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United States FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of the January 14, 2005 OVERSEAS SHIPHOLDING GROUP, INC. 1-6749-1 Delaware 13-2637623 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
Securities and Exchange Commission
Washington, D.C. 20549
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
(Exact Name of Registrant as Specified in Charter)
Commission File Number
511 Fifth Avenue
New York, New York 10017
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code
(212) 953-4100
Section I - Registrant's Business and Operations.
Item 1.01. Entry into a Material Definitive Agreement.
On January 14, 2005, Overseas Shipholding Group, Inc. (the "Registrant"), and its wholly owned subsidiaries, OSG International Inc. and OSG Bulk Ships, Inc., as joint and several borrowers (collectively, the "Borrowers"), entered into a credit agreement (the "Credit Agreement") with the banks and financial institutions identified on Schedule I to the Credit Agreement, as lenders, and DnB NOR BANK ASA, as administrative agent. Pursuant to the Credit Agreement, the Borrowers may borrow up to $500 million on an unsecured basis for a term of up to seven years at a floating interest rate specified in the Credit Agreement.
The Credit Agreement contains customary affirmative, negative and financial covenants including financial covenants that require the maintenance of leverage and debt service coverage ratios. The summary of the Credit Agreement contained herein is not complete and is qualified in its entirety by the terms and provisions of the Credit Agreement, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
On January 20, 2005, the Registrant borrowed $500 million under the Credit Agreement (i) to refinance a portion of the existing indebtedness of Stelmar Shipping Ltd., a publicly traded company the shares of which the Registrant acquired on January 20, 2005, (ii) to finance a portion of such share purchase and (iii) for other lawful corporate purposes.
Section 2 - Financial Information.
Item 2.03. Creation of a direct financial obligation or an obligation under an off-balance sheet arrangement of a registrant
The disclosure set forth under Item 1.01 is incorporated herein by reference.
Section 9 - Financial Statements and Exhibits.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits
The following exhibit is included herein:
Exhibit No. |
Description |
10.1 |
Credit Agreement dated as of January 14, 2005, among the Registrant, OSG Bulk Ships, Inc. and OSG International, Inc., as joint and several borrowers, the banks and financial institutions identified on Schedule I thereto, as lenders, and DnB NOR BANK ASA, as administrative agent |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Overseas Shipholding Group, Inc. |
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(Registrant) |
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By: /s/Myles R. Itkin |
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Name: Myles R. Itkin |
Date: January 21, 2005
EXHIBIT INDEX
Exhibit No. |
Description |
10.1 |
Credit Agreement dated as of January 14, 2005, among the Registrant, OSG Bulk Ships, Inc. and OSG International, Inc., as joint and several borrowers, the banks and financial institutions identified on Schedule I thereto, as lenders, and DnB NOR BANK ASA, as administrative agent |
CREDIT AGREEMENT
Providing for a Senior Revolving
Credit Facility of
US$500,000,000
AMONG
OVERSEAS SHIPHOLDING GROUP, INC.
OSG BULK SHIPS, INC.
and
|OSG INTERNATIONAL, INC.,
as Joint and Several Borrowers
AND
The banks and financial institutions
identified on Schedule I, as Lenders
AND
DnB NOR BANK ASA,
acting through its New York Branch,
as Administrative Agent and Mandated Lead Arranger
Dated as of January 14, 2005
TABLE OF CONTENTS
Page
1. DEFINITIONS *
1.1. Defined Terms. *
1.2. Computation of Time Periods; Other Definitional Provisions. *
1.3. Accounting Terms. *
1.4. Certain Matters Regarding Materiality. *
1.5. Forms of Documents. *
2. THE FACILITY *
2.1. Purposes. *
2.2. Advances. *
2.3. Alternate Currencies. *
2.4. Drawdown Notice. *
2.5. Effect of Drawdown Notice. *
2.6. Funding of Advances. *
2.7. Notation of Advance. *
2.8. Reduction of the Commitments. *
2.9. Mandatory Prepayments. *
2.10. Several Obligations. *
2.11. Pro Rata Treatment. *
3. CONDITIONS *
3.1. Conditions Precedent to Availability of the Facility. *
(a) Corporate Authority. *
(b) The Agreement. *
(c) The Notes. *
(d) The Creditors. *
(e) Fees. *
(f) Environmental Claims. *
(g) Legal Opinions. *
(h) Appointment of Process Agent. *
(i) Officer's Certificate. *
(j) Financial Information. *
(k) Insurance. *
(l) List of Vessels. *
3.2. Further Conditions Precedent. *
(a) Drawdown Notice. *
(b) Representations and Warranties True. *
(c) No Default. *
(d) No Material Adverse Change. *
3.3. Breakfunding Costs. *
3.4. Satisfaction after Drawdown. *
4. REPAYMENT AND PREPAYMENT *
4.1. Repayment. *
4.2. Prepayment. *
4.3. Borrowers' Obligations Absolute. *
5. INTEREST AND RATE *
5.1. Payment of Interest; Interest Rate. *
5.2. Calculation of Interest. *
5.3. Maximum Interest. *
6. PAYMENTS *
6.1. Place of Payments; No Set Off. *
6.2. Federal Income Tax Credits. *
6.3. Sharing of Setoffs. *
7. REPRESENTATIONS AND WARRANTIES *
(a) Due Organization and Power. *
(b) Authorization and Consents. *
(c) Binding Obligations. *
(d) No Violation. *
(e) Filings; Stamp Taxes. *
(f) Approvals; Consents. *
(g) Litigation. *
(h) No Default. *
(i) ERISA. *
(j) Subsidiaries. *
(k) Financial Statements. *
(l) Tax Returns and Payments. *
(m) Chief Executive Office. *
(n) Insurance. *
(o) Foreign Trade Control Regulations. *
(p) Investment Company Act. *
(q) Environmental Matters and Claims. *
(r) Compliance with ISM Code and ISPS Code. *
(s) Threatened Withdrawal of DOC, SMC or ISSC. *
(t) Payment Free of Taxes. *
(u) No Material Adverse Change. *
(v) No Proceedings to Dissolve. *
(w) Compliance with Laws. Each of *
(x) OSG International Not Immune. *
(y) No Marshall Islands Filing Necessary. *
(z) Survival. *
8. COVENANTS *
8.1. Affirmative Covenants. *
A. Each of the Borrowers will: *
(a) Performance of Agreements. *
(b) Notice of Default. *
(c) Consents. *
(d) Financial Statements. *
(e) Rating Change *
(f) Preservation of Corporate Existence, Etc. *
(g) Books and Records *
(h) Inspection. *
(i) Inspection and Survey Reports. *
(j) Payment of Obligations *
(k) Compliance with Agreements, Statutes, etc. *
(l) Environmental Matters. *
(m) Maintenance of Assets. *
(n) Insurance. *
(o) Shipping Management. *
(p) Book Value. *
B. OSG will: *
(a) Consolidated Tangible Net Worth *
(b) Cash Adjusted Debt Service Coverage Ratio *
(c) Cash Adjusted Funded Debt to Cash Adjusted Consolidated Net
Tangible Assets *
(d) Unencumbered Assets to Unsecured Debt Ratio *
(e) Security Interest. *
(f) Exchange Listing *
(g) Ownership of OSG Bulk and OSG International *
(h) Administrative Agent for Service of Process. *
8.2. Negative Covenants. *
(a) Limitation on Secured Debt. *
(b) Limitations on Funded Debt. *
(c) Conduct of Business. *
(d) Limitation on Sale and Leasebacks. *
(e) Changes in Offices or Names. *
(f) Use of Proceeds. *
(g) Maximum Investments in Joint Ventures *
(h) Mergers, Consolidations and Sales of Assets. *
(i) No Money Laundering. *
(j) Transactions with Affiliates. *
(k) No Violation. *
9. EVENTS OF DEFAULT *
9.1. Events of Default. *
(a) Principal Payments *
(b) Interest and other Payments *
(c) Representations, etc *
(d) Impossibility, Illegality *
(e) Certain Covenants *
(f) Financial Covenants. *
(g) Covenants *
(h) Indebtedness and Other Obligations *
(a) . *
(i) Bankruptcy *
(j) Judgments *
(k) Inability to Pay Debts *
(l) ERISA Debt *
9.2. Indemnification. *
9.3. Application of Moneys. *
10. ASSIGNMENTS; PARTICIPATIONS; *
10.1. Assignments. *
10.2. Participations. *
10.3. Security Interest. *
10.4. Promissory Notes. *
11. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC. *
11.1. Illegality. *
11.2. Increased Cost. *
11.3. Nonavailability of Funds. *
11.4. Determination of Losses. *
11.5. Compensation for Losses. *
11.6. Compensation for Breakage Costs. *
11.7. Currency Indemnity. *
11.8. Replacement of Lender or Participant. *
12. FEES, EXPENSES AND INDEMNIFICATION *
12.1. Fees *
12.2. Expenses. *
12.3. Indemnification. *
12.4. Time of Payment. *
13. APPLICABLE LAW, JURISDICTION AND WAIVER *
13.1. Applicable Law. *
13.2. Jurisdiction. Each of *
13.3. Waiver of Jurisdiction, Forum Non Conveniens. *
13.4. WAIVER OF JURY TRIAL. *
14. THE ADMINISTRATIVE AGENT *
14.1. Appointment and Authorization *
14.2. Administrative Agent and Affiliates. *
14.3. Action by Administrative Agent. *
14.4. Consultation with Experts. *
14.5. Liability of the Administrative Agent. *
14.6. Indemnification. *
14.7. Credit Decision. *
14.8. Successor Administrative Agent. *
14.9. Administrative Fee. *
14.10. Distribution of Payments. *
14.11. Holder of Interest in Notes. *
14.12. Assumption re Event of Default. *
14.13. Notification of Event of Default. *
14.14. Limitations of Liability of Creditors. *
15. NOTICES AND DEMANDS *
16. LIMITATION OF LIABILITY/SURVIVAL OF LIABILITY/CONTINUING
INDEMNITIES *
16.1. Limitation of Liability. *
17. MISCELLANEOUS *
17.1. Time of Essence. *
17.2. Severability. *
17.3. References. *
17.4. Further Assurances. *
17.5. Prior Agreements, Merger. *
17.6. Entire Agreement, Amendments. *
17.7. Headings. *
17.8. Survival. *
17.9. Confidentiality. *
17.10. Counterparts. *
17.11. WAIVER OF IMMUNITY. *
SCHEDULE I - LENDERS
SCHEDULE II - FUNDED DEBT AT DECEMBER 31, 2004
SCHEDULE III - ACCEPTABLE BROKERS
SCHEDULE IV - ACCEPTABLE SHIPPING MANAGEMENT COMPANIES
EXHIBIT A - FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT B - PROMISSORY NOTE
EXHIBIT C - FORM OF DRAWDOWN NOTICE
EXHIBIT D - FORM OF COMPLIANCE CERTIFICATE
EXHIBIT E - FORM OF INTEREST NOTICE
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (the "Agreement") is made as of the 14th day of January, 2005, by and among (1) Overseas Shipholding Group, Inc., a corporation organized and existing under the laws of the State of Delaware ("OSG"), OSG Bulk Ships, Inc., a corporation organized and existing under the laws of the State of New York ("OSG Bulk"), and OSG International, Inc., a corporation organized and existing under the laws of the Republic of the Marshall Islands ("OSG International", jointly and severally with OSG and OSG Bulk, the "Borrowers", and each a "Borrower"), as joint and several borrowers, (2) the banks and financial institutions listed on Schedule I, as lenders (together with any assignee pursuant to Section 10, the "Lenders," each a "Lender") and (3) DnB NOR BANK ASA ("Dnb NOR"), acting through its New York Branch, as Administrative Agent for the Lenders (in such capacity, the "Administrative Agent").
