EX-10 3 rcf.txt 10.21 Exhibit 10.21 ================================================================================ AGREEMENT FOR A U.S. $200,000,000 REVOLVING CREDIT FACILITY TO BE MADE AVAILABLE TO SEACOR SMIT INC. BY DEN NORSKE BANK ASA, as Administrative Agent, Joint Lead Arranger and Lender, FLEET NATIONAL BANK, as Syndication Agent, Joint Lead Arranger and Lender, NORDEA, as Documentation Agent, Joint Lead Arranger and Lender, THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, as Co-Agent and Lender AND THE FINANCIAL INSTITUTIONS IDENTIFIED ON SCHEDULE A, as Lenders ================================================================================ February 5, 2002
INDEX SECTION 1. DEFINITIONS................................................................................1 ----------- 1.1. Defined Terms..............................................................................1 1.2. Computation of Time Periods; Other Definitional Provisions................................14 1.3. Accounting Terms..........................................................................14 1.4. Certain Matters Regarding Materiality.....................................................14 1.5. Forms of Documents........................................................................14 1.6. Headings..................................................................................14 SECTION 2. REPRESENTATIONS AND WARRANTIES............................................................15 ------------------------------ 2.1. ..........................................................................................15 (a) Due Organization and Power................................................................15 (b) Authorization and Consents................................................................15 (c) Binding Obligations.......................................................................15 (d) No Violation..............................................................................15 (e) Litigation................................................................................15 (f) No Default................................................................................15 (g) Vessel Ownership, Classification, and Insurance...........................................16 (h) Citizenship...............................................................................16 (i) Financial Statements......................................................................16 (j) Tax Returns and Payments..................................................................16 (k) Insurance.................................................................................17 (l) Solvency..................................................................................17 (m) Environmental Matters.....................................................................17 (n) Liens.....................................................................................18 (o) ERISA.....................................................................................18 (p) Foreign Trade Control Regulations.........................................................18 SECTION 3. ADVANCES OF THE FACILITY/LETTERS OF CREDIT................................................18 ------------------------------------------ 3.1. Advances..................................................................................18 3.2. Use of Proceeds...........................................................................19 3.3. Drawdown Notice...........................................................................19 3.4. Drawdown Notice a Warranty................................................................19 3.5. Notation of Advance on Note...............................................................20 3.6. Foreign Currency Advances.................................................................20 3.7. Letters of Credit.........................................................................20 3.8. Request for Issuance of Letter of Credit..................................................21 3.9. Letter of Credit Payments Deemed Advances.................................................21 i 3.10. Letter of Credit Participation............................................................22 SECTION 4. CONDITIONS................................................................................24 ---------- 4.1. Conditions Precedent to Drawdown of the Initial Advance under the Credit Facility.........24 4.2. Further Conditions Precedent..............................................................25 4.3. Break Funding Costs.......................................................................26 4.4. Satisfaction after Drawdown...............................................................26 SECTION 5. REPAYMENT, PREPAYMENT AND REDUCTION.......................................................26 ----------------------------------- 5.1. Repayment.................................................................................26 5.2. Prepayment................................................................................26 5.3. Permanent Reduction of the Committed Amount of the Credit Facility........................27 5.4. Reduction of Commitment...................................................................27 SECTION 6. INTEREST AND RATE.........................................................................27 ----------------- 6.1. Applicable Rate...........................................................................27 6.2. The Applicable Margin.....................................................................27 6.3. LIBOR; Interest Periods...................................................................28 6.4. Interest Payments.........................................................................28 6.5. Interest Due Only on Banking Day..........................................................29 6.6. Calculation of Interest...................................................................29 SECTION 7. PAYMENTS..................................................................................29 -------- 7.1. Place of Payments, No Set Off.............................................................29 7.2. Proof of no Withholding...................................................................29 7.3. Federal Income Tax Credits................................................................30 SECTION 8. ACCOUNTS..................................................................................30 -------- 8.1. The Operating Accounts....................................................................30 SECTION 9. EVENTS OF DEFAULT.........................................................................30 ----------------- 9.1. ..........................................................................................30 (a) Principal and Interest Payments...........................................................30 (b) Other Payments............................................................................30 (c) Representations, etc......................................................................30 (d) Impossibility, Illegality.................................................................31 (e) Citizenship...............................................................................31 (f) Covenants.................................................................................31 (g) Other Covenants...........................................................................31 ii (h) Indebtedness..............................................................................31 (i) Bankruptcy................................................................................31 (j) Judgments.................................................................................32 (k) Inability to Pay Debts....................................................................32 (l) Change of Control of the Borrower.........................................................32 9.2. Indemnification...........................................................................33 9.3. Application of Moneys.....................................................................33 SECTION 10. COVENANTS.................................................................................34 --------- 10.1. ..........................................................................................34 (a) ..........................................................................................34 (i) Performance of Agreements............................................................34 (ii) Compliance with Covenants............................................................34 (iii) Notice of Default....................................................................34 (iv) Obtain Consents......................................................................34 (v) Financial Statements.................................................................34 (vi) Qualification to Own U.S. Flag Vessels...............................................35 (vii) Corporate Existence..................................................................35 (viii) Books, Records, etc..................................................................36 (ix) Inspection...........................................................................36 (x) Taxes................................................................................36 (xi) Compliance with Statutes, etc........................................................36 (xii) Environmental Matters................................................................36 (xiii) Evidence of Insurance................................................................37 (xiv) Maintenance of Assets................................................................37 (xv) Funded Debt/Total Capitalization.....................................................37 (xvi) Secured Debt/Total Capitalization....................................................37 (xvii) Interest Coverage Ratio..............................................................37 (xviii) Consolidated Net Worth...............................................................37 (xix) ERISA Matters........................................................................37 (xx) Notice of Change in Credit Rating....................................................37 (xxi) End of Fiscal Year...................................................................38 (b) ..........................................................................................38 (i) Liens................................................................................38 (ii) Sale of Assets.......................................................................39 (iii) Dividends............................................................................39 (iv) Limitations on Ability to Make Distributions.........................................39 (v) Changes in Business..................................................................39 (vi) Consolidation, Merger................................................................40 (vii) Use of Proceeds......................................................................40 (viii) Redemption/Repurchase of Securities..................................................40 (ix) No Money Laundering..................................................................40 (x) Limitation on Investments in Joint Ventures..........................................40 iii (xi) Limitation on Indebtedness...........................................................40 (xiii) Negative Pledge......................................................................41 SECTION 11. ASSIGNMENT AND PARTICIPATIONS.............................................................42 ----------------------------- SECTION 12. