE OPERATORS
NIGERIA LIMITED
SEABULK OFFSHORE OPERATORS
TRINIDAD LIMITED
SEABULK OFFSHORE U.K. LTD.
SEABULK OREGON, 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 RED TERN LIMITED
SEABULK ROOSTER, INC.
SEABULK SABINE, 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 SUHAIL, INC.
SEABULK SWAN, INC.
SEABULK SWIFT, INC.
SEABULK TANKERS, LTD.
SEABULK TAURUS, INC.
SEABULK TENDER, INC.
SEABULK TIMS I, INC.
SEABULK TITAN, INC.
SEABULK TOOTA, INC.
SEABULK TOUCAN, INC.
SEABULK TRADER, INC.
SEABULK TRANSMARINE II, INC
SEABULK TRANSMARINE
PARTNERSHIP, LTD.
SEABULK TREASURE ISLAND, INC.
SEABULK UMM SHAIF, INC.
SEABULK VERITAS, INC.
SEABULK VIRGO I, INC.
SEABULK VOYAGER, INC.
SEABULK ZAKUM, INC.
SEAMARK LTD. INC.
SUN STATE MARINE SERVICES, INC.
SEABULK BETSY, INC.
SEABULK LIBERTY, INC.
SEABULK MASTER, INC.
HMI CAYMAN HOLDINGS, INC.
HVIDE MARINE DE VENEZUELA,
S.R.L.
MARANTA S.A.
SEABULK AMERICA
PARTNERSHIP, LTD.
<PAGE>
EXHIBIT C
Amendments to the First Amended Joint Plan of Reorganization
1. The reference in Section 4.2.1(b) of the Plan to "Section 1.60" is
amended to read "Section 1.62".
2. The reference in Section 6.2.9.(B) of the Plan to the "holder of a
Class 5 Claim" is amended to read the "holder of a Class 3B Claim."
3. The reference in Section 6.2.9.(C) of the Plan to the "holder of a
Class 6 Trust Preferred Securities Interest to the Property Trustee" is amended
to read the "holder of a Class 3C Trust Preferred Claim to the Convertible
Subordinated Debenture Indenture Trustee, Guaranty Trustee or the Property
Trustee", and the reference to "the holder of Trust Preferred Securities" is
amended to read "the holder of a Trust Preferred Claim."
4. Section 6.6.1(A) is amended to delete the reference to "the
Convertible Subordinated Debenture Claims and the Guarantee Claims" and to
substitute in its place "the Trust Preferred Claims."
5. Section 6.6.2 is amended to insert the words "evidencing standard
and customary evidence" after the word "instrument" in the fourth sentence
thereof, and after the word "instrument" in the final sentence thereof.
6. Section 8.3.1. of the Plan is amended to provide that the Board of
Directors of Reorganized HMI shall initially consist of nine individuals
designated by the Creditors' Committee after consultation with HMI.
7. Section 8.4. provides that on the Effective Date, HMI will be
reincorporated under the laws of the State of Delaware. In order to implement
that provision, the following sentence is added to the end of Section 8.4: "On
the Effective Date, all of the common stock of reorganized HMI, a Florida
corporation, shall be issued to Reorganized HMI, a Delaware corporation.
Immediately thereafter, the board of directors and officers of reorganized HMI,
a Florida corporation, and Reorganized HMI, a Delaware corporation, shall take
all steps necessary to effectuate the merger of reorganized HMI, a Florida
corporation, into Reorganized HMI, a Delaware corporation, with Reorganized HMI,
a Delaware corporation, to be the surviving corporation. Reorganized HMI, a
Delaware corporation, shall be the "successor" to the debtor HMI under the Plan,
as that term is used in section 1145 of the Bankruptcy Code.
8. The following new paragraph shall be added to Section 9.2 of the
Plan: "Notwithstanding any provision in the Plan, Confirmation Order or any bar
date order to the contrary, there will be no bar date with respect to claims of
the United States, and all rights and claims of the United States shall not be
discharged, impaired or otherwise adversely affected by the Plan, the
Confirmation Order and the bankruptcy cases, will survive the bankruptcy cases
as if the cases had not been commenced, and shall be determined in the manner
and by the
<PAGE>
administrative or judicial tribunal in which such rights or claims would have
been resolved or adjudicated if the bankruptcy cases had not been commenced. All
Claims of the United States shall remain subject to all legal and equitable
defenses of the Debtors or the Reorganized Debtors."
9. The following sentence shall be added to the end of the second
paragraph of Section 12.3 of the Plan: "Notwithstanding the foregoing, any and
all claims held by the Debtors against any officer or director as of the
Effective Date shall not be released as against any such former officer or
former director who asserts a Claim that could have been asserted prior to the
Effective Date against the Debtors or the Reorganized Debtors.
<PAGE>
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
- --------------------------------------------x
In re: : Chapter 11
Case No. 99-3024 (PJW)
HVIDE MARINE INCORPORATED, :
et al., (Jointly Administered)
Debtors. :
- --------------------------------------------x
SUPPLEMENT TO DEBTORS' FIRST
AMENDED JOINT PLAN OF REORGANIZATION
KRONISH LIEB WEINER & HELLMAN LLP
1114 Avenue of the Americas
New York, New York 10036-7798
(212) 479-6000
- and -
YOUNG, CONAWAY, STARGATT & TAYLOR LLP
Rodney Square North, 11 Floor
P.O. Box 391
Wilmington, Delaware 19899-0391
(302) 571-6600
Co-Counsel for the Debtors and
Debtors in Possession
Dated: Wilmington, Delaware
November 22, 1999
<PAGE>
Hvide Marine Incorporated ("HMI") and its affiliated debtors
(collectively, the "Debtors"), by their undersigned attorneys, hereby submit
this Plan Supplement in connection with their proposed First Amended Joint Plan
of Reorganization dated November 1, 1999 (the "Plan"). Included herein are
Exhibits to the Plan which will become effective in substantially the form as
they appear herein on the Effective Date of the Plan, as that term is defined in
the Plan, as well as Schedule 7.1(a) to the Plan.
EXHIBITS
Tab 1: Exhibit A - Registration Rights Agreement
Tab 2: Exhibit B - Class A Warrant Agreement
Tab 3: Exhibit C - New Certificate of Incorporation
of Reorganized Hvide Marine Incorporated
Tab 4: Exhibit D - New By-laws of Hvide Marine Incorporated
SCHEDULES
Tab 5: Schedule 7.1(a) - Rejected Executory Contracts
Also included is a form of Stock Option Plan for Reorganized Hvide
Marine Incorporated (Tab 6) to become effective on the Effective Date in
substantially the form annexed.
<PAGE>
This document will constitute the New Long Term Incentive Plan described in the
Disclosure Statement relating to the Plan.
Dated: November 1, 1999
KRONISH LIEB WEINER & HELLMAN LLP
By:
Robert J. Feinstein, Esq.
1114 Avenue of the Americas
New York, New York 10036-7798
(212) 479-6000
-and-
YOUNG, CONAWAY, STARGATT & TAYLOR LLP
By:
Laura Davis Jones, Esq.
Rodney Square North, 11 Floor
P.O. Box 391
Wilmington, Delaware 19899-0391
(302) 571-6600
Co-Counsel for the Debtors and
Debtors in Possession