WITNESSETH THAT:
WHEREAS, at the request of the Borrowers, the Administrative Agent has agreed to act in its capacity as set forth herein and the Lenders have agreed to provide the Borrowers a senior unsecured revolving credit facility in an amount of $500,000,000 on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as set forth below:
1.1 Defined Terms. In this Agreement the words and expressions specified below shall, except where the context otherwise requires, have the meanings attributed to them below:
"Adjusted Fixed Charges" |
shall mean for each period of four consecutive fiscal quarters (taken as a single accounting period) for which a determination is being made, the sum of (i) Fixed Charges plus (ii) the average of the amount of Current Debt of OSG and the Recourse Subsidiaries outstanding as of the end of each fiscal quarter within such period; |
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"Administrative Agent" |
shall have the meaning ascribed thereto in the preamble; |
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"Advance" |
shall mean any amount advanced or requested to be advanced to the Borrowers in Dollars or an Alternate Currency pursuant to Section 2.1; provided that each Advance shall be, if in Dollars, in a minimum amount of $10,000,000 and in larger multiples of $1,000,000 and, if in an Alternate Currency, the Dollar Equivalent of such amounts; |
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"Advance Time Charter Revenues" |
shall mean, as of the date of any determination thereof, the amount of advance time charter revenues of OSG and its Recourse Subsidiaries that are properly included on the liability side of OSG's most recent consolidated balance sheet, determined in accordance with GAAP, and if not listed as separate line items on such balance sheet, such amounts as are described separately in the applicable Compliance Certificate required pursuant to Section 8.1(A)(d)(iii); |
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"Affiliate" |
shall mean, with respect to any Person, (i) any Person that directly, or indirectly through one or more intermediaries, Controls such Person (a "Controlling Person") or (ii) any Person (other than such Person or a subsidiary of such Person) which is Controlled by or is under common Control with a Controlling Person; |
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"Alternate Currency" |
shall mean any of Euros, Yen, Pounds or Swiss Francs or, subject to the consent of the Majority Lenders, any other currency; |
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"Alternate Currency Advance" |
shall mean an Advance denominated in an Alternate Currency; |
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"Applicable Law" |
shall mean any Law of any Authority, including, without limitation, all national, Federal, state and local banking or securities laws, to which the Person in question is subject or by which it or any of its material property is bound; |
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"Applicable Margin" |
shall mean eight tenths of one percent (0.80%) per annum during the five (5) year period commencing on the date hereof and thereafter eighty-five hundredths of one percent (0.85%) per annum; |
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"Applicable Rate" |
shall mean, in respect of any Advance, the rate of interest on such Advance from time to time applicable pursuant to Section 5.1; |
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"Assignment and Assumption Agreement(s)" |
shall mean the Assignment and Assumption Agreement(s) executed pursuant to Section 10.1 substantially in the form of Exhibit A; |
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"Attributable Debt" |
shall mean, as of the date of any determination thereof, in connection with any Sale and Leaseback Transaction which is not permitted pursuant to Section 8.2(d)(ii), the lesser of (i) the sum of the Fair Market Value of any vessels subject to such transaction and the fair market value of any non-vessel assets subject to such transaction or (ii) the present value (computed in accordance with GAAP at the imputed rate of interest used in such transaction) of the obligation of a lessee in such transaction for Rentals during the remaining term of any lease (including any period for which such lease has been extended or may, at the option of the lessor, be extended); |
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"Authority" |
shall mean any governmental or quasi-governmental authority, whether executive, legislative, judicial, administrative or other, or any combination thereof, including, without limitation, any national, Federal, state, local, territorial, county, municipal or other government or governmental or quasi-governmental agency, arbitrator, board, body, branch, bureau, commission, corporation, court, department, instrumentality, master, mediator, panel, referee, system or other political unit or subdivision or other entity of any of the foregoing, whether domestic or foreign; |
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"Banking Day(s)" |
shall mean day(s) on which banks are open for the transaction of business in London, England and New York, New York; |
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"Book Value" |
shall mean, as of the date of any determination thereof, for any asset of OSG and the Recourse Subsidiaries, the value at which the asset of OSG and the Recourse Subsidiaries is recorded and reported by OSG in its consolidated financial statements in accordance with GAAP, consistently applied; |
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"Borrower(s)" |
shall have the meaning ascribed thereto in the preamble; |
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"Capital Construction Funds" |
shall mean as of the date of any determination thereof, the aggregate amount on deposit in capital construction funds established and maintained pursuant to agreement with the Secretary of Transportation in accordance with Section 1177 of the Merchant Marine Act, 1936, as amended, 46 U.S.C. Appx. Section 1177, for the account of OSG and the Recourse Subsidiaries; |
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"Capitalized Lease" |
of any Person shall mean any lease or other arrangement conveying the right to use real or personal property where the obligations for Rentals are required to be capitalized on a balance sheet of the lessee in accordance with GAAP; |
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"Capitalized Rentals" |
of any Person shall mean, as of the date of any determination thereof, the capitalized amount of all Rentals due and to become due under all Capitalized Leases of such Person, as lessee, reflected as a liability on the balance sheet of such Person; |
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"Cash" |
shall mean as of the date of any determination thereof, the total amount of all cash and Cash Equivalents as determined in accordance with GAAP of OSG and the Recourse Subsidiaries including, without limitation, cash of OSG and the Recourse Subsidiaries included in Capital Construction Funds (net of any taxes calculated at the applicable rate for non-qualified withdrawals pursuant to Section 1177 of the Merchant Marine Act, 1936, as amended, 46 U.S.C. Appx. Section 1177, and penalties thereon, if any), interest-bearing deposits in banks or trust companies described in clause (c) of the definition of "Permitted Investments" with maturities of less than one year held by OSG and the Recourse Subsidiaries as the same are reflected in a consolidated balance sheet of OSG and the Subsidiaries delivered in accordance with Section 8.1(A)(d), and "Cash" shall also include, for the purposes of the calculations of Cash Adjusted Consolidated Net Tangible Assets and Cash Adjusted Funded Debt requir ed by Section 8.1(B)(c) only, Cash of OSG and the Recourse Subsidiaries included in Restricted Funds; |
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"Cash Adjusted Consolidated |
shall mean, as of the date of any determination thereof, Consolidated Net Tangible Assets less (a) Cash and (b) the value of marketable securities (as defined in accordance with GAAP) of OSG and the Recourse Subsidiaries, including, without limitation, marketable securities (net of taxes calculated as provided in the definition of Cash) in the Capital Construction Funds; |
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"Cash Adjusted Debt |
shall mean, for each four consecutive fiscal quarter periods (taken as a single accounting period) for which a determination is being made, the ratio of Cash Adjusted Income Available for Fixed Charges to Adjusted Fixed Charges; |
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"Cash Adjusted Funded Debt" |
shall mean, as of the date of any determination thereof, Consolidated Funded Debt less (a) Cash and (b) the value of marketable securities (as defined in accordance with GAAP ) of OSG and the Recourse Subsidiaries, including, without limitation, marketable securities (net of taxes calculated as provided in the definition of Cash) in the Capital Construction Funds; |
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"Cash Adjusted Income Available for Fixed Charges" |
shall mean, for any period, with respect to OSG and the Recourse Subsidiaries, the sum of (without duplication) (i) Net Income Available for Fixed Charges, (ii) depreciation and amortization of OSG and the Recourse Subsidiaries determined on a consolidated basis in accordance with GAAP for such period, (iii) the average of the amounts of Cash outstanding as of the end of each of the four consecutive quarterly fiscal periods included in the determination, and (iv) the average value of marketable securities ( as defined in accordance with GAAP ) of OSG and the Recourse Subsidiaries as of the end of each of the four consecutive quarterly fiscal periods included in the determination, including, without limitation, marketable securities (net of taxes calculated as provided in the definition of Cash) in the Capital Construction Funds; |
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"Cash Equivalents" |
shall mean (i) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof), and (ii) time deposits, certificates of deposit or deposits in the interbank market of any commercial bank of recognized standing organized under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000, and rated at least A or the equivalent thereof by S&P in respect of (ii) above, in each case having maturities of less than one year from the date of acquisition; |
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"Closing Date" |
shall mean the date on which each of the conditions precedent to the availability of the Facility set forth in Section 3.1 shall have been met or waived; |
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"Code" |
shall mean the Internal Revenue Code of 1986, as amended, and any successor statute and regulations promulgated thereunder; |
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"Collateralized Assets" |
shall mean as of the date of determination any assets of OSG that are pledged or mortgaged as security for any type of financing (including Capitalized Leases); |
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"Commitment" |
shall mean, in relation to a Lender, the portion of the Facility set out opposite its name in Schedule I hereto, or as the case may be, as set out in any Assignment and Assumption Agreement, as changed from time to time pursuant to the terms of this Agreement; |
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"Compliance Certificate" |
shall mean a certificate in the form set out in Exhibit D, or in such other form as the Administrative Agent may agree, certifying the compliance by each of the Borrowers with all of its covenants contained herein and showing the calculations thereof, which certificate shall be executed and delivered by the chief executive officer, the chief operating officer or the chief financial officer of OSG or the designee thereof to the Administrative Agent with sufficient copies for the other Creditors to be distributed to the other Creditors by the Administrative Agent promptly upon receipt thereof pursuant to Section 8.1(A)(d) ; |
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"Consolidated Funded Debt" |
shall mean, as of the date of determination, all Funded Debt of OSG and the Recourse Subsidiaries, determined on a consolidated basis eliminating intercompany items; |
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"Consolidated Net Income" |
for any period shall mean consolidated net income of OSG and the Recourse Subsidiaries for such period, as shown on the consolidated financial statements of OSG and the Recourse Subsidiaries delivered in accordance with Section 8.1(A)(d); |
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"Consolidated Net Tangible Assets" |
shall mean as of the date of any determination thereof the total amount of all Tangible Assets after excluding therefrom (i) all Restricted Investments (valued in accordance with GAAP) and (ii) any write-up of fixed assets of OSG and the Recourse Subsidiaries other than write-ups in accordance with GAAP of assets of a business made upon the acquisition of such business after December 31, 2001 and after deducting all liabilities except deferred income taxes, deferred credits, Advance Time Charter Revenues, Minority Interests, Unterminated Voyage Revenues and Consolidated Funded Debt; |
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"Consolidated Tangible Net Worth" |
shall mean, as of the date of any determination thereof, the total of stockholders' equity (as shown on the most recent consolidated balance sheet of OSG and the Recourse Subsidiaries) less Intangible Assets of OSG and the Recourse Subsidiaries; |
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"Control" |
shall mean, for purposes of the definition of "Affiliate," with respect to any Person, 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 contract or otherwise (for purposes of the aforesaid definition, the term "Control" used as a verb has a corresponding meaning); |
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"Conversion Date" |
shall have the meaning ascribed thereto in Section 11.7(a); |
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"Creditors" |
shall mean, together, the Administrative Agent and the Lenders, each, a "Creditor"; |
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"Current Debt" |