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC.........................................42 ------------------------------------------------- 12.1. Illegality................................................................................42 12.2. Increased Cost............................................................................43 12.3. Replacement of Lender or Participant......................................................44 12.4. Non-availability of Funds.................................................................45 12.5. Determination of Losses...................................................................45 12.6. Compensation for Losses...................................................................45 SECTION 13. CURRENCY INDEMNITY........................................................................45 ------------------ 13.1. Currency Conversion.......................................................................45 13.2. Change in Exchange Rate...................................................................45 13.3. Additional Debt Due.......................................................................46 13.4. Rate of Exchange..........................................................................46 SECTION 14. FEES AND EXPENSES.........................................................................46 ----------------- 14.1. Commitment Fee............................................................................46 14.2. Letter of Credit and Facing Fees and Related Charges......................................47 14.3. Administrative Fee........................................................................47 14.4. Agents' Other Fees........................................................................47 14.5. Costs, Charges and Expenses...............................................................47 14.6. Indemnification...........................................................................48 SECTION 15. APPLICABLE LAW, JURISDICTION AND WAIVER...................................................48 --------------------------------------- 15.1. Applicable Law............................................................................48 15.2. Jurisdiction..............................................................................48 15.3. Waiver of Jury Trial......................................................................49 SECTION 16. THE AGENTS................................................................................49 ---------- 16.1. Appointment of Agents.....................................................................49 16.2. Distribution of Payments..................................................................49 16.3. Holder of Interest in Notes...............................................................49 16.4. No Duty to Examine, Etc...................................................................49 16.5. Agents as Lenders.........................................................................49 16.6. ..........................................................................................50 (a) Obligations of Agents.....................................................................50 iv (b) No Duty to Investigate....................................................................50 (c) Reports and Notices.......................................................................50 16.7. ..........................................................................................50 (a) Discretion of Agents......................................................................50 (b) Instructions of Majority Lenders..........................................................50 16.8. Assumption re Event of Default............................................................50 16.9. No Liability of Agents and the Lenders....................................................50 16.10. Indemnification of Agents.................................................................51 16.11. Consultation with Counsel.................................................................51 16.12. Resignation...............................................................................51 16.13. Representations of Lenders................................................................51 16.14. Notification of Event of Default..........................................................52 SECTION 17. NOTICES AND DEMANDS.......................................................................52 ------------------- 17.1. Notices in Writing........................................................................52 17.2. Addresses for Notice......................................................................52 17.3. Notices Deemed Received...................................................................52 SECTION 18. MISCELLANEOUS.............................................................................53 ------------- 18.1. Time of Essence...........................................................................53 18.2. Unenforceable, etc.; Provisions - Effect..................................................53 18.3. References................................................................................53 18.4. Further Assurances........................................................................53 18.5. Entire Agreement; Amendments..............................................................53 18.6. Adjustments...............................................................................54
v SCHEDULES --------- A THE LENDERS AND THEIR COMMITMENTS B THE VESSEL OWNING/OPERATING SUBSIDIARIES AND OTHER SUBSIDIARIES C THE VESSELS D EXISTING LIENS E EXISTING INDEBTEDNESS F EXISTING LETTERS OF CREDIT EXHIBITS -------- 1 NOTE 2 ADMINISTRATIVE QUESTIONNAIRE 3 FORM OF DRAWDOWN NOTICE 4 FORM OF LETTER OF CREDIT REQUEST 5 FORM OF COMPLIANCE CERTIFICATE 6 FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT vi REVOLVING CREDIT FACILITY AGREEMENT THIS REVOLVING CREDIT FACILITY AGREEMENT is made this 5th day of February, 2002, and is by and among (1) SEACOR SMIT INC., a corporation incorporated under the laws of the State of Delaware with offices at 11200 Richmond Avenue, Houston, Texas (hereinafter called the "Borrower"), (2) the banks and financial institutions whose names and addresses are set out in Schedule A hereto (together with any assignee pursuant to Section 11, collectively, the "Lenders", each a "Lender"), (3) FLEET NATIONAL BANK, a national banking association, as syndication agent (the "Syndication Agent"), (4) DEN NORSKE BANK ASA, a bank incorporated under the laws of the Kingdom of Norway, acting through its New York branch, with offices at 200 Park Avenue, New York, New York, as administrative agent ( the "Administrative Agent"), (5) NORDEA, a Finnish banking corporation, acting through Nordea Bank Finland Plc, New York Branch, as documentation agent (the "Documentation Agent"), and (6) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND, a bank incorporated under the laws of Scotland, as Co-Agent (the "Co-Agent" and together with the Syndication Agent, the Administrative Agent and the Documentation Agent, the "Agents"). WITNESSETH THAT: Whereas, at the request of the Borrower, each of the Agents has agreed to act in its respective capacity as set forth herein and the Lenders have agreed to provide to the Borrower a revolving credit facility in the amount of $200,000,000 on the terms and subject to the conditions set forth herein; NOW, THEREFORE, in consideration of the premises, the covenants and agreements hereinafter set forth, and other good and valuable consideration, the receipt and adequacy whereof are hereby acknowledged, the parties hereto agree as set forth below: SECTION 1. DEFINITIONS ----------- 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: "Acceptable Accounting Firm" means Arthur Anderson & Co., L.L.P. or any other ---------------------------- firm of independent certified public or chartered accountants of international reputation selected by the Borrower and acceptable to the Administrative Agent; "Acquisition Subsidiary" shall mean a direct or indirect Subsidiary of ------------------------ the Borrower formed for the purpose of acquiring New Subsidiaries which Subsidiary shall not be an existing Vessel Owning/Operating Subsidiary at the time of the acquisition of the relevant New Subsidiaries and into which only those assets necessary to consummate the relevant acquisition shall be transferred; "Administrative Agent" shall have the meaning ascribed thereto in the ---------------------- preamble; "Administrative Questionnaire" shall mean, with respect to each Bank, an ------------------------------ administrative questionnaire substantially in the form of Exhibit 2 hereto, submitted to the Administrative Agent (with a copy to the Borrowers) duly completed by such Bank; "Advance" means any Dollar Advance or Foreign Currency ------- Advance; "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; "Agreement" means this revolving credit facility agreement ----------- as the same may be amended, restated, modified or supplemented from time to time; "Applicable Margin" shall have the meaning ascribed thereto in ----------------- Section 6.1; "Applicable Rate" means any rate of interest on any Advance from --------------- time to time applicable pursuant to Section 6.1; "Assignment and Assumption shall mean the Assignment and Assumption -------------------------- Agreement(s) executed pursuant to Section 11 Agreement(s)" substantially in the form of Exhibit 6; ------------- "Banking Day(s)" means day(s) on which banks are open for the ---------------- transaction of business of the nature required by this Agreement in the place or places from time to time specified; "Base Rate" means the higher of (i) the Letter of Credit ----------- Issuer's Prime Rate and (ii) one-half percent (1/2%) above the Federal Funds Effective Rate; "Basis Point" or the symbol means one one-hundredth of one percent (0.01%); --------------------------- "bp" ---- "Change of Control" means (a) any "person" (as such term is used in ----------------- Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), 2 directly or indirectly, of more than fifty percent (50%) of the total voting power of the Borrower or (b) the Board of Directors of the Borrower ceases to consist of a majority of the existing directors or directors elected by the existing directors; means the Internal Revenue Code of 1986, as amended, and any successor statute "Code" and the regulations promulgated thereunder; ---- "Committed Amount" means Two Hundred Million Dollars ------------------ ($200,000,000), as reduced from time to time pursuant to Section 5.3, being the maximum aggregate principal amount in Dollars of the Advances and Letters of Credit which may be outstanding at any time under the Credit Facility; "Commitment" shall mean in relation to a Lender, the amount ------------ of the Credit Facility set out opposite its name in Schedule A hereto or, as the case may be, in any relevant Assignment and Assumption Agreement, as the same may be reduced from time to time as provided by Section 5.4; "Compliance Certificate" means a certificate of the chief financial ------------------------ officer of the Borrower in the form set out in Exhibit 5 or in such other form as the Administrative Agent may reasonably require; "Consolidated Net Worth" for any period, shall mean, for any company, the ------------------------ sum of such company's common and preferred stock (excluding any capital stock subject to mandatory redemption) and additional paid-in-capital, plus retained earnings (minus accumulated deficit) and currency translation adjustments, all as shown on the consolidated balance sheet of such company and its subsidiaries as determined in accordance with GAAP; "Consolidated Subsidiary" shall mean a Subsidiary the financial results ----------------------- of which are reflected in the Borrower's consolidated financial statements; "Consolidated Subsidiary shall mean a guaranty issued by a Consolidated ------------------------ Subsidiary of obligations of the types listed Guaranty" in sub-clauses (i) through (iii) of the --------- definition of Subsidiary Funded Debt of other Consolidated Subsidiaries but excluding, in the case of a Consolidated Subsidiary which is not a Wholly-Owned Subsidiary, that proportion of the amount of such guaranty which represents the minority interest holders' share of such Guaranty; 3 "Co-Agent" shall have the meaning ascribed thereto in the -------- preamble; "Credit Facility" means the sums advanced or to be advanced by ----------------- the Lenders to the Borrower and the Letters of Credit to be issued by the Letter of Credit Issuer for the account of the Borrower in the maximum principal amount of $200,000,000, all pursuant to, and subject to the terms of, this Agreement; "Credit Facility Balance" means the sum of (i) the amount of the Dollar ------------------------- Advances, (ii) the amount of the then Dollar Equivalent of the Foreign Currency Advances and (iii) the amount of the Letter of Credit Outstandings at any relevant time, all as reduced by payments and increased by Advances and Letters of Credit pursuant to the terms of this Agreement; "Credit Period" means the period from the Drawdown Date of the --------------- initial Advance made hereunder to the date upon which the Advances and all other amounts due to the Agents and the Lenders pursuant to this Agreement and the Notes are repaid or prepaid in full and all commitments to extend credit under this Agreement have been terminated; "Creditors" shall mean, together, the Agents and the --------- Lenders, each, a "Creditor"; "CRN Group" means CRN Holdings, Inc., a corporation --------- organized under the laws of the State of Delaware, and any of its direct and indirect subsidiaries now or hereafter acquired; "Default Rate" shall have the meaning ascribed thereto in ------------ Section 6.1; "Documentation Agent" shall have the meaning ascribed thereto in the ------------------- preamble; "Dollars" and the sign "$" means 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); 4 "Dollar Advance" means any amount advanced in Dollars to the ---------------- Borrower on any Drawdown Date; "Dollar Equivalent" means any amount of a foreign currency ------------------- converted to Dollars at the Exchange Rate; "Drawdown Dates" means the dates, each being a Banking Day ---------------- falling prior to the Termination Date, upon which the Borrower has requested that an Advance be made available to the Borrower or an Advance is deemed to have been made due to a drawing under any Letter of Credit; "Drawdown Notice" shall have the meaning ascribed thereto in --------------- Section 3.3; "EBITDA" means on a consolidated basis, the aggregate, ------ to be measured on a trailing twelve (12) month basis, of (i) operating income (before deductions for interest, taxes, depreciation and amortization), (ii) interest income and (iii) "Equity in Net Earnings of Fifty Percent (50%) or Less Owned Companies" (as such term is used in the Borrower's published financial reports). "Environmental Affiliate" means any person or entity the liability of ------------------------- which for Environmental Claims the Borrower may have assumed by contract or operation of law; "Environmental Claim" shall have the meaning ascribed thereto in --------------------- Section 2.1(m); "ERISA" means the Employment Retirement Income Security ------- Act of 1974, as amended; "ERISA Affiliate" means a trade or business (whether or not ----------------- incorporated) which is under common control with the Borrower within the meaning of Sections 414(b),(c),(m) or (o) of the Code; "Euros" and the symbol means the legal currency, at any relevant time ---------------------- hereunder, of the member countries of the "(euro)" European Union who have adopted the Euro as -------- legal tender; "Events of Default" means any of the events set out in Section 9.1; ------------------- "Exchange Act" shall mean the Securities and Exchange Act of -------------- 1934, as amended; "Exchange Rate" means the exchange rate offered by the --------------- Administrative Agent or Letter of Credit Issuer, as the case may be, of Dollars for a particular foreign currency or vice versa in 5 accordance with its normal practices on the relevant date, in either case, including any costs associated with the relevant exchange contract or, if it does not then offer such exchange rates in respect of such foreign currency, such exchange rate in respect of such currency as the Administrative Agent or the Letter of Credit Issuer, as the case may be, deems reasonable; "Existing Credit Facility" the credit facility provided under that certain -------------------------- credit agreement, dated November 17, 1998 as amended by Amendment No. 1 and Amendment No. 2 thereto dated February 4, 1999 and October 1, 1999, respectively, among the Borrower, the financial institutions named therein as Lenders, and Den norske Bank ASA as Agent ; "Existing Letters of Credit" shall have the meaning ascribed thereto in -------------------------- Section 3.7; "Extended Letters of Credit" shall have the meaning ascribed thereto in -------------------------- Section 3.7; "Facing Fee" shall have the meaning ascribed thereto in ---------- Section 14.2; "Federal Funds Effective means, for any period, a fluctuating interest ------------------------ rate equal for each day during such period to Rate" the weighted average of the rates on overnight ----- Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Banking Day, for the next preceding Banking Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Banking Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three (3) Federal Funds brokers of recognized standing selected by the Administrative Agent; "Foreign Currency" means any of Pounds Sterling, Euros, Singapore ---------------- Dollars or any other currency which shall be freely convertible into U.S. Dollars; "Foreign Currency Advance" means an Advance denominated in a Foreign ------------------------ Currency; "Funded Debt" shall mean, on a consolidated basis, the sum of ----------- (i) indebtedness for borrowed money, all obligations evidenced by bonds, debentures, notes or similar instruments, and purchase money obligations which, in accordance with GAAP, would be shown on the consolidated balance sheet as a liability, (ii) all obligations arising under letters of credit, 6 (iii) all obligations as lessee under leases which have been, in accordance with GAAP, recorded as capitalized lease obligations, (iv) guaranties of non-consolidated entity obligations but excluding (v) indebtedness which is consolidated in the Borrower's published financial statements in accordance with GAAP but which represents a minority interest holders' share of such indebtedness unless such minority holders' share has been guaranteed by the Borrower or a Subsidiary; "GAAP" shall have the meaning ascribed thereto in ---- Section 1.3; "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; "Interest Coverage Ratio" means, on a consolidated basis, (a) EBITDA ----------------------- divided by (b) interest payments (including interest attributable to capitalized leases) made during the four (4) fiscal quarters preceding the date on which such ratio is determined; "Interest Notice" means a notice to the Administrative Agent --------------- specifying the duration of the relevant Interest Period; "Interest Period(s)" means period(s) of one (1), two (2), three (3), -------------------- six (6), nine (9) or twelve (12) months selected by the Borrower or such longer period(s) as the Lenders may agree; "Investment" means (i) lending money or credit or making ------------ advances to any Person, (ii) purchasing or acquiring any stock, obligations or securities of, or any other interest in, or making capital contributions to any Person or (iii) guaranteeing the debt or obligations of any other Person; "Investment Grade Rating" means with respect to Moody's a rating of ------------------------- "Baa3" or better, and with respect to S&P a rating of "BBB-" or better; "Issuing Subsidiary" shall mean, the Subsidiary which is the primary ------------------ obligor on Subsidiary Funded Debt; provided that in the case of Subsidiary Funded Debt where (i) one or more other Subsidiaries are jointly or jointly and severally liable in respect thereof (other than by way of guaranty) or (ii) no Subsidiary is the primary obligor in respect of a Subsidiary Funded Debt but two or more Subsidiaries have issued Non-Consolidated 7 Entity Guaranties in respect of the same obligation, the Subsidiary liable in respect thereof with the highest book value shall be deemed to be such primary obligor; "Joint Venture" shall mean at any date any Person (other than a --------------- Subsidiary) in which the Borrower or any Subsidiary has an ownership interest or other interests in profits or loss which would be accounted for in the consolidated financial statements of the Borrower and its consolidated Subsidiaries by the equity method if such statements were prepared as of such date; "L/C Supportable Obligation" means such obligations of the Borrower as are ---------------------------- not inconsistent with the issuance policies of the applicable Letter of Credit Issuer; "Letter of Credit" shall have the meaning ascribed thereto in ---------------- Section 3.7; "Letter of Credit Fee" shall have the meaning ascribed thereto in -------------------- Section 14.2; "Letter of Credit Issuer" means, with respect to each Letter of Credit, ------------------------- the Lender (being one of the Agents) which, at the request of the Borrower, issues the same; "Letter of Credit means, at any time, the aggregate Stated Amount ----------------- of all outstanding Letters of Credit, less any Outstandings" drawings previously made thereunder; ------------- "Letter of Credit shall have the meaning ascribed thereto in ----------------- Section 3.10; Participant" ------------ "Letter of Credit means, in relation to a Lender, the percentage ----------------- of the Credit Facility set out opposite its Participant Percentage" name in Schedule A hereto; provided, however, ----------------------- that in the case of Extended Letters of Credit, the percentage shall be adjusted to include only the Commitments of the Lenders participating in the Extended Letters of Credit; "Letter of Credit Request" shall have the meaning ascribed thereto in -------------------------- Section 3.8; "LIBOR" means the rate of interest for deposits, in ------- Dollars or the relevant Foreign Currency, as the case may be, of an amount equivalent to the relevant Advance (or portion thereof), for periods equivalent to the applicable Interest Period, which appear at or about 11:00 A.M. (London Time) on the day falling two (2) LIBOR Reference Days prior to the first day of the 8 relevant Interest Period as displayed on page LIBOR01 of the Reuters screen, in the case of Dollars, Pounds Sterling, or Euros, or page SGDF= of the Reuters screen, in the case of Singapore Dollars (or such other page as may replace such page), as the case may be, on such system or on any other system of the information vendor for the time being designated by the British Bankers' Association to calculate the BBA Interest Settlement Rate (as defined in the British Bankers' Association's Recommended Terms and Conditions ("BBAIRS" terms) dated August 1985)), provided, however, that, if on any date of determination of the Applicable Rate, no rate is so displayed for amounts equivalent to the relevant Advance (or portion thereof) and for periods equivalent to the applicable Interest Period, 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 Foreign 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 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; "LIBOR Reference Date" days on which banks in the London interbank ---------------------- market generally will provide quotations for deposits in the relevant currencies; "Lien" shall mean any interest in property securing an ---- obligation owed to, or a claim by, a Person other than the owner of the property, whether such interest is based on the common law, statute or contract, and including but not limited to the security interest 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 legal effect as the foregoing. "List of Liens" shall mean a list of Liens in respect of ------------- Secured Debt on Vessels; 9 "Majority Lenders" shall mean Lenders whose aggregate Commitments ---------------- exceed fifty percent (50%) of the total Commitments; "Material Adverse Change" shall mean the occurrence of an event or ----------------------- condition which (a) materially impairs the ability of (1) the Borrower to meet any of its obligations with regard to the Credit Facility and the financing arrangements established in connection therewith or (2) the Borrower and the Subsidiaries to meet any of their respective other obligations that are material to the Borrower and the Subsidiaries considered as a whole or (b) have a material adverse effect on the business, assets, operations, property or financial condition of the Borrower and the Subsidiaries considered as a whole; "Moody's" shall mean Moody's Investors Service, Inc., a ------- credit rating agency; "New Subsidiaries" shall mean a group of corporations or other ------------------ entities of which the Borrower or a Subsidiary acquires legally or beneficially greater than fifty percent (50%) of the issued and outstanding stock or other interest in each corporation or entity in the group and has more than fifty percent (50%) of the total voting power of the voting stock or other interest in such corporations or entities; "Non-Consolidated Entity" shall mean an entity which is not a ------------------------- Consolidated Subsidiary; "Non-Consolidated Entity shall mean a guaranty issued by a Consolidated ------------------------ Subsidiary of obligations of Non-Consolidated Guaranty" Entities of the types listed in sub-clauses (i) --------- through (iii) of the definition of Subsidiary Funded Debt but excluding, in the case of a Consolidated Subsidiary which is not a Wholly-Owned Subsidiary, that proportion of the amount of such Guaranty which represents the minority interest holders' share of such Guaranty; "Note" means a promissory note to be executed by the ------ Borrower in favor of a Lender to evidence the Advances of the Credit Facility made by such Lender substantially in the form of Exhibit 1 or in such other form as the Administrative Agent may agree; "Operating Accounts" shall have the meaning ascribed thereto in -------------------- Section 8.1; 10 "Other Subsidiaries" shall mean, as it relates to any Subsidiary -------------------- Funded Debt, those Subsidiaries liable in respect thereof other than the Issuing Subsidiary; "Permitted Liens" means any of the liens permitted under Section --------------- 10.1(b)(i); "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; "Plan" means any employee benefit plan covered by ------ Title IV of ERISA maintained or contributed by the Borrower or any Subsidiary or any ERISA Affiliate; "Pounds Sterling" and the means the legal currency, at any relevant time ------------------------- hereunder, of the United Kingdom; sign "(pound)" -------------- "Prime Rate" means the rate which the relevant Letter of ---------- time as its prime lending rate, the Prime Rate to change when and as such prime Credit Issuer announces from time to lending rate changes; "Reference Banks" means 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; "Regulation U" shall mean Regulation U of the Board of -------------- Governors of the Federal Reserve System, as in effect from time to time; "Regulation X" shall mean Regulation X of the Board of -------------- Governors of the Federal Reserve System, as in effect from time to time; "S&P" shall mean Standard & Poor's Rating Services, a --- credit rating agency; "Secured Debt" means, for the Borrower, on a consolidated ------------ basis, the aggregate of any Indebtedness secured or collateralized by a Lien; "Singapore Dollars and means the legal currency, at any relevant time ---------------------- hereunder, of Singapore; the symbol "SGD" ---------------- 11 "Stated Amount" means with respect to each Letter of Credit the --------------- maximum amount available to be drawn thereunder (regardless of whether any conditions for drawing could then be met); "Subsidiaries" means the corporations or other entities listed on Schedule B (including, without limitation, the Vessel Owning/Operating Subsidiaries) of which the Borrower owns legally or beneficially greater than fifty percent (50%) of the issued and outstanding stock or other interest in such entity and has more than fifty percent (50%) of the total voting power of the voting stock or other interest in such corporation or other entity, together with any other corporations or other entities now or hereafter in existence of which the Borrower owns legally or beneficially greater than fifty percent (50%) of the issued and outstanding stock or other interest in such entity and has more than fifty percent (50%) of the total voting power of the voting stock or other interest in such corporation or other entity; "Subsidiary Funded Debt" shall mean, as to each Subsidiary, the sum of ---------------------- (i) indebtedness for borrowed money, all obligations evidenced by bonds, debentures, notes or similar instruments, and purchase money obligations which, in accordance with GAAP, would be shown on the balance sheet of such Subsidiary as a liability