of any Person shall mean as of the date of any determination thereof (i) the Current Portion, (ii) all other Debt of such Person other than Funded Debt and (iii) (without duplication) Guarantees by such Person of Debt of the type described in clauses (i) and (ii); |
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"Current Portion" |
with respect to any Person or consolidated group of Persons shall mean the portion (determined in accordance with GAAP) of long-term Debt of such Person(s) shown as a current liability on the consolidated balance sheet of such Person(s); |
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"Debt" |
of any Person shall mean (i) all liabilities for money borrowed (excluding, in the case of OSG or any Recourse Subsidiary, Debt defined herein as Non-Recourse Debt) as determined in accordance with GAAP eliminating intercompany items, (ii) (without duplication) all Capitalized Rentals of such Person (other than rentals owing from OSG or any Recourse Subsidiary to OSG or another Recourse Subsidiary), and (iii) (without duplication) all Guarantees by such Person of Debt of Persons (other than, in the case of OSG or any Recourse Subsidiary, Debt of OSG or any Recourse Subsidiary); |
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"Default" |
shall mean any event that would, with the giving of notice or passage of time, or both, be an Event of Default; |
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"Default Rate" |
shall mean a rate per annum equal to the greater of (i) two percent (2%) over the Applicable Rate then in effect and (ii) the sum of (x) two percent (2%) plus (y) the Applicable Margin plus (z) the LIBOR Rate for overnight or weekend deposits, as applicable; |
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"Defeased Amount" |
shall have the meaning ascribed thereto in Section 9.1; |
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"Derivatives Obligations" |
of any Person shall mean all obligations of such Person in respect of any rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions; |
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"DnB NOR" |
shall have the meaning ascribed thereto in the preamble; |
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"DOC" |
shall mean a document of compliance issued to an Operator in accordance with rule 13 of the ISM Code; |
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"Dollars" or "$" |
shall mean the legal currency, at any relevant time hereunder, of the United States of America and, in relation to all payments hereunder, in same day funds settled through the New York Clearing House Interbank Payments System (or such other Dollar funds as may be determined by the Administrative Agent to be customary for the settlement in New York City of banking transactions of the type herein involved); |
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"Dollar Equivalent" |
shall mean any notional amount of an Alternate Currency at the Dollar Exchange Rate; |
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"Dollar Exchange Rate" |
shall be the average of the rates of exchange quoted by at least three (3) Lenders selected by the Administrative Agent or, if at the date of determination there are fewer than three (3) Lenders, all Lenders and as determined by the Administrative Agent on a date on which payment is due on any Advance hereunder or a day on which this Agreement requires the calculation of amounts advanced or available hereunder in Dollars, as the spot rate of exchange in the relevant interbank market of Dollars for any of the Alternate Currencies, as the case may be, or vice versa, in either case, including any costs associated with the relevant exchange contract, or if no such rates of exchange are offered on such date in respect of such Alternate Currency, such exchange rate in respect of such Alternate Currency as the Administrative Agent deems reasonable; |
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"Drawdown Date(s)" |
shall mean, with respect to any Advance, the date, being a Banking Day, upon which the Borrowers have requested that such Advance be made available to the Borrowers as provided in Section 2.4; |
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"Drawdown Notice" |
shall have the meaning ascribed thereto in Section 2.4; |
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"Environmental Affiliate" |
shall have the meaning ascribed thereto in Section 8.1(A)(l); |
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"Environmental Approvals" |
shall have the meaning ascribed thereto in Section 7(q); |
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"Environmental Claim" |
shall have the meaning ascribed thereto in Section 7(q); |
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"Environmental Laws" |
shall have the meaning ascribed thereto in Section 7(q); |
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"ERISA" |
shall mean the Employee Retirement Income Security Act of 1974, as amended; |
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"ERISA Affiliate" |
shall mean a trade or business (whether or not incorporated) which is under common control with any Borrower within the meaning of Sections 414(b),(c),(m) or (o) of the Code; |
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"ERISA Group" |
shall mean OSG and its subsidiaries; |
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"Euro(s)" |
shall mean the legal currency, at any relevant time hereunder, of the European Monetary Union; |
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"Event(s) of Default" |
shall mean any of the events set out in Section 9.1; |
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"Exchange Act" |
shall mean the Securities Exchange Act of 1934, as amended; |
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"Facility" |
the line of credit, in an amount not to exceed Five Hundred Million Dollars ($500,000,000) in aggregate principal amount, to be made available to the Borrowers pursuant to Section 2 hereof, as the same may be reduced from time to time pursuant to Section 2.8 hereof; provided, however, that at any time one or more Alternate Currency Advances is outstanding or requested by the Borrowers, such amount shall be reduced by an amount equal to ten percent (10%) of the Dollar Equivalent of the aggregate amount of all outstanding Alternate Currency Advances; |
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"Facility Balance" |
shall mean, as of the date of determination, the Dollar amount of the Facility outstanding at such time; |
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"Facility Period" |
shall mean the period from the date hereof to the date which is seven (7) years from the date hereof; |
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"Fair Market Value" |
shall mean, in respect of any vessel, the average of two sets of appraised values of such vessel as determined by two (2) independent brokers chosen from the brokers listed on Schedule III, such vessel to be valued on a stand alone basis, free and clear of any liens, charters or other encumbrances and with no value given to any pooling arrangements. One broker shall be selected by the Borrowers and one broker shall be selected by the Administrative Agent. No appraisal shall be dated more than thirty (30) days prior to the date on which such appraisal is required pursuant to this Agreement; |
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"Fee Letter" |
shall mean that certain letter agreement by and between the Administrative Agent and the Borrowers dated as of January 14, 2005; |
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"Final Payment Date" |
shall mean the date which falls on the seventh (7th) anniversary of the date of this Agreement. If such day is not a Banking Day, the Final Payment Date shall be the immediately preceding Banking Day or such earlier date on which all sums become due and payable under this Agreement whether by prepayment, acceleration or otherwise; |
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"Fixed Charges" |
for any period shall mean on a consolidated basis the sum of (i) all Rentals (other than Capitalized Rentals) payable in respect of such period by OSG and the Recourse Subsidiaries, and (ii) all Interest Charges on all Indebtedness (including the interest component of Capitalized Rentals) of OSG and the Recourse Subsidiaries; |
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"Funded Debt" |
of any Person shall mean all Debt of such Person having a final maturity of more than one year from the date of origin thereof (or which is renewable or extendible at the option of the obligor for a period or periods more than one year from the date of origin), excluding the Current Portion of such Debt solely to the extent that such Person has sufficient availability under (i) existing credit facilities (including this Agreement) or (ii) underwritten commitments on terms reasonably satisfactory to the Administrative Agent to refinance such Current Portion for a period of at least 12 months; |
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"GAAP" |
shall mean generally accepted accounting principles at the time in the United States, except that (so long as the Statement of Financial Accounting Standards No. 94 (or any substantially similar successor statement) is in effect), with respect to financial statements of OSG and the Recourse Subsidiaries, the failure to consolidate Non-Recourse Subsidiaries shall be deemed to be in accordance with such principles; |
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"Guarantee" |
by any Person shall mean, without duplication, any obligation (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection), contingent or otherwise, of such Person (the "Guarantor") directly or indirectly guaranteeing or having the economic effect of a guarantee of any Debt or other obligation of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of the Guarantor (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation or any security therefor (whether arising by virtue of partnership arrangements, by agreement to keep-well, to take-or-pay (or similar arrangements involving the purchase of goods, securities or services), or to maintain working capital, equity capital or any other financial statement condition or liquidity of such other Person or otherwise); or (ii) entered into for the purpose of a ssuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term "Guarantee" used as a verb has a corresponding meaning; |
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"Indebtedness" |
of any Person shall mean and include all obligations of such Person which in accordance with GAAP shall be classified upon a balance sheet of such Person as liabilities of such Person, and in any event shall include all Debt of such Person; |
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"Intangible Assets" |
shall mean, as of the date of any determination thereof, goodwill, patents, trade names, trademarks, copyrights, franchises, experimental expenses, organization expenses, unamortized debt discount and expenses, deferred charges (other than unamortized deferred drydock costs, unterminated voyage expenses, prepaid insurance, prepaid taxes, prepaid charterhire and other prepaid items properly excludable from intangible assets under GAAP), the excess of cost of shares acquired over fair value of underlying tangible assets and such other assets as are properly classified as "intangible assets" in accordance with GAAP; |
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"Interest Charges" |
for any period shall mean all interest and all amortization of debt discount and expense on any particular Indebtedness for which such calculations are being made; |
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"Interest Notice" |
means a notice from the Borrowers to the Administrative Agent to be delivered to the Administrative Agent at least three (3) Banking Days prior to the end of any then existing Interest Period and specifying the duration of any relevant Interest Period, substantially in the form of Exhibit E; |
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"Interest Period" |
shall mean with respect to any Advance, (a) each seven (7) day period (a "Seven Day Interest Period") or each one (1), three (3), six (6) or twelve (12) month period commencing on the date such Advance is made or the last day of the next preceding Interest Period with respect to such Advance and ending on the seventh (7th) day thereafter or on the same day in the first, third, sixth or twelfth calendar month thereafter, in each case, as selected by the Borrowers in the Interest Notice or, (b) in the Lenders' discretion, such other period(s) in excess of twelve (12) months as may be agreed; provided, however, (i) in each case, that each such Interest Period (if such Interest Period is a whole number of months) which commences on the last Banking Day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last Banking Day of the appropriate subsequent calendar month, (ii) th at if no LIBOR Rate is quoted or available for a 12 month Interest Period or a Seven Day Interest Period, the Borrowers shall not request, and the Lenders need not fund, a 12 month Interest Period or a Seven Day Interest Period, as the case may be, (iii) there shall be no more than four (4) Seven Day Interest Periods outstanding at any time and (iv) there shall be no more than twelve (12) Interest Periods outstanding at any one time; provided, however, that Interest Periods may be consolidated at the end of any Interest Period. If at the end of any then existing Interest Period the Borrowers fail to deliver an Interest Notice or an Event of Default shall have occurred and be continuing, the relevant Interest Period shall be one month. |
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Notwithstanding the foregoing, (i) no Interest Period for any Advance may extend beyond the Final Payment Date; (ii) each Interest Period which would otherwise end on a day which is not a Banking Day shall end on the next succeeding Banking Day (or, if such next succeeding Banking Day falls in the next succeeding calendar month, on the next preceding Banking Day); and (iii) each Interest Period which would otherwise commence before and end after the Final Payment Date shall end on the Final Payment Date; |
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"Investments" |