if a balance sheet were actually prepared in accordance with GAAP for such Subsidiary, (ii) all obligations arising under letters of credit in respect of which such Subsidiary is liable, (iii) all obligations as lessee under leases which have been, in accordance with GAAP, recorded as capitalized lease obligations on the consolidated balance sheet of the Borrower and would so appear on such Subsidiary's balance sheet if a balance sheet were prepared in accordance with GAAP for such Subsidiary, (iv) Consolidated Subsidiary Guaranties and Non-Consolidated Entity Guaranties, in each case, up to the maximum amount guaranteed under the terms of any such guaranty but excluding (v) indebtedness which is consolidated in the Borrower's published financial statements in accordance with GAAP and would so appear on such Subsidiary's balance sheet if a balance sheet were prepared in accordance with GAAP for 12 such Subsidiary but which represents a minority interest holders' share of such indebtedness unless such minority holders' share has been guaranteed by such Subsidiary; "Syndication Agent" shall have the meaning ascribed thereto in the ----------------- preamble; "Taxes" means 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 the Lenders imposed by their respective jurisdiction of incorporation or domicile of the lending office making the Advances or issuing any Letter of Credit or any governmental subdivision or taxing authority of any thereof or by any other taxing authority having jurisdiction over any Agent or Lender (unless such jurisdiction is asserted solely by reason of the activities of the Borrower or any Subsidiary); "Termination Date" means the day falling five (5) years after the ------------------ date hereof or, if such day is not a Banking Day, the next following Banking Day, unless such next following Banking Day falls in the following month, in which case the Termination Date shall be the immediately preceding Banking Day; "Total Capitalization" for any company, means, on a consolidated -------------------- basis, the aggregate of Funded Debt and Consolidated Net Worth; "Underlying Subsidiary shall mean the outstanding principal amount of ---------------------- Subsidiary Funded Debt issued or incurred by an Funded Debt" Issuing Subsidiary; ------------ "Vessel Owning/Operating those Subsidiaries designated as Vessel ------------------------ Owning/Operating Subsidiaries on Schedule B, Subsidiaries" together with any future subsidiaries now or ------------- hereafter acquired which either own or operate Vessels, provided, however, that the CRN Group shall not be deemed to be Vessel Owning/Operating Subsidiary; "Vessels" means any vessels now or hereafter more than --------- fifty percent (50%) owned, directly or indirectly, by a Vessel Owning/Operating Subsidiary; "Wholly Owned Subsidiaries" means the Subsidiaries of which the Borrower --------------------------- owns legally or beneficially one hundred percent (100%) of the issued and outstanding 13 stock or other interest in such entity and has one hundred percent (100%) of the total voting power of the voting stock or other interest in such corporation or other entity. 1.2. Computation of Time Periods; Other Definitional Provisions. In this Credit Facility Agreement and the Notes, in the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding"; words importing either gender include the other gender; references to "writing" include printing, typing, lithography and other means of reproducing words in a tangible visible form; the words "including," "includes" and "include" shall be deemed to be followed by the words "without limitation"; references to articles, sections (or subdivisions of sections), exhibits, annexes or schedules are to this Credit Facility Agreement or the Notes, as applicable; references to agreements and other contractual instruments (including this Credit Facility Agreement and the Notes) shall be deemed to include all subsequent amendments, amendments and restatements, supplements, extensions, replacements and other modifications to such instruments (without, however, limiting any prohibition on any such amendments, extensions and other modifications by the terms of this Credit Facility Agreement or the Notes); references to any matter that is "approved" or requires "approval" of a party shall mean approval given in the sole and absolute discretion of such party unless otherwise specified. 1.3. Accounting Terms. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles as in effect from time to time in the United States of America consistently applied ("GAAP") and all financial statements submitted pursuant to this Agreement shall be prepared in accordance with, and all financial data submitted pursuant hereto shall be derived from financial statements prepared in accordance with, GAAP. 1.4. Certain Matters Regarding Materiality. To the extent that any representation, warranty, covenant or other undertaking of the Borrower in this Credit Facility Agreement is qualified by reference to those which are not reasonably expected to result in a "Material Adverse Effect" or language of similar implication, no inference shall be drawn therefrom that any Agent or Lender has knowledge or approves of any noncompliance by the Borrower with any governmental rule. 1.5. Forms of Documents. Except as otherwise expressly provided in this Credit Facility Agreement, references to documents or certificates "substantially in the form" of Exhibits to another document shall mean that such documents or certificates are duly completed in the form of the related Exhibits with substantive changes subject to the provisions of Section 18.5 of this Credit Facility Agreement. 1.6. Headings. In this Agreement, section headings are inserted for convenience of reference only and shall not be taken into account in the interpretation hereof. 14 SECTION 2. REPRESENTATIONS AND WARRANTIES ------------------------------ 2.1. In order to induce the Agents and the Lenders to enter into this Agreement and to make the Advances and to issue and/or participate in Letters of Credit as provided for herein, the Borrower hereby represents and warrants to the Agents and the Lenders (which representations and warranties shall survive the execution and delivery of this Agreement and the Notes and the making of the Advances and the issuance of Letters of Credit) that: (a) Due Organization and Power. The Borrower and each of the Subsidiaries are duly formed and are validly existing in good standing under the laws of their respective jurisdictions of incorporation, have duly qualified and are authorized to do business as a foreign corporation in each jurisdiction wherein the nature of the business transacted thereby makes such qualification necessary, have full power to carry on their respective businesses as now being conducted and, in the case of the Borrower, to enter into and perform the Borrower's obligations under each of this Agreement and the Notes and have complied with all statutory, regulatory and other requirements relative to such businesses and such agreements the noncompliance with which could reasonably be expected to give rise to a Material Adverse Change; (b) Authorization and Consents. All necessary corporate action has been taken to authorize, and all necessary consents and authorizations have been obtained and remain in full force and effect to permit, the Borrower to enter into and perform its obligations under each of this Agreement and the Notes and to permit the Borrower to borrow, service and repay the Advances and, as of the date of this Agreement, no further consents or authorizations are necessary for the service and repayment of the Advances or any part of any thereof; (c) Binding Obligations. Each of this Agreement and the Notes constitutes legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent that such enforcement may be limited by equitable principles, principles of public policy or applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors' rights; (d) No Violation. The execution and delivery of, and the performance of the provisions of, this Agreement and the Notes do not, and will not during the Credit Period, contravene any applicable law or regulation existing at the date hereof or any contractual restriction binding on the Borrower or its certificate of incorporation or by-laws; (e) Litigation. Except as otherwise disclosed in the 2000 annual report of the Borrower or the 10Q report of the Borrower for the period ending September 30, 2001, no action, suit or proceeding is pending or overtly threatened against the Borrower or any of the Subsidiaries before any court, board of arbitration or administrative agency which could result in any Material Adverse Change; (f) No Default. Except as otherwise disclosed in writing to the Administrative Agent on or prior to the date hereof, neither the Borrower nor any of the Subsidiaries are in default under any agreement by which any thereof is bound, nor are any thereof in default in respect of any financial 15 commitment or obligation, where such default could result in any Material Adverse Change; (g) Vessel Ownership, Classification, and Insurance. As of the date hereof: (i) each of the Vessels is owned as listed on Schedule C, free and clear of all liens of record except as otherwise set forth on Schedule D and duly registered in the name of its owner under the flag as listed on Schedule C; (ii) except as otherwise set forth on Schedule C, each of the Vessels is classed in the highest classification and rating for vessels of the same age and type with the American Bureau of Shipping, Lloyd's Register of Shipping, Det norske Veritas, Bureau Veritas, Germanischer Lloyd or other classification society acceptable to the Administrative Agent without any material outstanding recommendations; and (iii) each of the Vessels is insured in accordance with standard industry practice, including, without limitation, coverage for hull and machinery, war risk and protection & indemnity (evidence of which shall include, without limitation, cover notes, certificates of entry or such other evidence as shall be reasonably satisfactory to the Administrative Agent); (h) Citizenship. Each of the Vessel Owning/Operating Subsidiaries which owns a Vessel registered under the laws and flag of the United States of America is eligible to document a United States flag vessel within the meaning of 46 App. U.S.C.ss.12102(a) and, if any such Vessel is operating in the coastwise trade, within the meaning of Section 2 of the United States Shipping Act, 1916, as amended (46 App. U.S.C.ss. 802), the Vessel Owning/Operating Subsidiary owning or operating same is qualified to own and operate vessels in the coastwise trade; (i) Financial Statements. Except as otherwise disclosed in writing to the Lenders on or prior to the date hereof, all financial statements, information and other data furnished by the Borrower to the Lenders are complete and correct, and such financial statements have been prepared in accordance with GAAP and accurately and fairly present the financial condition of the parties covered thereby as of the respective dates thereof and the results of the operations thereof for the period or respective periods covered by such financial statements. Since such date or dates there has been no Material Adverse Change and neither the Borrower nor any of the Subsidiaries have any contingent obligations, liabilities for taxes or other outstanding financial obligations which on a consolidated basis are material in the aggregate, except as disclosed in such statements, information and data; (j) Tax Returns and Payments. The Borrower and each of the Subsidiaries have filed all tax returns required to be filed thereby and have paid all taxes payable thereby which have become due, other than those not yet delinquent or the non-payment of which would not give rise to a Material Adverse Change and except for those taxes being contested in good faith and by appropriate proceedings or other acts and for which adequate reserves have been set aside on the books thereof; 16 (k) Insurance. Each of the Borrower and the Subsidiaries have insured their respective properties, assets and businesses against such risks and in such amounts as are required by law and as are customary for comparable companies engaged in similar businesses; (l) Solvency. On the date of the making of the initial Advance and both immediately before and immediately after giving effect to all the transactions contemplated by this Agreement and the other documents referred to herein to occur on the date of the making of the initial Advance and as of the date hereof, (i) the sum of the Borrower's property (on a consolidated basis), at a fair valuation, does and will exceed its liabilities (on a consolidated basis), including contingent liabilities, (ii) the present fair salable value of the Borrower's assets (on a consolidated basis) is not and shall not be less than the amount that will be required to pay the Borrower's probable liability on its then existing debts (on a consolidated basis), including contingent liability, as they mature, (iii) the Borrower (on a consolidated basis) does not and will not have unreasonably small capital with which to continue its business, and (iv) the Borrower (on a consolidated basis) has not incurred, does not intend to incur and does not believe it will incur debts beyond its ability to pay such debts as they mature; (m) Environmental Matters. Except as heretofore disclosed in writing to the Lenders (i) the Borrower and each of the Subsidiaries are now and will continue to be, to the extent required, in compliance with all applicable United States federal and state, local, foreign and international laws, regulations, conventions and agreements relating to pollution prevention or