shall mean all investments, regardless of the form of consideration paid therefor, directly or indirectly in any Person, whether by acquisition of shares of capital stock, indebtedness or other obligations or Securities or by loan, advance, capital contribution or otherwise; provided, however, that "Investments" shall not mean or include routine investments in property to be used or consumed in the ordinary course of business; |
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"ISM Code" |
shall mean the International Safety Management Code for the Safe Operating of Ships and for Pollution Prevention constituted pursuant to Resolution A.741(18) of the International Maritime Organization and incorporated into the Safety of Life at Sea Convention and shall include any amendments or extensions thereto and any regulation issued pursuant thereto; |
"ISPS Code" |
shall mean the International Ship and Port Facility Code adopted by the International Maritime Organization at a conference in December 2002 and incorporated into the Safety of Life at Sea Convention and shall include any amendments or extensions thereto and any regulation issued pursuant thereto; |
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"ISSC" |
shall mean the International Ship Security Certificate issued pursuant to the ISPS Code; |
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"Joint Venture" |
shall mean at any date any Person (other than a Subsidiary) in which OSG or any Subsidiary has an ownership interest or profits or loss which would be accounted for in the consolidated financial statements of OSG and its consolidated Subsidiaries by the equity method if such statements were prepared as of such date; |
"judgment currency" |
shall have the meaning ascribed thereto in Section 11.7(a); |
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"Law" |
shall mean any law, rule, regulation or official code, consent decree, constitution, decree, directive, enactment, guideline, injunction, interpretation, judgment, order, ordinance, policy statement, proclamation, promulgation, requirement, rule of law, rule of public policy, settlement agreement, statute, or writ, of any Authority; |
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"Lender(s)" |
shall have the meaning ascribed thereto in the preamble; |
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"LIBOR Rate" |
shall mean, with respect to any Interest Period for any Advance, the rate per annum determined by the Administrative Agent to be equal to the quotient (rounded upwards, if necessary, to the next higher fourth decimal) of (y) (i) the rate of interest for deposits in Dollars or the relevant Alternate Currency, as the case may be for a period equal to the number of days in such Interest Period which appears as of 11:00 A.M., London time, on the day that is two (2) Banking Days prior to the first day of such Interest Period, as displayed on page LIBOR01 of the Reuters screen in the case of Dollars, Pounds, Yen or Euros (or such other page which may replace such page) or page LIBOR02 of the Reuters screen in the case of Swiss Francs (or such other page which may replace such page), as the case may be, on such system or on any other system of the information vendor being designated by the British Bankers' Association to calculate the BBA Interest Settlement Rate (as defined in the British Bankers' Association Recommended Terms and Conditions dated August 1985) or (ii) if no rate is so displayed at such time, LIBOR shall be equal to the arithmetic mean (rounded upward if necessary to four decimal places) of the rates respectively quoted to the Administrative Agent by each of the Reference Banks as the offered rate for deposits of Dollars or the relevant Alternate Currency, as the case may be, in an amount approximately equal to the amount in relation to which LIBOR is to be determined for a period equivalent to such Interest Period (or, in the case of a Seven Day Interest Period, if greater, the rate of interest for deposits in Dollars or the relevant Alternate Currency, as the case may be, for a one month period) to prime banks in the London Interbank Market at or about 11:00 a.m. (London time) on the second LIBOR Reference Day before the first day of such period, divided by (z) a number equal to 1.00 minus the LIBOR Rate Reserve Percentage; |
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"LIBOR Rate Reserve Percentage" |
shall mean, for any day, the maximum percentage (expressed as a decimal) specified from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirements (including, but not limited to, supplemental, marginal and emergency reserves) with respect to eurocurrency funding (currently referred to as "Eurocurrency Liabilities") of a member bank in such System. The LIBOR Rate shall be adjusted automatically with respect to any Advance outstanding on the effective date of any change in the LIBOR Rate Reserve Percentage, as of such effective date; |
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"LIBOR Reference Date" |
shall mean the days on which banks in the London interbank market generally will provide quotations for deposits in the relevant currencies; |
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"Lien" |
shall mean, with respect to any asset, any interest in such asset securing an obligation owed to, or a claim by, a Person other than the owner of the asset, whether such interest is based on the common law, statute or contract, and including but not limited to the security interest or lien arising from a mortgage, encumbrance, pledge, conditional sale, title retention agreement or trust receipt or a lease, consignment or bailment for security purposes or any arrangement having substantially the same economic effect as any of the foregoing. The term "Lien" shall include reservations, exceptions, encroachments, easements, rights-of-way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances (including, with respect to stock, any purchase options or calls, stockholder agreements, voting trust agreements, buy-back agreements and all similar arrangements) affecting property. For the purposes of this Agreement, OSG or a Recourse Subsidiary shall be deemed to be the owner of any property which it has acquired or holds subject to a conditional sale agreement, Capitalized Lease or other arrangement pursuant to which title to the property has been retained by or vested in some other Person for security purposes and such retention or vesting shall constitute a Lien; |
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"List of Vessels" |
shall mean a list of vessels more than fifty percent (50%) owned directly or indirectly by the Borrowers or any Subsidiary, which list shall describe each Lien on any such vessel; |
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"Majority Lenders" |
shall mean Lenders whose aggregate Commitments exceed fifty-one percent (51%) of the total Commitments or if the Commitments have terminated, Lenders holding in the aggregate in excess of fifty-one percent (51%) of the Facility Balance; |
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"Material Adverse Change" |
shall mean the occurrence of an event or condition which (a) materially impairs the ability of OSG and the Subsidiaries to meet or perform any of their obligations with regard to (i) the Facility and the financing arrangements established in connection therewith or (ii) any of their respective other obligations that are material to OSG and the Subsidiaries considered as a whole or (b) materially impairs the rights of or benefits or remedies available to the Lenders under this Agreement; |
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"Material Financial Obligations" |
means a principal or face amount of Debt (in the case of Derivatives Obligations, determined in respect of any counterparty on a net basis) in each case of OSG and/or one or more of the Subsidiaries, and arising in one or more related or unrelated transactions, exceeding in the aggregate $10,000,000 (or its equivalent in any other currency); |
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"Material Subsidiary" |
shall mean, at any date, each of the following: (i) any Subsidiary (other than OSG Bulk or OSG International) which owns, leases or charters any vessel on such date and/or (ii) any Subsidiary or Subsidiaries the assets of which, individually or in the aggregate, had an aggregate book value (net of depreciation) as of the date of the consolidated balance sheet of OSG and the Subsidiaries most recently delivered or required to be delivered to the Administrative Agent pursuant to Section 8.1(A)(d) prior to such date, in excess of the lesser of (x) $50,000,000 and (y) 2% of the aggregate book value (net of depreciation) of all assets of OSG and the Subsidiaries as of the date of such balance sheet; |
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"Materials of Environmental Concern" |
shall have the meaning ascribed thereto in Section 7 (q); |
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"Minority Interests" |
shall mean any shares of stock of any class of a Subsidiary (other than directors' qualifying shares as required by law) that are not owned by OSG and/or one or more of the Recourse Subsidiaries. Minority Interests shall be valued by valuing Minority Interests constituting preferred stock at the voluntary or involuntary liquidation value of such preferred stock, whichever is greater, and by valuing Minority Interests constituting common stock at the book value of capital and surplus applicable thereto adjusted, if necessary, to reflect any changes from the book value of such common stock required by the foregoing method of valuing Minority Interests in preferred stock; |
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"Moody's" |
shall mean Moody's Investors Service, Inc.; |
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"Multiemployer Plan" |
shall mean a "multiemployer plan" (as defined in Section 4001(a)(3) of ERISA) to which any Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions; |
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"Multiple Employer Plan" |
shall mean an employee benefit plan, other than a Multiemployer Plan, subject to Title IV of ERISA to which a Borrower or ERISA Affiliate, and one or more employers other than a Borrower or ERISA Affiliate, is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which a Borrower or ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan; |
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"Net Income Available for Fixed Charges" |
for any period shall mean Consolidated Net Income excluding extraordinary gains or losses (adjusted for taxes, if any) during such period plus (to the extent used in the determination of Consolidated Net Income), (i) all provisions for any Federal, state or other taxes based on income made by OSG and the Recourse Subsidiaries during such period and (ii) Fixed Charges during such period; |
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"Non-Recourse Debt" |
shall mean Debt of any Subsidiary (i) that is not Guaranteed by OSG or any Recourse Subsidiary, (ii) that is not secured by a Lien on any asset of OSG or any Recourse Subsidiary and (iii) with respect to which Debt or Subsidiary neither OSG nor any of the Recourse Subsidiaries has any express obligation or has written any instrument or letter indicating its support for such Debt or Subsidiary; provided that Debt of such Subsidiary shall constitute Non-Recourse Debt only if (x) OSG shall have given the Lenders, through the Administrative Agent, written notice at least twenty (20) days prior to the incurrence, issuance, assumption or Guarantee thereof (or, in the case of Debt of a Person to be acquired by such Subsidiary, prior to the time of such acquisition) and (y) the terms and conditions of the related documentation insofar as they relate to the non-recourse nature of such Debt, and the final form of such documentation with respect thereto, shall be reasonably satisfactory to the Majority Lenders; |
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"Non-Recourse Subsidiary" |
shall mean, at any time, a Subsidiary (i) having no Debt at such time (other than Non-Recourse Debt) and (ii) as to which an officer of OSG has, prior to the issuance, incurrence, assumption or Guarantee of any Non-Recourse Debt by such Subsidiary, delivered a certificate to the Administrative Agent certifying that such Subsidiary is a Non-Recourse Subsidiary in accordance with the terms of this Agreement; |
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"Note" |
shall mean promissory notes, to be executed by the Borrowers in favor of a Lender pursuant to Section 3.1(c) to evidence the Advances made by such Lender and substantially in the form set out in Exhibit B or in such other form as the Administrative Agent may agree and shall include any promissory note issued by the Borrowers pursuant to Section 10.4, collectively, the "Notes"; |
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"Operating Assets" |
of OSG and the Recourse Subsidiaries shall mean, as of the date of any determination thereof, all assets of such Person as determined in accordance with GAAP other than Cash and marketable securities of OSG and the Recourse Subsidiaries; |
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"Operator" |
shall mean, in respect of any of the Borrowers' vessels, the Person who is concerned with the operation of such vessel and falls within the definition of "Company" set out in rule 1.1.2 of the ISM Code; |
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"OSG" |
shall have the meaning ascribed thereto in the preamble ; |
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"OSG Bulk" |
shall have the meaning ascribed thereto in the preamble; |
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"OSG International" |
shall have the meaning ascribed thereto in the preamble; |
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"Participant" |
shall have the meaning ascribed thereto in Section 10.2; |
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"PBGC" |
shall mean the Pension Benefit Guaranty Corporation; |
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"Permitted Country(ies)" |
shall mean any or all of the following: United States of America, United Kingdom, Ireland, France, Belgium, the Netherlands, Germany, Sweden, Denmark, Norway, Switzerland, Finland, Austria, Spain, Portugal, Italy, Luxembourg, Greece, the Cayman Islands, Canada and Japan; |
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"Permitted Investments" |
shall mean any of the following: (a) Investments in commercial paper maturing in 270 days or less from the date of issuance which, at the time of acquisition by OSG or any Subsidiary, is rated one of the two highest ratings by S&P or by Moody's or any substantially similar commercial paper or short-term ratings by any other nationally recognized credit rating agency domiciled in the United States of America or the United Kingdom which in the reasonable opinion of the Majority Lenders is of similar standing and with comparable rating categories and methodologies (a "Substitute Rating Agency"); (b) Investments in obligations directly issued by or fully and unconditionally guaranteed as to principal and interest by the United States of America or any agency or instrumentality of the United States of America, in either case, maturing in three (3) years or less from the date of acquisition thereof; (c) Investments in certificates of deposit, time deposits or bankers' acceptances issued by a Lender or any other bank or trust company organized under the laws of any Permitted Country or any state thereof, having capital, surplus and undivided profits aggregating at least $500,000,000 maturing in 270 days or less from the date of acquisition thereof;
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"Person" |
shall mean an individual, partnership, corporation, limited liability company, business trust, bank, trust company, joint venture, association, joint stock company, trust or other unincorporated organization, whether or not a legal entity, or any government or agency or political subdivision thereof; |
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"Plan" |
shall mean any employee benefit plan (other than a Multiemployer Plan or a Multiple Employer Plan) covered by Title IV of ERISA or Section 302 of ERISA; |
"Pound(s)" |
shall mean the legal currency, at any relevant time hereunder, of the United Kingdom; |
"Rate of exchange" |
shall have the meaning ascribed thereto in Section 11.7(d); |
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"Recourse Subsidiaries" |
shall mean all Subsidiaries of OSG other than the Non-Recourse Subsidiaries; |
"Reference Banks" |
shall mean the banks chosen from time to time by the British Bankers' Association for the purpose of establishing Interest Settlement Rates; |
"Regulation T" |
shall mean Regulation T of the Board of Governors of the Federal Reserve System, as in effect from time to time; |
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"Regulation U" |
shall mean Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time; |
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"Regulation X" |
shall mean Regulation X of the Board of Governors of the Federal Reserve System, as in effect from time to time; |
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"Rentals" |
shall mean and include as of the date of any determination thereof all fixed payments (including as such all payments which the lessee is obligated to make to the lessor on termination of the lease or surrender of the property) payable by a Person, as lessee or sublessee under a lease of real or personal property (excluding (i) fixed payments on any item of personal property involving rentals of less than $1,000 per month each and $10,000 per month in the aggregate), and (ii) hire and other amounts payable under any time charter of a vessel for a remaining period less than twelve (12) months, including any optional extensions or renewals) but shall be exclusive of any amounts required to be paid by such Person, directly or indirectly (whether or not designated as rents or additional rents), on account of maintenance, repairs, insurance, taxes and similar charges incurred by such lessee or sublessee. Fixed rents under any so-called "percentage leases" shall be computed solely on the basis o f the minimum rents, if any, required to be paid by the lessee regardless of sales volume or gross revenues; |
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"Restricted Funds" |
shall mean restricted funds established and maintained pursuant to Title XI reserve fund and financial agreements between OSG or any of the Subsidiaries and the Secretary of Transportation in accordance with Title XI of the Merchant Marine Act, 1936, as amended, and the regulations promulgated thereunder; provided that "Restricted Funds" shall mean, for any period, the aggregate amount on deposit in Restricted Funds as so defined as of the last day of such period, as the same is reflected in a consolidated balance sheet of OSG and the Subsidiaries as of such date; |
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"Restricted Investments" |
shall mean all Investments by OSG or any Recourse Subsidiary in any Person or property except the following: (a) Permitted Investments; (b) Cash; (c) Investments in Shipping and Related Businesses; (d) Investments by OSG and the Recourse Subsidiaries in and to Recourse Subsidiaries, including any Investment in a corporation which, after giving effect to such Investment, will become a Recourse Subsidiary; (e) Investments in property to be used in the ordinary course of business; (f) Investments in marketable securities (as defined in accordance with GAAP); and (g) Investments (in addition to those listed in (a) through (f) above) in Persons not engaged in Shipping and Related Businesses and which are not Recourse Subsidiaries in an amount (excluding Investments existing as of the date of this Agreement) not to exceed the sum of (i) $10,000,000 plus (ii) 10% of Consolidated Tangible Net Worth; |
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"Sale and Leaseback Transaction" |
shall mean any arrangement with any Person to which such Person is a party, (not including, in either case, OSG or any Recourse Subsidiary) providing for the leasing by OSG or a Recourse Subsidiary for a period, including renewals, in excess of three years of any asset which has been or is to be sold or transferred more than 180 days after the acquisition or occupancy thereof or the completion of construction and commencement of full operation thereof, whichever is later, by OSG or any Recourse Subsidiary to such Person; |
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"Secured Debt" |
shall mean all Debt of OSG or any Recourse Subsidiaries which is secured by a Lien on any of the property or assets of OSG or any of the Recourse Subsidiaries; |
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"Securities and Exchange Commission" |
shall mean the United States Securities and Exchange Commission or any other governmental authority of the United States of America at the time administrating the Securities Act of 1933, as amended, the Investment Company Act of 1940, as amended, or the Exchange Act; |
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"Security" |
shall have the same meaning as in Section 2(1) of the Securities Act of 1933, as amended; |
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"Shipping and Related Businesses" |
shall mean any one or all of the following: owning, chartering, leasing, crewing, navigating, managing, supplying or operating or repairing commercial vessels of all kinds, including but not limited to cargo ships, liners, container ships, passenger vessels, tugs, barges and ferries; owning, operating or managing transportation assets ancillary to or in furtherance of the transportation of freight and passengers by water; owning, operating or managing terminals and other facilities of any kind incidental or ancillary to or in furtherance of the transportation of freight and passengers by water; and owning, managing or operating terminals, docks, piers, quays, wharves, dry docks, storage facilities and port facilities incidental or ancillary to or in furtherance of the transportation of freight and passengers by water; |
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"S&P" |
shall mean Standard & Poor's Ratings Services, a division of McGraw-Hill Inc.; |
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"SMC" |
means the safety management certificate issued in respect of any of the Borrowers' vessels in accordance with rule 13 of the ISM Code; |
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"Subordinated Funded Debt" |
shall mean all unsecured Funded Debt of the Borrowers which shall contain or have applicable thereto subordination provisions (reasonably satisfactory to the holders of not less than 66 2/3% in aggregate principal amount of the Commitments or, if the Commitments have been terminated, of the Facility Balance) providing for the subordination of such unsecured Funded Debt to other Debt of the Borrowers, including, without limitation, to the Notes; |
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"subsidiary" |
shall mean as to any particular Person, at any date, any corporation, limited liability company, partnership or other entity of which more than 50% (by number of votes of the Voting Stock or other ownership interests having ordinary voting power) are beneficially owned or controlled, directly or indirectly, by such Person and/or one or more other subsidiaries of such Person; |
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"Subsidiary(ies)" |
shall mean a/the subsidiary(ies) of OSG; |
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"Subsidiary Structurally Subordinated Assets" |
shall mean, as of the date of any determination thereof, for any Recourse Subsidiary (other than OSG Bulk or OSG International), an amount equal to the Debt which is not Secured Debt plus one-third (1/3) of an amount equal to (i) the total Book Value of assets minus (ii) the total amount of Debt which is not Secured Debt: |
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"Swiss Francs" |
shall mean the legal currency, at any time hereunder, of the Federation of Switzerland; |
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"Tangible Assets" |
shall mean, as of the date of determination thereof, the Book Value of assets of OSG and the Recourse Subsidiaries (less depreciation, depletion and other properly deductible valuation reserves) after deducting Intangible Assets therefrom; |
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"Taxes" |
shall mean any present or future income or other taxes, levies, duties, charges, fees, deductions or withholdings of any nature now or hereafter imposed, levied, collected, withheld or assessed by any taxing authority whatsoever, except for taxes on or measured by the overall net income of any Lender imposed by the United States of America, the State or The City of New York or any governmental subdivision or taxing authority of any thereof or by any other taxing authority having jurisdiction over such Lender (unless such jurisdiction is asserted solely by reason of the activities of the Borrowers or any of the Subsidiaries); |
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"Termination Event" |
shall mean (i) a "reportable event," as such term is defined in Section 4043 of ERISA, (ii) the withdrawal of any Borrower or any ERISA Affiliate from a Multiple Employer Plan during a plan year in which it was a "substantial employer," as such term is defined in Section 4001(a)(2) of ERISA, or the incurrence of liability by any Borrower or any ERISA Affiliate under Section 4064 of ERISA upon the termination of a Multiple Employer Plan, (iii) the filing of a notice of intent to terminate a Plan under Section 4041 of ERISA or the termination or the treatment of a Multiemployer Plan amendment as a termination under Section 4041A of ERISA, (iv) the institution of proceedings to terminate a Plan or a Multiemployer Plan or (v) any other event or condition which might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan; |
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"Transaction Documents" |
shall mean each of this Agreement and the Notes; |
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"Unencumbered Assets" |
shall mean, as of the date of any determination thereof, Tangible Assets (excluding the Book Value of any assets of any Subsidiaries, the shares of stock or any evidence of Indebtedness of which have been pledged to secure any obligations) less the sum of (without duplication) (i) Attributable Debt and (ii) the Book Value of any assets of OSG and any Recourse Subsidiary which have become or have been agreed to become subject to a Lien securing any Secured Debt and (iii) Subsidiary Structurally Subordinated Assets; |
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"Unsecured Debt" |
shall mean, as of the date of any determination thereof, all Debt of OSG and the Subsidiaries other than Secured Debt; |
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"Unterminated Voyage Revenues" |
shall mean, as of the date of any determination thereof, accrued but unpaid revenues for uncompleted voyages the amounts thereof determined in accordance with GAAP as reflected in the consolidated financial statements of OSG and the Recourse Subsidiaries; |
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"Voting Stock" |
shall mean, with respect to any Person, Securities of any class or classes, the holders of which are ordinarily, in the absence of contingencies, entitled to elect a majority of the corporate directors (or Persons performing similar functions) of such Person; |
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"Withdrawal Liability" |
shall have the meaning given to such term under Part 1 of Subtitle E of Title IV of ERISA; and |
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"Yen" |
shall mean the legal currency, at any time hereunder, of Japan. |
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(a) Not later than 11:00 A.M. New York City time on the Drawdown Date of each Advance, each Lender shall (except as provided in subsection (b) of this Section) make available its share of such Advance, in Federal or other funds immediately available in New York City, to the Administrative Agent at its address set forth on Schedule I or to such account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. Unless the Administrative Agent determines that any applicable condition specified in Section 3.1 or 3.2 has not been satisfied, the Administrative Agent will make the funds so received from the Lenders available to the Borrowers at the aforesaid address, subject to the receipt of funds by the Administrative Agent as provided in the immediately preceding sentence, not later than 2:30 P.M. New York City time on the date of such Advance, and in any event as soon as practicable after receipt.