protection of human health or the environment (including, without limitation, ambient air, surface water, ground water, navigable waters, waters of the contiguous zone, ocean waters and international waters), including, without limitation, laws, regulations, conventions and agreements relating to (1) emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous materials, oil, hazardous substances, petroleum and petroleum products and by-products ("Materials of Environmental Concern"), or (2) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern ("Environmental Laws") (except, as to all of the above, where the failure to do so would not be reasonably likely to result in a Material Adverse Change); (ii) the Borrower and each of the Subsidiaries now have and will continue to have, to the extent required, all permits, licenses, approvals, rulings, variances, exemptions, clearances, consents or other authorizations required under applicable Environmental Laws ("Environmental Approvals") and are now and will continue to be, to the extent required, in compliance with all Environmental Approvals required to operate their respective businesses as then being conducted (except where the failure to comply with, obtain or renew such permits, licenses, rulings, variances, exemptions, clearances, consents or other authorizations would not be reasonably likely to result in a Material Adverse Change); and (iii) neither the Borrower nor any of the Subsidiaries have received any notice of any claim, action, cause of action, investigation or demand by any Person, entity, enterprise or government, or any political subdivision, intergovernmental body or agency, department or instrumentality thereof, alleging potential liability which would reasonably be likely to result in a Material Adverse Change, or a requirement to incur, any investigatory costs, cleanup costs, response and/or remedial costs (whether incurred by a governmental entity or otherwise), natural resources, property and/or personal injury damages, attorneys' fees and expenses, or fines or 17 penalties, in each case arising out of, based on or resulting from (1) the presence, or release or threat of release into the environment, of any Materials of Environmental Concern at any location, whether or not owned by the Borrower or any of the Subsidiaries, or (2) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law or Environmental Approval ("Environmental Claim") (other than Environmental Claims that have been fully and finally adjudicated or otherwise determined and all fines, penalties and other costs, if any, payable by the Borrower or any of the Subsidiaries in respect thereof have been paid in full or which are fully covered by insurance (including permitted deductibles)), if such costs, damages, fees, expenses, fines and/or penalties on a consolidated basis are material in the aggregate; (n) Liens. Other than as disclosed on Schedule D, there are no Liens in respect of Secured Debt on any property owned by the Borrower or any Subsidiary of the Borrower; (o) ERISA. The execution and delivery of this Credit Facility Agreement and the consummation of the transactions hereunder will not involve any prohibited transaction within the meaning of ERISA or Section 4975 of the Code and no condition exists or event or transaction has occurred in connection with any Plan resulting from the failure to comply with ERISA which is reasonably likely to result in the Borrower or any Subsidiary or any ERISA Affiliate incurring any liability, fine or penalty which individually or in the aggregate would have a material adverse effect. Prior to the date hereof, the Borrower has delivered to the Administrative Agent a list of all the employee benefit plans to which the Borrower or any Subsidiary or any ERISA Affiliate is a "party in interest" (within the meaning of Section 3(14) of ERISA) or a "disqualified person" (within the meaning of Section 4975(e)(2) of the Code); and (p) Foreign Trade Control Regulations. None of the transactions contemplated herein will violate any of the provisions of the Foreign Assets Control Regulations of the United States of America (Title 31, Code of Federal Regulations, Chapter V, Part 500, as amended), any of the provisions of the Cuban Assets Control Regulations of the United States of America (Title 31, Code of Federal Regulations, Chapter V, Part 515, as amended), any of the provisions of the Libyan Sanctions Regulations of the United States of America (Title 31, Code of Federal Regulations, Chapter V, Part 550, as amended), any of the provisions of the Iranian Transactions Regulations of the United States of America (Title 31, Code of Federal Regulations, Chapter V, Part 560, as amended), any of the provisions of the Iraqi Sanctions Regulations (Title 31, Code of Federal Regulations, Chapter V, Part 575, as amended), any of the provisions of the Federal Republic of Yugoslavia (Serbia and Montenegro) Sanctions Regulations (Title 31, Code of Federal Regulations, Chapter V, Part 585 as amended) or any of the provisions of the Regulations of the United States of America Governing Transactions in Foreign Shipping of Merchandise (Title 31, Code of Federal Regulations, Chapter V, Part 505, as amended). SECTION 3. ADVANCES OF THE FACILITY/LETTERS OF CREDIT ------------------------------------------ 3.1. Advances. Each of the Lenders, relying upon each of the representations and warranties set out in Section 2, hereby agrees with the Borrower that, subject to the terms of this Agreement, it will on the Drawdown Dates make its portion of each Advance (pro rata in proportion to its 18 Commitment) in Dollars or a Foreign Currency, as requested by the Borrower, available through the Administrative Agent to the Borrower in an aggregate amount not to exceed at any one time outstanding the then available Committed Amount, provided, however, that no further Advances shall be made one month prior to the Termination Date. The Initial Advance shall be in an amount (in an integral multiple of One Million Dollars ($1,000,000)) equal to or exceeding Five Million Dollars ($5,000,000) and each subsequent Dollar Advance shall be in an amount (in an integral multiple of One Million Dollars ($1,000,000)) equal to or exceeding One Million Dollars ($1,000,000). Each Foreign Currency Advance shall be in an amount (in an integral multiple of one hundred (100) units of account of the relevant currency) equal to or exceeding the then Dollar Equivalent of One Million Dollars (US$1,000,000). Each Advance may only be denominated in a single currency. Each Advance shall be repaid in full, as more fully set forth hereinafter, not later than the Termination Date. Not more than fifteen (15) Advances may be made in each consecutive twelve (12) month period. Within the limits of this Section 3.1 and upon the conditions herein provided, the Borrower may from time to time borrow pursuant to this Section 3.1, repay Advances pursuant to Section 5 and reborrow pursuant to this Section 3.1. The obligation of each Lender to advance its respective portion of any Advance shall be several and not joint with the other Lenders. With respect to each Advance, no Lender shall be obliged to advance to the Borrower (a) with respect to each Advance, an amount in excess of such Lender's pro rata share of such Advance and, (b) in the aggregate Credit Facility Balance outstanding at any time, an amount in excess of its Commitment. 3.2. Use of Proceeds. The proceeds of the Advances shall be utilized for general corporate purposes of the Borrower. 3.3. Drawdown Notice. The Borrower shall not less than three (3) Banking Days before each Drawdown Date (other than a Drawdown Date occurring by reason of a drawing under any Letter of Credit) serve a notice (a "Drawdown Notice") on the Administrative Agent (which shall promptly furnish a copy to each Lender), substantially in the form set out in Exhibit 3, which notice shall (a) be in writing addressed to the Administrative Agent, (b) be effective on receipt by the Administrative Agent, provided it is received before 11 a.m. New York time (otherwise it shall be deemed to have been received on the next Banking Day), (c) specify the currency, amount and purpose of the Advance to be drawn, (d) specify the Banking Day on which the Advance is to be drawn and the initial Interest Period, (e) specify the disbursement instructions and (f) be irrevocable. 3.4. Drawdown Notice a Warranty. Each Drawdown Notice shall be deemed to constitute a warranty by the Borrower (a) that the representations and warranties stated in Section 2 (updated mutatis mutandis) are true and correct on the date of such Drawdown Notice and will be true and correct on the Drawdown Date as if made on such date, (b) that after giving effect to the borrowing made pursuant to such Drawdown Notice, the Credit Facility Balance shall not exceed the Committed Amount then available hereunder pursuant to Section 3.1 and (c) that no Event of Default nor any event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default has occurred and is continuing. 19 3.5. Notation of Advance on Note. Each Advance, or pro rata portion thereof, made by a Lender to the Borrower may be evidenced by a notation of the same made by such Lender on the grid attached to such Lender's Note, which notation, absent manifest error, shall be prima facie evidence of the amount of the relevant Advance. 3.6. Foreign Currency Advances. The Dollar Equivalent (calculated at the applicable Exchange Rate from time to time prevailing) of the aggregate principal amount of Foreign Currency Advances at any time outstanding under the Credit Facility (together with the Dollar Equivalent of the aggregate Stated Amount of Letters of Credit then outstanding and denominated in currencies other than Dollars) shall not exceed fifty percent (50%) of the then available Committed Amount. To the extent provisions of this Agreement require the calculation of amounts advanced or available under the Credit Facility in Dollars, any such amounts (if denominated in a currency other than Dollars) which are subject to such calculation shall, for purposes of such calculations, be notionally converted to Dollars at the relevant Exchange Rate then prevailing. The calculation of such currency conversion shall be certified by the Administrative Agent or the Letter of Credit Issuer, as the case may be, which certification, absent any manifest error, shall be conclusive and binding on the Borrower and the Lenders. If exchange rate fluctuations (a) cause the Credit Facility Balance to exceed the Committed Amount at any time or (b) cause the Foreign Currency Advances (together with the Dollar Equivalent of the aggregate Stated Amount of Letters of Credit then outstanding and denominated in currencies other than Dollars) to exceed fifty percent (50%) of the then available Committed Amount at any time, then the Borrower shall, within seven (7) days of written demand of the Administrative Agent, repay Advances in an amount equal to the excess of the Credit Facility Balance over the Committed Amount or repay Foreign Currency Advances (together with the Dollar Equivalent of the aggregate Stated Amount of Letters of Credit then outstanding and denominated in currencies other than Dollars) in an amount sufficient to reduce Foreign Currency Advances to not more than fifty percent (50%) of the then available Committed Amount, as the case may be. 3.7. Letters of Credit. (a) Subject to and upon the terms and conditions herein set forth, the Borrower may request that a Letter of Credit Issuer at any time and from time to time prior to the Banking Day immediately preceding the Termination Date issue, for the account of the Borrower and in support of L/C Supportable Obligations, and subject to and upon the terms and conditions herein set forth, such Letter of Credit Issuer agrees to issue from time to time, irrevocable standby letters of credit denominated in Dollars (or in such other currency as the Borrower and the Letter of Credit Issuer may agree) and in such form as may be approved by the Letter of Credit Issuer (singly, a "Letter of Credit" and collectively, the "Letters of Credit"). Schedule F contains a description of all letters of credit issued for the account of the Borrower pursuant to the Existing Credit Agreement which will remain outstanding on the date hereof. Each such letter of credit, including any extension thereof (each an "Existing Letter of Credit"), shall constitute a "Letter of Credit", for all purposes of this Agreement and shall be deemed issued for the purposes of Sections 3.10 and 14.2 on the date hereof. (b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued, the Stated Amount of which, (x) when added to the Letter of Credit Outstandings at such time, would exceed fifty percent (50%) of the 20 Committed Amount at such time or (y) when added to the Letter of Credit Outstandings at such time plus the aggregate principal amount of all Advances made by Lenders then outstanding would exceed the Committed Amount at such time; and (ii) each Letter of Credit shall have an expiry date occurring not later than the earlier of (x) the date which occurs thirty (30) months after the date of issuance thereof and (y) the Banking Day immediately preceding the Termination Date; provided that the Borrower may request, and the Letter of Credit Issuer, the Administrative Agent and the Lenders may consent, in their respective absolute discretion, to extend the expiry dates of certain Letters of Credit beyond the Termination Date (singly, an "Extended Letter of Credit" and collectively, the "Extended Letters of Credit"). Should one or more Lenders not consent to the requested extension, the Borrower may request and the Letter of Credit Issuer, the Administrative Agent and the remaining Lenders may agree to provide such Extended Letter of Credit. For purposes of determining compliance with limitations set forth in this Agreement, the Dollar Equivalent of the Stated Amount of any Letter Credit denominated in a currency other than Dollars shall be converted at the Issuer's Exchange Rate in effect at the time of determination. 