(b) If any Lender makes a new Advance hereunder to any Borrower on a day on which such Borrower is to repay all or any part of an outstanding Advance from such Lender, such Lender shall apply the proceeds of its new Advance to make such repayment and only an amount equal to the difference (if any) between the amount being borrowed from such Lender by such Borrower and the amount being repaid to such Lender shall be made available by such Lender to the Administrative Agent as provided in subsection (b) of this Section, or remitted by such Borrower to the Administrative Agent for repayment to such Lender, as the case may be.
(c) Unless the Administrative Agent shall have received notice from a Lender prior to the Drawdown Date of any Advance that such Lender will not make available to the Administrative Agent such Lender's share of such Advance, the Administrative Agent may assume that such Lender has made such share available to the Administrative Agent on the date of such Advance in accordance with subsections (a) and (b) of this Section 2.6 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrowers on such date a corresponding amount. If and to the extent that such Lender shall not have so made such share available to the Administrative Agent, such Lender and the Borrowers (but without duplication) severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrowers until the date such amount is repaid to the Administrat ive Agent, at (i) in the case of the Borrowers, the interest rate applicable thereto pursuant to Section 5.1(a) and (ii) in the case of such Lender, the LIBOR Rate. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's Advance included in such Advance for purposes of this Agreement as of the date such Advance was made. Nothing in this subsection (c) shall be deemed to relieve any Lender of its obligation to make Advances to the extent provided in this Agreement. In the event that the Borrowers are required to repay an Advance to the Administrative Agent pursuant to this Section 2.6(c), as between the Borrowers and the defaulting Lender, the liability for any breakage costs as described in Section 11.6 shall be borne by the defaulting Lender. If the defaulting Lender has not paid any such breakage costs upon demand by the Administrative Agent therefor, the Borrowers shall pay such breakage costs upon demand by the Administrative Agent and the Borrowers shall be entitled to recover any such payment for breakage costs made by the Borrowers from the defaulting Lender.
(b) On the Final Payment Date, the Commitments shall be reduced to zero and any Advances then outstanding (together with accrued interest thereon) shall be due and payable on such date.
(c) Upon the effectiveness of any reduction pursuant to Section 2.8(a) hereof, the term "Commitment" shall mean the Commitments of each Lender in effect immediately prior to such reduction less the amount of such reduction of the Commitment.
(i) copies, certified as true and complete by an officer of each Borrower, of the resolutions of its board of directors and, with respect to OSG Bulk and OSG International, shareholders evidencing approval of this Agreement and the Notes and authorizing an appropriate officer or officers or attorney-in-fact or attorneys-in-fact to execute the same on its behalf;
(ii) copies, certified as true and complete by an officer of each Borrower, of all documents evidencing any other necessary action, approvals or consents with respect to this Agreement and the Notes and the transactions contemplated hereby and thereby;
(iii) copies, certified as true and complete by an officer of each Borrower, of the certificate or articles of incorporation and by-laws or similar constituent document thereof;
(iv) certificate of the jurisdiction or incorporation or formation, as the case may be, of each Borrower as to the good standing thereof; and
(v) a certificate signed by the President, Senior Vice President, Treasurer, Comptroller, Controller or chief financial officer of each of the Borrowers to the effect that (A) no Default or Event of Default shall have occurred and be continuing and (B) the representations and warranties of the Borrowers contained in this Agreement are true and correct as of the date of such certificate.
(b) Notwithstanding the foregoing, each Borrower jointly and severally agrees that after the occurrence and during the continuance of an Event of Default, each outstanding Advance shall bear interest at a rate per annum equal to the Default Rate. In addition, each Borrower hereby jointly and severally promises to pay interest on any Advance or any installment thereof and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest, and on any other amount payable by the Borrowers hereunder which shall not be paid in full when due (whether at stated maturity, by acceleration or otherwise), for the period commencing on the due date thereof until but not including the date the same is paid in full at the Default Rate.
(c) Except as provided in the next sentence, accrued interest on each Advance shall be payable (i) on the last day of each Interest Period, except that if the Borrowers shall select an Interest Period in excess of three (3) months, accrued interest shall be payable during such Interest Period on each three (3) month anniversary of the commencement of such Interest Period and upon the last day of such Interest Period, and (ii) with each repayment of principal thereof. Interest payable at the Default Rate shall be payable from time to time on demand of the Administrative Agent.
In order to induce the Creditors to enter into this Agreement and to make the Facility available, each of the Borrowers hereby represents and warrants, to the Creditors (which representations and warranties shall survive the execution and delivery of this Agreement and the Notes and each drawdown of the Facility) that:
A. Each of the Borrowers will:
(i) as soon as available and in any event within 105 days after the end of each fiscal year of OSG, (A) a consolidated balance sheet of OSG and the Subsidiaries as of the end of such fiscal year and the related consolidated statements of income and retained earnings and cash flows for such fiscal year, setting forth in each case in comparative form the figures as of the end of and for the previous fiscal year, complying in all material respects with all applicable rules and regulations promulgated by the Securities and Exchange Commission, in each case accompanied by an unqualified opinion of Ernst & Young LLP or other independent public accountants of nationally recognized standing and (B) if there are any Non-Recourse Subsidiaries, an unaudited consolidated balance sheet of OSG and the Recourse Subsidiaries as of the end of such fiscal year and the related unaudited consolidated statements of income and retained earnings and cash flows for such fiscal year, setting forth in each c ase in comparative form the figures as of the end of and for the previous fiscal year, together with a letter from the independent public accountants referred to in the foregoing clause (A) confirming the mathematical accuracy of such financial statements and the derivation thereof on a reasonable basis from the audited financial statements referred to in clause (A);
(ii) as soon as available and in any event within 60 days after the end of each of the first three fiscal quarters of each fiscal year of OSG, (A) an unaudited consolidated balance sheet of OSG and the Subsidiaries as of the end of such fiscal quarter and the related unaudited consolidated statements of income and retained earnings and cash flows for such fiscal quarter and for the portion of OSG's fiscal year ended at the end of such fiscal quarter, setting forth in each case in comparative form the figures as of the end of and for the corresponding fiscal quarter and the corresponding portion of OSG's previous fiscal year, all certified (subject to normal year-end adjustments) as to fairness of presentation and compliance in all material respects with all applicable rules and regulations of the Securities and Exchange Commission with respect to interim financial statements and consistency by the chief financial officer or the chief accounting officer of OSG and (B) if there are any No n-Recourse Subsidiaries, an unaudited consolidated balance sheet of OSG and the Recourse Subsidiaries as of the end of such fiscal quarter and the related unaudited consolidated statements of income and retained earnings and cash flows for such fiscal quarter and for the portion of OSG's fiscal year ended at the end of such fiscal quarter, setting forth in each case in comparative form the figures as of the end of and for the corresponding fiscal quarter and the corresponding portion of OSG's previous fiscal year, together with a certificate of the chief financial officer or chief accounting officer of OSG as to the derivation of such financial statements from the financial statements referred to in clause (A) of this subsection (ii);
(iii) simultaneously with the delivery of each set of financial statements referred to in clauses (i)(A) and (ii)(A) above, a Compliance Certificate of OSG executed by OSG's chief financial officer or chief accounting officer (A) setting forth in reasonable detail the calculations required to establish whether the covenants set forth in Sections 8.1(B) (a) through (d), Sections 8.2(a) through (d) and Section 8.2(g) are complied with as of the last day of the fiscal period covered by such financial statements, and (B) stating whether any Default or Event of Default exists on the date of such Certificate and, if any Default or Event of Default then exists, setting forth the details thereof and the action which the Borrowers are taking or propose to take with respect thereto;
(iv) simultaneously with the delivery of each set of financial statements referred to in clause (i)(A) above, a statement of the firm of independent public accountants which reported on such statements (A) stating whether anything has come to their attention to cause them to believe that OSG and the Subsidiaries were not in compliance with any of the covenants set forth in Sections 8.1(B) (a) through (d), Sections 8.2(a) through (d) and Section 8.2(g) on the date of such statements and (B) confirming the calculations set forth in the officer's certificates delivered simultaneously therewith pursuant to subsection (iii) above or, with respect to the calculations required to derive the amount referred to in the covenants set forth in Sections 8.1(B) (a) through (d), Sections 8.2(a) through (d) and Section 8.2(g), verifying the mathematical accuracy of such calculations and comparing Consolidated Net Income for each of the relevant fiscal quarters with the consolidated income statemen t of OSG and the Recourse Subsidiaries for such fiscal quarter;
(v) within three (3) Banking Days after the date on which any executive officer of any of the Borrowers obtains knowledge of (A) any Default or Event of Default, if such Default or Event of Default is then continuing, or (B) a Material Adverse Change or any action, suit or proceeding of the type referred to in Section 7(g), a certificate of the chief financial officer or the chief accounting officer of each of the Borrowers setting forth the details thereof and the action which the Borrowers are taking or propose to take with respect thereto;
(vi) promptly upon the mailing thereof to the shareholders of OSG generally, copies of all financial statements, reports and proxy statements so mailed;
(vii) promptly upon the filing thereof, copies of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their equivalents) which OSG shall have filed with the Securities and Exchange Commission;
(viii) as soon as possible, (A) copies of all reports and notices which any member of the ERISA Group or ERISA Affiliate files under ERISA with the Internal Revenue Service or the PBGC or the U.S. Department of Labor or the sponsor of a Multiemployer Plan or which any member of the ERISA Group or ERISA Affiliate receives from the PBGC or the sponsor of a Multiemployer Plan relating to (1) any Termination Event and (2) with respect to a Multiemployer Plan, any Withdrawal Liability, or any actual or expected reorganization (within the meaning of Title IV of ERISA) or termination of a Multiemployer Plan (within the meaning of Title IV of ERISA) and (B) a certificate of the chief financial officer or chief accounting officer of OSG setting forth in reasonable detail the calculation of the amount (to the extent then reasonably determinable) of any liability in connection with the foregoing;
B. OSG will:
(ii) The Administrative Agent shall, promptly and in no event later than five (5) Banking Days of receiving notice that collateral has been released pursuant to the terms of such Senior Credit Facility, release or deliver a signed termination statement or other document releasing any Lien relating to the collateral that was granted under this Agreement because of the lien on such collateral.
(i) Funded Debt of OSG and the Recourse Subsidiaries outstanding as of December 31, 2004 as the same is set forth on Schedule II attached hereto;
(ii) Funded Debt of OSG and the Recourse Subsidiaries; provided, however, that at the time of issuance thereof and immediately after giving effect thereto the Borrowers shall be in compliance with Section 8.1(B)(c);
(iii) Renewals, extensions or refundings of Funded Debt referred to in Section 8.2(b)(i) or incurred pursuant to the provisions of Section 8.2(b)(ii), without increase in the ranking or priority thereof or principal amount thereof; provided that in the case of any refunding of any such Funded Debt, the newly issued Funded Debt shall have a weighted average life to maturity at least equal to the remaining weighted average life to maturity of the Funded Debt being refunded; and
(iv) Funded Debt under the Facility.
(i) after giving effect to such Sale and Leaseback Transaction, the ratio of Unencumbered Assets to Unsecured Debt shall be not less than 1.50 to 1; or
(ii) the proceeds of the sale of the assets to be leased are at least equal to their fair market value and such proceeds are applied (or committed pursuant to a binding written contract to be applied within 24 months of receipt thereof) to (A) the purchase, acquisition or construction of assets to be used in the business of OSG and the Subsidiaries or (B) retire Funded Debt ; provided that the percentage of proceeds, if any, applied to pay Subordinated Funded Debt shall not exceed the percentage which Subordinated Funded Debt represents of Consolidated Funded Debt. Pending the actual application of such proceeds for the purposes described in clauses (A) or (B) above, such proceeds shall be held by OSG or the relevant Subsidiary in Permitted Investments only.
then, the Lenders' obligation to make the Facility available shall cease and the Administrative Agent on behalf of the Lenders may, with the Majority Lenders' consent and shall, upon the Majority Lenders' instruction, by notice to the Borrowers, declare the Commitments terminated and the Facility Balance, accrued interest and any other sums payable by the Borrowers hereunder and under the Notes due and payable whereupon the same shall forthwith be due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived; provided that upon the happening of an event specified in subclauses (i) or (k) of this Section 9.1, the Commitments shall automatically terminate without further action of any kind and the Facility Balance, accrued interest and any other sums payable by the Borrowers hereunder and under the Notes shall be immediately due and payable without declaration, presentment, demand, protest or other notice to the Borrowers, all of which are expressly waived. In such event, the Creditors may proceed to protect and enforce their rights by action at law, suit in equity or in admiralty or other appropriate proceeding, whether for specific performance of any covenant contained in this Agreement or in the Notes or in aid of the exercise of any power granted herein or therein, or the Lenders or the Administrative Agent may proceed to enforce the payment of the Notes when due or to enforce any other legal or equitable right of the Lenders, or proceed to take any action authorized or permitted by Applicable Law for the collection of all sums due, or so declared due, including, without limitation, the right to appropriate and hold or apply (directly, by way of set-off or otherwise) to the payment of the obligations of the Borrowers to any of the Creditors hereunder and/or under the Notes (whether or not then due) all moneys and other amounts of the Borrowers then or thereafter in possession of any Creditor, the balance of any deposit account (demand or time, matured or unmatured) of the Borrowers then or thereafter with any Creditor and every other claim of the Borrowers then or thereafter against any of the Creditors. Notwithstanding the foregoing, any Event of Default comprising an event described in sub-clause (f) of this Article 9.1 shall be deemed waived or cured, as the case may be, if immediately upon the occurrence of such event the Borrowers place an amount equal to the Facility Balance (the "Defeased Amount") in an interest bearing collateral account maintained with and pledged to the Administrative Agent for and on behalf of the Lenders. Any amounts on deposit in such collateral account for the Borrowers' obligations hereunder shall be released to the Borrowers by the Administrative Agent upon restored compliance with the covenant theretofore breached.
and the result of the foregoing is either to increase the cost to such Lender or Participant or its parent holding company, of making available or maintaining the Facility or any part thereof or to reduce the rate of return on assets or equity of such Lender or Participant or the amount of any payment received by such Lender or Participant or its parent holding company, then and in any such case if such increase or reduction in the opinion of such Lender or Participant materially affects the interests of such Lender or Participant or its parent holding company under or in connection with this Agreement:
Any such notice referred to in subsections (i) and (ii) of this Section 11.2 may be made by a Lender or Participant at any time before or within one (1) year after any repayment of the Facility Balance; provided, however, that before making any such demand, such Lender or Participant agrees to use its best efforts (consistent with its internal policy and legal and regulatory restrictions) to designate a different lending office if the making of such designation would avoid the need for, or reduce the amount of, such increased cost or such reduction and would not, in the judgment of such Lender or Participant, be otherwise disadvantageous to such Lender or Participant.
such compensation to include, without limitation, an amount equal to the excess, if any, of (i) the amount of interest which would have accrued on the principal amount so paid, prepaid or not borrowed for the period from the date of such payment, prepayment or failure to borrow to the last day of the then current Interest Period for such Advance or, in the case of a failure to borrow, the Interest Period for such Advance which would have commenced on the date of such failure to borrow, in each case at the applicable rate of interest for such Advance provided for herein over (ii) the amount of interest which otherwise would have accrued on such principal amount at a rate per annum equal to the interest component (as reasonably determined by the relevant Lenders and/or Participants) of the amount (as reasonably determined by such Lenders and/or Participants) the Lenders and/or Participants would have bid in the Eurocurrency market for Dollar deposits of amounts comparable to such principal amount and maturities comparable to such Interest Period. Any certification of a relevant Lender or Participant shall, absent manifest error, be conclusive and binding on the Borrowers as to the extent of any such losses.
(b) If there is a change in the rate of exchange prevailing between the Conversion Date and the date of actual payment of the amount due, the Borrowers shall pay such additional amounts (if any, but in any event not a lesser amount) as may be necessary to ensure that the amount paid in the judgment currency when converted at the rate of exchange prevailing on the date of payment will produce the amount then due under this Agreement and/or the Notes, in Dollars; any excess over the amount due received or collected by the Creditors and Participants shall be remitted to the Borrowers.
(c) Any amount due from the Borrowers under Section 11.7(b) shall be due as a separate debt and shall not be affected by judgment being obtained for any other sums due under or in respect of this Agreement and/or the Notes.
(d) The term "rate of exchange" in this Section 11.7 means the rate at which the Administrative Agent in accordance with its normal practices is able on the relevant date to purchase Dollars with the judgment currency and includes any premium and costs of exchange payable in connection with such purchase.
(a) Each Lender irrevocably appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the Notes as are delegated to the Administrative Agent by the terms hereof or thereof, together with all such powers as are reasonably incidental thereto. The Administrative Agent hereby accepts such appointment.
All notices, requests, demands and other communications to any party hereunder shall be in writing (including prepaid overnight courier, facsimile transmission or similar writing) and shall be given to the Borrowers and the Administrative Agent at their respective addresses or telecopy numbers set forth below and to any Lender at the address or telecopy number set forth on Schedule I or at such other address or telecopy number as such party may hereafter specify for the purpose by notice to each other party hereto. Each such notice, request or other communication shall be effective (i) if given by telecopy or e-mail, when such telecopy or e-mail is transmitted to the telecopy number or e-mail address, as the case may be, specified in this Section and (telephonic, in the case of a telecopy) confirmation of receipt thereof is obtained or (ii) if given by mail, prepaid overnight courier or any other means, when received at the address specified in this Section or when delivery a t such address is refused.
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If to the Borrowers: |
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c/o OSG Ship Management, Inc. |
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and |
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DnB NOR Bank ASA |
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Telephone: (212) 681-3863 |
IN WITNESS whereof the parties hereto have caused this Agreement to be duly executed by their duly authorized representative as of the day and year first above written.
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OVERSEAS SHIPHOLDING GROUP, INC., |
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as Borrower |
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By /s/Myles R. Itkin |
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Name: Myles R. Itkin |
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Title: Senior Vice President, Treasurer |
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OSG BULK SHIPS, INC., |
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as Borrower |
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By /s/Myles R. Itkin |
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Name: Myles R. Itkin |
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Title: Senior Vice President and Treasurer |
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OSG INTERNATIONAL, INC., |
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as Borrower |
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By /s/Myles R. Itkin |
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Name: Myles R. Itkin |
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Title: Senior Vice President and Treasurer |
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DnB NOR BANK ASA, |
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acting through its New York branch, |
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as Administrative Agent and Lender |
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By /s/Nikolai A. Nachamkin |
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Name: Nikolai A. Nachamkin |
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Title: Senior Vice President |
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By /s/Trules Negard |
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Name: Trules Negard |
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Title: General Manager/EVP |
SCHEDULE I
Lenders |
Commitment |
DnB NOR Bank ASA, Telephone: (212) 681-3863 |
$500,000,000 |
EXHIBIT A
FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT
between
[NAME OF ASSIGNOR]
and
[NAME OF ASSIGNEE]
______________,
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of ___________, ____ between [NAME OF ASSIGNOR], a [bank]/[corporation] organized under the laws of [JURISDICTION OF ASSIGNOR] (the "Assignor"), and [NAME OF ASSIGNEE], a [bank]/[corporation] organized under the laws of [JURISDICTION OF ASSIGNEE] (the "Assignee"), supplemental to:
Except as otherwise defined herein, terms defined in the Credit Agreement have the same meaning when used herein.