3.8. Request for Issuance of Letter of Credit. (a) Whenever the Borrower wishes that a Letter of Credit be issued, the Borrower shall give the applicable Letter of Credit Issuer written notice (a "Letter of Credit Request"), copied to the Administrative Agent, substantially in the form of Exhibit 4 prior to 11:00 a.m., New York time, at least three (3) Banking Days prior to the proposed date of issuance (which shall be a Banking Day), which Letter of Credit Request shall include any documents that the Letter of Credit Issuer may reasonably require in connection therewith. The Letter of Credit Request shall be irrevocable. The Letter of Credit Issuer shall promptly notify each Lender of each Letter of Credit Request. (b) The Letter of Credit Issuer shall, on the date of each issuance of a Letter of Credit by it, give each Lender and the Borrower written notice of the issuance of such Letter of Credit. 3.9. Letter of Credit Payments Deemed Advances. (a) The Borrower hereby agrees that any payment or disbursement made by a Letter of Credit Issuer under any Letter of Credit shall be deemed an Advance in Dollars (amounts paid or disbursed in currencies other than Dollars or Foreign Currencies shall be converted to Dollars at the Exchange Rate as of the date of payment or disbursement) or the Foreign Currency in which such Letter of Credit was denominated under this Agreement and shall bear interest for each day from the date of such payment or disbursement at the Base Rate as in effect on each day until the date falling three (3) Banking Days after receipt by the Administrative Agent of an Interest Notice with respect to such Advance and shall thereafter bear interest at the Applicable Rate. The Letter of Credit Issuer shall give prompt notice to the Borrower and the Lenders of each payment or disbursement and the amount thereof in, as applicable, (x) Dollars, (y) the relevant Foreign Currency or (z), if such payment or disbursement was in a currency other than Dollars or a Foreign Currency, the Dollar Equivalent of such payment or disbursement (together with the sum thereof in the relevant foreign currency and the applicable Exchange Rate) under a Letter of Credit. 21 (b) (i) The Letter of Credit Issuer shall not concern itself with the regularity or propriety of any demand made under any Letter of Credit beyond the face thereof, provided that such demand strictly complies with the terms of such Letter of Credit and (subject to the above proviso) it shall not be a defense to a claim of the Letter of Credit Issuer that the Letter of Credit Issuer could have resisted the payment in respect of which such claim is made. (ii) The Borrower's obligation to repay any Advance deemed made under this Section 3.9 (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which the Borrower may have or have had against the Letter of Credit Issuer or any Lender, including, without limitation, any defense based upon the failure of any drawing under a Letter of Credit to conform to the terms of the Letter of Credit (other than the failure of the Letter of Credit Issuer to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit) or any non-application or misapplication by the beneficiary of the proceeds of such drawing; provided, however, that the Borrower shall not be obligated to reimburse the Letter of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. 3.10. Letter of Credit Participation. (a) Immediately upon the issuance by a Letter of Credit Issuer of such Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and transferred to each Lender, and each Lender (each a "Letter of Credit Participant") shall be deemed irrevocably and unconditionally to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an undivided interest and participation, to the extent of such Lender's Commitment, in such Letter of Credit, each substitute letter of credit, each drawing made thereunder and the obligation of the Borrower under this Agreement with respect thereto (although the Letter of Credit Fee shall be payable directly to the Administrative Agent for the account of the Letter of Credit Participants as provided in Section 14.2) and any security therefor or guaranty pertaining thereto; provided, however, that for purposes of an Extended Letter of Credit, a Lender that did not consent to an Extended Letter of Credit shall not be deemed to be a Letter of Credit Participant in such Extended Letter of Credit. (b) In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer shall not have any obligation relative to the respective Letter of Credit Participants other than to determine that any documents required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit. Any action taken or omitted to be taken by the Letter of Credit Issuer under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not create for the Letter of Credit Issuer any resulting liability to the respective Letter of Credit Participants. (c) In the event that any Letter of Credit Issuer makes any payment under any Letter of Credit issued thereby, upon receipt of notice thereof as provided in Section 3.9(a), each Letter of Credit Participant shall promptly and unconditionally pay to the Letter of Credit Issuer, the amount of 22 such Letter of Credit Participant's Percentage of such payment in Dollars (or if the Letter of Credit was (x), issued in a Foreign Currency, the currency of issuance or (y) issued in a currency other than Dollars or the Foreign Currencies, in Dollars, based upon the Dollar Equivalent of the deemed advance as calculated pursuant to Section 3.9(a)) and in same day funds; provided, however, that no Letter of Credit Participant shall be obligated to pay to the Letter of Credit Issuer its percentage of such payment for any wrongful payment made by the Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If the Letter of Credit Issuer so notifies any Letter of Credit Participant required to fund a Drawing under a Letter of Credit prior to 11:00 a.m., New York time, on any Banking Day, such Letter of Credit Participant shall make available to the Letter of Credit Issuer such Letter of Credit Participant's Percentage of the amount of such payment on such Banking Day in same day funds. If and to the extent such Letter of Credit Participant shall not have so made its percentage of the amount of such drawing available to the Letter of Credit Issuer, such Letter of Credit Participant agrees to pay to the Letter of Credit Issuer, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to the Letter of Credit Issuer at the overnight Federal Funds Effective Rate. The failure of any Letter of Credit Participant to make available to the Letter of Credit Issuer its percentage of any drawing under any Letter of Credit shall not relieve any other Letter of Credit Participant of its obligation hereunder to make available to the Letter of Credit Issuer its percentage of any payment under any Letter of Credit on the date required, as specified above, but no Letter of Credit Participant shall be responsible for the failure of any other Letter of Credit Participant to make available to the Letter of Credit Issuer such other Letter of Credit Participant's Percentage of any such payment. (d) The obligation of the respective Letter of Credit Participants to make payments to the applicable Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and not subject to counterclaim, set-off or other defense or any other qualification or exception whatsoever (provided that no Letter of Credit Participant shall be required to make payments resulting from the Letter of Credit Issuer's gross negligence or willful misconduct) and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of this Agreement. (ii) the existence of any claim, set-off, defense or other right which the Borrower may have at any time against a beneficiary named in a Letter of Credit, any transferee of any Letter of Credit (or any person for whom any such transferee may be acting), any Agent or Lender or other person, whether in connection with this Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between the Borrower and the beneficiary named in any such Letter of Credit); 23 (iii) any draft, certificate or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect; or (iv) the occurrence of any Event of Default. SECTION 4. CONDITIONS ---------- 4.1. Conditions Precedent to Drawdown of the Initial Advance under the Credit Facility. The obligation of the Lenders to make the initial Advance available to the Borrower under this Agreement shall be expressly subject to the following conditions precedent: (a) the Administrative Agent shall have received the following documents in form and substance satisfactory to the Administrative Agent and its legal advisers: (i) copies, certified as true and complete by an officer of the Borrower of the resolutions of its board of directors evidencing approval of this transaction and authorizing an appropriate officer or officers or attorney-in-fact or attorneys-in-fact to execute this Agreement and the Notes and any other documents required in connection herewith on its behalf; (ii) copies, certified as true and complete by an officer of the Borrower or other applicable party, of all documents evidencing any other necessary actions (including actions by such parties thereto other than the Borrower as may be required by the Lenders), 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 the Borrower of its certificate of incorporation and by-laws; (iv) certificate of the Secretary or Assistant Secretary of the Borrower certifying as to (x) the incumbency of the signatories of the Borrower, (y) the present directors of the Borrower and (z) the authorized, issued and outstanding capital stock of each of the Vessel Owning/Operating Subsidiaries legally and beneficially owned by the Borrower; and (v) good standing certificate of the Borrower; (b) the Borrower shall have duly executed and delivered: (i) this Agreement, (ii) the Notes, and (iii) the fee letter referred to in Section 14.4; 24 (c) the Operating Accounts referred to in Section 8.1 shall have been duly established with the Administrative Agent; (d) the Administrative Agent shall have received a certificate of the chief financial officer of the Borrower confirming the representations and warranties set forth in Section 2.1(l) and containing conclusions as to the solvency of the Borrower (on a consolidated basis); (e) the Agents and the Lenders shall have received payment in full of all fees and expenses due to them on the date hereof including, without limitation, all fees and expenses due under Section 14; (f) the Administrative Agent shall be satisfied that neither the Borrower nor any of the Subsidiaries is subject to any Environmental Claim which could give rise to a Material Adverse Change; (g) the Administrative Agent shall have received true and complete copies of (i) the 10K report of the Borrower for the year ending December 31, 2000 filed with the United States Securities and Exchange Commission and (ii) all 10Q and 8K reports filed by the Borrower with the United States Securities and Exchange Commission since December 31, 2000; (h) no Material Adverse Change having occurred since September 30, 2001; (i) the Administrative Agent having received such evidence as it may require that the Borrower and each of the Subsidiaries have insured their respective properties and other assets with underwriters and agents acceptable to the Administrative Agent in the manner required under Section 2.1(k); (j) the Administrative Agent shall have received opinions from Seward & Kissel LLP, counsel to the Lenders and the Agents, Alice Gran, Esq., in-house counsel to the Borrower and Weil, Gotshal & Manges, special counsel to the Borrower, in such form as the Administrative Agent may agree, as well as such other legal opinions as the Lenders shall have required as to all or any matters under the laws of the United States of America, the State of New York and the State of Delaware covering the representations and conditions which are the subjects of Sections 2 and 4 or in such other form as the Administrative Agent may agree; and (k) the Administrative Agent shall have received evidence of the termination, cancellation and prepayment of all amounts outstanding under the Existing Credit Facility. 4.2. Further Conditions Precedent. The obligation of the Lenders to make any Advance (other than an Advance which occurs by reason of a drawing under any Letter of Credit) available to the Borrower shall be expressly and separately from the foregoing conditional upon, on the relevant Drawdown Date: (a) the Administrative Agent having received a Drawdown Notice in accordance with the terms of Section 3.3; 25 (b) the representations stated in Section 2 (updated mutatis mutandis) being true and correct as if made on that date; (c) no Event of Default having occurred and being continuing and no event having occurred and being continuing which, with the giving of notice or lapse of time, or both, would constitute an Event of Default; and (d) the Administrative Agent being satisfied that no Event of Default will arise following the drawdown of the Advance in question by reason of the drawdown of the Advance and that no event or state of affairs exists which constitutes, in the reasonable opinion of the Administrative Agent, a material risk that it will be unlawful or impossible for the Borrower to make any payment or perform any material obligation as required under the terms of this Agreement and the Notes. 