In consideration of the premises and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
If to the Assignor:
[NAME OF ASSIGNOR]
[ADDRESS]
Attention:
Telephone:
Facsimile:
E-mail:
If to the Assignee:
[NAME OF ASSIGNEE]
[ADDRESS]
Attention:
Telephone:
Facsimile:
E-mail:
Every notice or demand hereunder shall be deemed to have been received at the time of receipt thereof. The Assignee designates its address given above as its address for notices pursuant to Section 15 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
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[NAME OF ASSIGNOR] By |
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[NAME OF ASSIGNEE] By |
Consented and Agreed this |
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OVERSEAS SHIPHOLDING GROUP, INC. Name: Title:
OSG BULK SHIPS, INC. |
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By______________________________ |
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Name: |
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OSG INTERNATIONAL, INC. |
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By______________________________ |
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Name: |
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EXHIBIT B
PROMISSORY NOTE
US $ |
________ __, 2005 |
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New York, New York |
FOR VALUE RECEIVED, each of the undersigned, OVERSEAS SHIPHOLDING GROUP, INC., a corporation organized and existing under the laws of the State of Delaware, OSG BULK SHIPS, INC., a corporation incorporated under the laws of New York, and OSG INTERNATIONAL, INC., a corporation incorporated under the laws of the Republic of the Marshall Islands (each, a "Borrower" and collectively, the "Borrowers"), hereby jointly and severally promises to pay to the order of [INSERT NAME OF BANK], a corporation organized and existing under the laws of [__________], (the "Lender"), at its office at [INSERT ADDRESS], or as it may otherwise direct, the principal sum of [INSERT AMOUNT OF COMMITMENT] United States Dollars ($__________) or, if less, the aggregate unpaid principal amount of the Advance from time to time outstanding made by the Lender to the Borrowers pursuant to the Credit Agreement, dated as of January __, 2005, by and among (i) the Borrowers, (ii) the banks and fin ancial institutions whose names and addresses are set forth in Schedule I thereto, and (iii) DnB NOR Bank ASA, acting through its New York branch, as Administrative Agent and lender (as amended, restated, modified or supplemented from time to time, the "Credit Agreement"). The Borrowers shall repay the principal amount of such Advances as provided in Section 4 of the Credit Agreement, but in any event no later than the Final Payment Date.
Words and expressions used herein (including those in the foregoing paragraph) and defined in the Credit Agreement shall have the same meaning herein as therein defined.
Each Advance shall bear interest at the rate as set forth in Section 5.1 of the Credit Agreement. Any principal payment not paid when due, whether by acceleration or otherwise, shall bear interest thereafter at the Default Rate. All interest shall accrue and be calculated on the actual number of days elapsed and on the basis of a 360 day year and be payable as provided in the Credit Agreement.
Both principal and interest are payable in Dollars or the applicable Alternate Currencies to the Administrative Agent, at its office located at 200 Park Avenue, New York, New York 10166 (or to such other branch of the Lender as the Lender may direct).
The Lender may endorse the amount and the date of the making of each Advance evidenced hereby and each payment of principal hereunder on the grid annexed hereto and made a part hereof, which endorsement shall constitute prima facie evidence of the accuracy of the information so endorsed; provided, however, that any failure to endorse such information on such grid shall not in any manner affect the obligation of the Borrowers to make payment of principal and interest in accordance with the terms of this Promissory Note.
If this Promissory Note or any payment required hereunder becomes due and payable on a day which is not a Banking Day the due date thereof shall be extended until the next following Banking Day (in which event, interest shall be payable during such extension at the rate applicable immediately prior thereto), unless such next following Banking Day falls in the following month in which case such payment shall be payable on the Banking Day next preceding the day on which such payment would otherwise be payable.
Amounts due hereunder may be prepaid in accordance with the terms of the Credit Agreement.
This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of, the Credit Agreement. Upon the occurrence of any Event of Default, the principal hereof and accrued interest hereon may become, or may be declared to be and shall thereupon become, forthwith due and payable.
Presentment, demand, protest and notice of dishonor of this Promissory Note and any other notice of any kind are hereby expressly waived.
THE BORROWERS AND, BY ITS ACCEPTANCE HEREOF, THE LENDER, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO OR ANY BENEFICIARY HEREOF ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS PROMISSORY NOTE.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrowers have executed and delivered this Promissory Note on the date and year first above written.
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OVERSEAS SHIPHOLDING GROUP, INC. |
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By_____________________________ |
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Name: |
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Title: |
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OSG BULK SHIPS, INC. |
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By_____________________________ |
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Name: |
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Title: |
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OSG INTERNATIONAL, INC. |
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By_____________________________ |
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Name: |
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Title: |
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Amount of Principal Paid |
Unpaid |
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EXHIBIT C
DRAWDOWN NOTICE
___________ __, ____
DnB NOR BANK ASA
New York Branch
200 Park Avenue
New York, New York 10017
Attention: Nikolai Nachamkin
Attention:
Ladies and Gentlemen:
Please be advised that, in accordance with the terms of Section 2.4 of the Credit Agreement, dated as of January __, 2005, among (i) Overseas Shipholding Group, Inc., OSG Bulk Ships, Inc. and OSG International, Inc., as borrowers (the "Borrowers"), (ii) the banks and financial institutions listed on Schedule I thereto, as lenders, and (iii) DnB NOR Bank ASA, acting through its New York branch, as Administrative Agent (the "Credit Agreement"), the undersigned hereby gives you notice of drawdown of a Advance. All terms used herein, shall have the meanings given thereto in the Credit Agreement.
Name(s) of Borrower(s) (and allocation if more than one Borrower): |
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Amount of Advance: |
US$___________________ |
Currency: Drawdown Date: |
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Initial Interest Period |
[7 day/1/3/6/12 month(s)] |
Disbursement Instructions: |
________________________ |
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We hereby warrant that the representations and warranties stated in Section 7 (updated mutatis mutandis) of the Credit Agreement are true and correct on the date hereof and will be true and correct on the date that the Advance requested by this drawdown notice is made and that no Default or Event of Default has occurred and is continuing.
In the event that the Lenders and Participants, if any, shall not be obliged under the terms of the Credit Agreement to make the above requested Advance (including, without limitation any such failure resulting from the failure of the Borrowers to satisfy a condition precedent set forth in Section 3 of the Credit Agreement), the Borrowers shall indemnify and hold fully harmless the Lenders, Participants or any of them, against any losses which the Lenders, Participants or any of them, may sustain as a result of borrowing or agreeing to borrow funds to meet the drawdown requirement in respect thereof and the certificate of the relevant Lender or Participant shall, absent manifest error, be conclusive and binding on the Borrowers as to the extent of any such losses.
This Drawdown Notice is effective upon receipt by you and shall be irrevocable.
OVERSEAS SHIPHOLDING GROUP, INC. |
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By__________________________________ |
Name: |
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By__________________________________ |
Name: |
OSG INTERNATIONAL, INC. |
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By__________________________________ |
Name: |
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EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
from
OVERSEAS SHIPHOLDING GROUP, INC.,
as Guarantor
to
DnB NOR BANK ASA,
acting through its New York branch,
as Administrative Agent
__________________, ____
FORM OF COMPLIANCE CERTIFICATE
CERTIFICATE OF THE CHIEF FINANCIAL OFFICER
OF
OVERSEAS SHIPHOLDING GROUP, INC.
FOR THE PERIOD ENDED ______________
Reference is made to that certain Credit Agreement, dated as of January __, 2005 (as amended from time to time, the "Credit Agreement"), among (i) OVERSEAS SHIPHOLDING GROUP, INC. ("OSG"), OSG BULK SHIPS, INC. ("OSG Bulk") and OSG INTERNATIONAL, INC. (collectively with OSG and OSG Bulk, the "Borrowers"), (ii) the banks and financial institutions which are parties to the Credit Agreement (the "Lenders") and (iii) DnB NOR Bank ASA, acting through its New York branch, as administrative agent (the "Administrative Agent"). Capitalized terms used herein without definition have the meanings ascribed thereto in the Credit Agreement. The undersigned, being the chief financial officer of OSG hereby certifies, on behalf of each of the Borrowers, to the Administrative Agent and the Lenders as follows:
(i) I have reviewed the [audited] consolidated balance sheet of OSG and the Subsidiaries dated as of ________________ and the related [audited] consolidated statements of operations and retained earnings and cash flows for the ________ period then ended and such financial statements fairly present the financial condition of OSG and the Subsidiaries as of the dates indicated and the results of their operations and cash flows for the periods indicated; and
(ii) I have reviewed the terms of the Credit Agreement and have made, or caused to be made under my supervision, a review in reasonable detail of the transactions and the condition of OSG and the Subsidiaries during the accounting period covered by the financial statements referred to in clause (i) above; and
(iii) such review has not disclosed the existence during or at the end of such accounting period of any condition or event that constitutes a Default or an Event of Default, nor do I have knowledge of the existence of any such condition or event as at the date of this Certificate [EXCEPT, [IF SUCH CONDITION OR EVENT EXISTED OR EXISTS, DESCRIBE THE NATURE AND PERIOD OF EXISTENCE THEREOF AND WHAT ACTION OSG OR ANY SUBSIDIARY, AS THE CASE MAY BE, HAS TAKEN, IS TAKING AND PROPOSES TO TAKE WITH RESPECT THERETO]]; and
(iv) the Borrowers are in compliance with the covenants contained in Section 8 of the Credit Agreement, including, without limitation the covenants set forth in Sections 8.1(B)(c) through 8.1(d), 8.2(a), (c) and (g), and Annex A attached hereto shows the calculation thereof in sufficient detail as to permit the verification thereof by the Administrative Agent.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of this _____ day of ______________.
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OVERSEAS SHIPHOLDING GROUP, INC. |
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By:__________________________________ |
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Name: |
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Title: |
ANNEX A
EXHIBIT E
Interest Notice
[Date]
DnB NOR BANK ASA
New York Branch
200 Park Avenue
New York, New York 10017
Attention: Nikolai Nachamkin
Ladies and Gentlemen:
Please be advised that, in accordance with the Credit Agreement dated as of January __, 2005, between, (i) Overseas Shipholding Group, Inc. ("OSG"), OSG Bulk Ships, Inc. and OSG International, Inc., as borrowers (the "Borrowers"), (ii) the banks and financial institutions listed on Schedule I thereto, as lenders, and (iii) yourselves, as administrative agent and lender (the "Credit Agreement"), the undersigned hereby notify you of OSG's current rating level, and that the duration and Applicable Margin in respect of the Interest Period to commence [insert date of commencement of next Interest Period] shall be as follows:
Interest Period: |
[seven day][one, three, six or twelve month(s)] |
The undersigned hereby represents and warrants that (a) the representations and warranties stated in Section 7 of the Credit Agreement (updated mutatis mutandis) are true and correct on the date hereof and will be true and correct on the Drawdown Date specified above as if made on such date, and (b) no Event of Default has occurred and is continuing or will have occurred and be continuing on the Drawdown Date, and no event has occurred or is continuing which, with the giving of notice or lapse of time, or both, would constitute an Event of Default.
Very truly yours, |
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By__________________________________ |
Name: |
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OSG BULK SHIPS, INC. |
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By__________________________________ |
Name: |
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OSG INTERNATIONAL, INC. |
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By__________________________________ |
Name: |