4.3. Break Funding Costs. In the event that, on any date specified for the making of an Advance in any Drawdown Notice, the Lenders shall not be obliged under this Agreement to make such Advance available under this Agreement, the Borrower shall indemnify and hold the Lenders or any of them, fully harmless against any losses which they may sustain as a result of borrowing or agreeing to borrow funds to meet the drawdown requirement in respect thereof and the certificate of such Lender, absent manifest error, shall be conclusive and binding on the Borrower as to the extent of any such losses. 4.4. Satisfaction after Drawdown. Without prejudice to any of the other terms and conditions of this Agreement, in the event the Lenders, in their sole discretion, make an Advance prior to the satisfaction of all or any of the conditions referred to elsewhere in Sections 4.1 and 4.2, the Borrower hereby covenants and undertakes to satisfy or procure the satisfaction of such condition or conditions within fourteen (14) days after the relevant Drawdown Date (or such longer period as the Lenders, in their sole discretion, may agree). SECTION 5. REPAYMENT, PREPAYMENT AND REDUCTION ----------------------------------- 5.1. Repayment. The Borrower shall repay all outstanding Advances (subject to reductions and prepayments as hereinafter set forth) on the Termination Date and shall also repay outstanding Advances, to the extent required to comply with (a) Section 3.6, (b) a reduction of the Credit Facility pursuant to Section 5.3 or (c) as may be otherwise provided in this Agreement. Each Advance (together with interest accrued thereon and any costs or other sums associated therewith payable by the Borrower hereunder) shall be repaid in the currency in which such Advance was drawn down or, in the case of such costs or sums, the currency in which such cost or sum was incurred or booked by the Agent and the Lenders. 5.2. Prepayment. The Borrower may prepay, upon three (3) days' written notice, any outstanding Advance or any portion thereof, without penalty, provided that such prepayment is made on the last day of the Interest Period covering such Advance. Each prepayment shall be (a) in a minimum amount of: (x) if made in Dollars, One Million Dollars ($1,000,000) or (y) if made in a Foreign Currency, the then Dollar Equivalent (rounded upward to the nearest multiple of one hundred (100) units of account of the relevant currency) of One Million Dollars ($1,000,000), (b) in an amount equal to an integral multiple of such 26 minimum amount or (c) in the full amount of the Advance. On the date of prepayment all accrued interest to the date of such prepayment shall be paid in full with respect to Advances or portion thereof being prepaid, together with any and all actual costs or expenses incurred by any Agent or Lender in connection with any breaking of funding ( as certified by the relevant Lenders, which certification, absent any manifest error, shall be conclusive and binding on the Borrower). 5.3. Permanent Reduction of the Committed Amount of the Credit Facility. (i) The Borrower shall have the right, at any time and from time to time, to request, without penalty, a permanent partial or whole reduction of the Committed Amount, provided that (a) the Administrative Agent receives three (3) Banking Days' prior written notice of such request and (b) if the then outstanding Credit Facility Balance exceeds the Committed Amount as so reduced, such requested reduction occurs on the last day of the applicable Interest Period(s) for Advances (or portions thereof) outstanding under this Agreement at least equal to the excess of the Credit Facility Balance over the reduced Committed Amount. Each such partial permanent reduction shall be equal to or shall exceed One Million Dollars ($1,000,000) and shall be an integral multiple of One Million Dollars ($1,000,000). 5.4. Reduction of Commitment. Simultaneously with each reduction of the Committed Amount (whether pursuant to Section 5.3 or otherwise), each Lender's Commitment in respect of the Credit Facility shall be reduced pro rata in proportion to their respective interests in the Credit Facility. SECTION 6. INTEREST AND RATE ----------------- 6.1. Applicable Rate. Except as otherwise provided in Section 3.9, each Advance shall bear interest at a rate per annum (the "Applicable Rate") equal to the aggregate of (a) LIBOR for the applicable Interest Period, plus (b) the then applicable margin (the "Applicable Margin") determined in accordance with Section 6.2 plus (c) any applicable margin or eurocurrency liability reserve requirement imposed on any Lender as a result of the operation of Regulation D (Title 12, Code of Federal Regulations, Chapter II, Part 204), or any successor thereto, or similar reserve requirement imposed upon a Lender by the jurisdiction of incorporation of such Lender or the domicile of its Lending Office, as in effect from time to time constituting a sum payable by the Borrower under Section 12.2. Upon the occurrence of an Event of Default or an event or condition which, with the giving of notice or passage of time or both, would constitute an Event of Default, the Credit Facility Balance or any other amount payable hereunder or under the Notes shall bear interest thereafter at a rate (the "Default Rate") of two hundred basis points (200 bp) over the Applicable Rate then in effect. 6.2. The Applicable Margin. The Applicable Margin, as determined from time to time by the Administrative Agent as provided herein, shall vary based upon (a) the Borrower's credit rating as determined by S&P and Moody's, or (b) if the Borrower is no longer rated, the ratio of the Borrower's consolidated Funded Debt to the consolidated EBITDA for the Borrower, as follows: 27
----------------------------------------------- --------------------------------------------- ------------------------------------- Applicable Margin Credit Rating Funded Debt/EBITDA ----------------------------------------------- --------------------------------------------- ------------------------------------- 65 bp A-/A3 Less than or equal to 0.75 ----------------------------------------------- --------------------------------------------- ------------------------------------- 75 bp BBB+/Baa1 Greater than 0.75, but less than or equal to 1.50 ----------------------------------------------- --------------------------------------------- ------------------------------------- 85 bp BBB/Baa2 Greater than 1.50, but less than or equal to 2.25 ----------------------------------------------- --------------------------------------------- ------------------------------------- 100 bp BBB-/Baa3 Greater than 2.25, but less than or equal to 3.0 ----------------------------------------------- --------------------------------------------- ------------------------------------- 125 bp BB+/Ba1 Greater than 3.0, but less than or equal to 4.0 ----------------------------------------------- --------------------------------------------- ------------------------------------- 150 bp Less than BB+/Ba1 Greater than 4.0 ----------------------------------------------- --------------------------------------------- -------------------------------------
For purposes of determining the Applicable Margin, in the case of a split rating in the respective credit ratings of the Borrower by Moody's and S&P the higher of the two ratings shall apply. In the event of a split rating of more than one level, the rating which is one level above the lower rating shall apply. The Applicable Margin shall be determined by the Administrative Agent quarterly (based upon the latest 10Q or 10K report and Compliance Certificate delivered by the Borrower to the Administrative Agent from time to time pursuant to this Agreement). The newly determined Applicable Margin shall be effective on the last day of the month following the month during which such report and certificate were delivered to the Administrative Agent. 6.3. LIBOR; Interest Periods. With respect to each Advance, the Borrower may select Interest Periods of one (1), two (2), three (3), six (6), nine (9) or twelve (12) months (or such longer period as the Lenders may, in their sole discretion, agree), provided however, that in no event may the Borrower select an Interest Period of one (1) month more than six (6) times in any calendar year. The Borrower shall give an Interest Notice to the Administrative Agent (which shall promptly forward same to the Lenders) at least three (3) Banking Days prior to the end of any then existing Interest Period, which Interest Notice shall set forth the Interest Period selected. If at the end of any then existing Interest Period, the Borrower fails to give an Interest Notice as provided herein, the following Interest Period shall have a duration of three (3) months. LIBOR and the Applicable Rate shall be determined by the Administrative Agent two (2) Banking Days prior to the first day of the relevant Interest Period and shall be promptly notified in writing to the Borrower. The Borrower's right to select an Interest Period shall be further subject to the restriction that no selection of an Interest Period shall be effective unless the Lenders are satisfied that the necessary funds will be available to the Lenders for such period and the Administrative Agent is satisfied that no Event of Default or event which with notice or the passage of time, or both, would constitute an Event of Default shall have occurred. No Interest Period may extend beyond the Termination Date. 6.4. Interest Payments. Interest on each Advance or portion thereof, shall be payable quarterly in arrears and on the last day of each Interest Period. 28 6.5. Interest Due Only on Banking Day. If interest would, under Section 6.4, be payable on a day which is not a Banking Day, it shall then be payable on the next following Banking Day, unless such next following Banking Day falls in the following month in which case it shall be payable on the Banking Day immediately preceding the day on which such interest would otherwise be payable. 6.6. Calculation of Interest. All interest shall accrue from day to day and be calculated on the actual number of days elapsed and on the basis of a three hundred sixty (360) day year. SECTION 7. PAYMENTS -------- 7.1. Place of Payments, No Set Off. All payments to be made hereunder by the Borrower shall be made on the due dates of such payments to the Administrative Agent at its office located at 200 Park Avenue, New York, New York or to such other branch of the Administrative Agent as the Administrative Agent may direct, without set-off or counterclaim and free from, clear of and without deduction for, any Taxes, provided, however, that if the Borrower shall at any time be compelled by law to withhold or deduct any Taxes from any amounts payable to the Agents and the Lenders hereunder, then, subject to Section 7.2, the Borrower shall pay such additional amounts in Dollars as may be necessary in order that the net amounts received after withholding or deduction shall equal the amounts which would have been received if such withholding or deduction were not required and, in the event any withholding or deduction is made, whether for Taxes or otherwise, the Borrower shall promptly send to the Administrative Agent such documentary evidence with respect to such withholding or deduction as may be required from time to time by the Agents and the Lenders or any thereof. 7.2. Proof of no Withholding. Each Lender and any transferee, assignee or participation holder (a "Transferee") that is not incorporated under the laws of the United States of America or a State thereof agrees that, on the initial Drawdown Date and prior to the first date on which any payment is due to such Lender or Transferee hereunder, the Lender or Transferee shall deliver to the Borrower a duly completed United States Internal Revenue Service Form W-8 BEN or Form W-8 ECI (or applicable successor form) indicating that such Lender is exempt from United States withholding tax. Each Lender or Transferee that is incorporated under the laws of the United States or a State thereof shall, on the initial Drawdown Date and prior to the first date on which any payment is due to such Lender or Transferee hereunder, deliver to the Borrower a United States Internal Revenue Service Form W-9 (or applicable successor form). A Lender or Transferee subject to the provisions of this Section 7.2 further undertakes to deliver to the Borrower another copy of any of the foregoing forms on or before the date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered thereby to the Borrower, unless in any such case an event (including, without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Lender or Transferee from duly completing and delivering any such form with respect to it, and such Lender or Transferee has advised the Borrower that it is no longer exempt from United States withholding tax or exempt from United States backup withholding tax, as the case may be. The Borrower shall not be required to pay any additional amounts described in Section 7.1 hereof to the extent that 29 the underlying Taxes arise as a result of (i) a Lender's or a Transferee's failure to provide any applicable IRS form referred to in this Section 7.2 within sixty (60) days after the Borrower has made a written request for such form, or (ii) the IRS determining upon audit of the Borrower that such IRS form submitted by the Lender or a Transferee is incorrect or invalid. 7.3. Federal Income Tax Credits. In connection with the foregoing, each Lender may consult with its legal advisers, all fees and expenses of which shall be for the account of the Borrower. If a Lender obtains the benefit of a credit against its liability for federal income taxes imposed by the United States of America for all or part of the Taxes as to which the Borrower has paid additional amounts as aforesaid then such Lender shall reimburse the Borrower for the amount of the credit so obtained. SECTION 8. ACCOUNTS -------- 8.1. The Operating Accounts. Except as otherwise agreed by the Administrative Agent, the Borrower and the Vessel Owning/Operating Subsidiaries shall maintain with the Administrative Agent at the office of the Administrative Agent located at 200 Park Avenue, New York, New York or at other branches of the Administrative Agent the principal operating accounts of the Borrower and the Vessel Owning/Operating Subsidiaries if the Administrative Agent has full commercial banking capability as of the date of this Agreement in the geographic areas in which the Borrower or any of the Vessel Owning/Operating Subsidiaries operate. The Lenders expressly acknowledge that such operating accounts are not pledged or otherwise hypothecated to the Lenders in connection with the Credit Facility. The Lenders further acknowledge that any moneys deposited in such accounts may be utilized for any business purpose whatsoever consistent with the terms of this Agreement. Amounts accumulated in each Operating Account shall bear interest for the account of the party maintaining such account in accordance with the Administrative Agent's normal practice. SECTION 9. EVENTS OF DEFAULT ----------------- 9.1. In the event that any of the following events shall occur and be continuing: (a) Principal and Interest Payments. Any payment of principal due on the Termination Date or otherwise due hereunder or under the Notes or under any of them or any Interest on any of the Advances, is not paid on the due date; or (b) Other Payments. Any amount (other than principal and interest) becoming payable under this Agreement or under the Notes or under any of them, is not paid on the due date or date of demand (as the case may be), and such default continues unremedied for a period of three (3) Banking Days; or (c) Representations, etc. Any representation, warranty or other statement made by the Borrower in this Agreement or in any other instrument, document or other agreement delivered in connection herewith or therewith proves to have been untrue or misleading in any material respect as at the date as of which made or affirmed; or 30 (d) Impossibility, Illegality. It becomes impossible or unlawful for the Borrower to fulfill any of the covenants and obligations contained herein or in the Notes or for any of the Lenders to exercise any of the rights vested in them hereunder or under the Notes and such impossibility or illegality in the reasonable opinion of the Majority Lenders will give rise to a Material Adverse Change; or (e) Citizenship. The Borrower or any of the Subsidiaries owning Vessels registered under the laws and flag of the United States of America breaches Section 10.1(a)(vi) and, provided such default does not render any such Vessel liable to forfeiture, such default is not cured within thirty (30) days of its occurrence; or (f) Covenants. (I) The Borrower defaults in the performance of Sections 10.1 (a)(iii), (v) or (xxi) or Sections 10.1(b)(i), (iii), (iv), (v), (vi), (xi) or (xii) or (II) the Borrower defaults in the performance of Sections 10.1(a)(xv), (xvi), (xvii) or (xviii) and such default is not cured within twenty (20) days; or (g) Other Covenants. The Borrower defaults in the performance of any other term, covenant or agreement contained in this Agreement, in the Notes or in any other instrument, document or other agreement delivered in connection herewith or therewith, or there occurs any other event which constitutes a default under this Agreement or under the Notes, in each case other than an Event of Default referred to elsewhere in this Section 9.1 and such default continues unremedied for a period of thirty (30) days following notice thereof by the Administrative Agent; or (h) Indebtedness. The Borrower or any of the Subsidiaries shall (a) default in the payment when due (subject to any applicable grace period), whether by acceleration or otherwise, of any Funded Debt in excess of Ten Million Dollars ($10,000,000), (b) default in the observance or performance of any agreement or condition relating to any such Funded Debt or any other event shall occur or condition exist, the effect of which default or other event or condition would entitle the holder or holders of such Funded Debt to declare any such Funded Debt to become due prior to its stated maturity or (c) default in the observance or performance of any agreement or condition relating to Indebtedness (other than Funded Debt) exceeding, in the aggregate, Ten Million Dollars ($10,000,000) and in connection with such default or in connection with any non-payment default in respect of such Indebtedness referred to in this sub-clause (c), any party becomes entitled to (x) enforce the security for any such Indebtedness and such party shall take steps to enforce the same, or (y) any party becomes entitled to accelerate and accelerates such Indebtedness, unless such default, acceleration or enforcement is being contested in good faith and by appropriate proceedings or other acts and the Borrower and/or such Subsidiary or Subsidiaries, as the case may be, shall set aside on its books adequate reserves with respect thereto; or (i) Bankruptcy. The Borrower or any of the Subsidiaries commences any proceedings relating to any portion of its property under any reorganization, arrangement or readjustment of debt, dissolution, winding up, adjustment, composition, bankruptcy or liquidation law or statute of any jurisdiction (other than with respect to a corporate re-organization unrelated 31 to a company's insolvency), whether now or hereafter in effect ("Proceeding"), or there is commenced against any thereof any Proceeding which Proceeding remains undismissed or unstayed for a period of thirty (30) days; or any receiver, trustee, liquidator or sequestrator of, or for, any thereof or any substantial portion of the property of any thereof is appointed and is not discharged within a period of thirty (30) days; or any thereof by any act indicates consent to or approval of or acquiescence in any Proceeding or to the appointment of any receiver, trustee, liquidator or sequestrator of, or for, itself or any substantial portion of its property; or (j) Judgments. Any judgment or order is made the effect whereof would be to render ineffective or invalid this Agreement, the Notes or any thereof; or (k) Inability to Pay Debts. The Borrower or any of the Subsidiaries is unable to pay or admits its inability to pay its debts as they fall due or if a moratorium shall be declared in respect of any Funded Debt of the Borrower or any of the Subsidiaries; or (l) Change of Control of the Borrower. The Borrower shall have suffered a Change of Control; then the Lenders' obligation to make the Credit Facility available shall cease and the Administrative Agent, on behalf of the Lenders, may (with the consent of the Majority Lenders) and shall (upon the Majority Lenders' instruction) by notice to the Borrower, (i) declare the entire balance of the then outstanding Advances, accrued interest and any other sums payable by the Borrower 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 subsections (i) or (k) of this Section 9.1, the Notes shall be immediately due and payable without declaration or other notice to the Borrower), (ii) terminate any Letter of Credit which may be terminated in accordance with its terms and (iii) direct the Borrower to pay (and the Borrower hereby agrees upon receipt of such notice, or upon the occurrence of an Event of Default specified in subsection (i) or (k) of this Section 9.1, it will pay) to the Administrative Agent at the office set forth in Section 7.1 such additional amounts, to be held as security in respect of Letters of Credit then outstanding (if any), equal to the aggregate of the then Letter of Credit Outstandings, such amounts to be repaid to the Borrower to the extent not utilized to cover Letter of Credit drawings. In such event, the Administrative Agent and the Lenders may proceed to protect and enforce their rights by action at law, suit in equity or in admiralty or other appropriate proceeding, whether for specific performance of any covenant contained in this Agreement or in the Notes or in aid of the exercise of any power granted herein or therein, or the Administrative Agent and the Lenders 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 laws for the collection of all sums due, or so declared due, on the Notes, including, without limitation, the right to appropriate and hold or apply (directly, by way of set-off or otherwise) to the payment of the obligations of the Borrower hereunder and/or under the Notes (whether or not then due) all moneys and other amounts of the Borrower , then or thereafter in possession of the Lenders, the balance of any deposit account (demand or time, matured or unmatured) of the Borrower then or 32 thereafter with the Lenders and every other claim of the Borrower then or thereafter against the Lenders. 9.2. Indemnification. The Borrower agrees to, and shall, indemnify and hold each of the Agents and the Lenders harmless against any loss or reasonable costs or expenses (including legal fees and expenses) which any of the Agents and the Lenders sustains or incurs as a consequence of any default in payment of the principal amount of any Advance or interest accrued thereon or any other amount payable hereunder or under the Notes including, but not limited to, all actual losses incurred in liquidating or re-employing fixed deposits made by third parties or funds acquired to effect or maintain the Credit Facility or any part thereof and any costs incurred by any of the Agents and the Lenders in connection with the unwinding of any interest rate swap or other hedging arrangements. The Borrower also agrees to reimburse and indemnify the Letter of Credit Issuer for and against any and all losses, costs or expenses of whatever nature which may be incurred by the Letter of Credit Issuer in performing its respective duties in any way relating to or arising out of its issuance of Letters of Credit; provided that the Borrower shall not be liable for the portion of such losses, costs or expenses resulting from the Letter of Credit Issuer's gross negligence or willful misconduct. To the extent the Letter of Credit Issuer is not so indemnified by the Borrower, the Letter of Credit Participants will reimburse and indemnify the Letter of Credit Issuer in proportion to its Letter of Credit Participant Percentage. An Agent or Lender `s certification of such loss, costs and expenses absent any manifest error, shall be conclusive and binding on the Borrower. 9.3. Application of Moneys. All moneys received by any of the Lenders under or pursuant to this Agreement or the Notes after the happening of any Event of Default shall be applied by the Administrative Agent in the following manner: (i) first, in or towards the payment or reimbursement of any expenses or liabilities incurred by the Agents and the Lenders in connection with the ascertainment, protection or enforcement of the Agents and the Lenders' rights and remedies hereunder and under the Notes, (ii) secondly, in or towards payment of any interest owing in respect of the Advances, (iii) thirdly, in or towards repayment of the Advances, (iv) fourthly, as security in respect of Letters of Credit then outstanding, in the aggregate amount of the then Letter of Credit Outstandings, (v) fifthly, in or towards payment of all other sums which may be owing to the Agents and the Lenders under this Agreement or under the Notes, and (vi) sixthly, the surplus (if any), as well as any moneys held as security for Letters of Credit to the extent not utilized to cover Letters of Credit, shall be paid to the Borrower or to whomsoever else may be entitled thereto. 33 SECTION 10. COVENANTS --------- 10.1. The Borrower hereby covenants and undertakes with the Agents and the Lenders that, from the date hereof and so long as (x) any commitments to advance credit hereunder remain in effect or (y) any principal, interest or other moneys are owing in respect of the Credit Facility or otherwise owing under this Agreement or under the Notes: (a) The Borrower will: (i) Performance of Agreements. Duly perform and observe the terms of this Agreement and the Notes; (ii) Compliance with Covenants. Comply with each of its covenants set forth in this Agreement; (iii) Notice of Default. Promptly inform the Administrative Agent of the occurrence of (a) any Event of Default or of any event which with the giving of notice or lapse of time, or both, would constitute an Event of Default, (b) any litigation or governmental proceeding pending or overtly threatened against it or against any of the Subsidiaries which could reasonably be expected to give rise to a Material Adverse Change and (c) any other event or condition of which it becomes aware which is reasonably likely to give rise to a Material Adverse Change; (iv) Obtain Consents. Without prejudice to Section 2.1 and this Section 10.1, obtain every consent and do all other acts and things which may from time to time be necessary or advisable for the continued due performance of all its obligations under this Agreement and under the Notes; (v) Financial Statements and Other Information. Deliver to the Administrative Agent (in sufficient number of copies to provide one to each Lender): (a) as soon as available but not later than ninety (90) days after the end of each fiscal year of the Borrower, a complete copy of the 10K report (or equivalent) of the Borrower filed with the United States Securities and Exchange Commission (including audited annual consolidated financial statements of the Borrower, in each case setting forth comparative consolidated figures for the preceding fiscal year, together with a report thereon by an Acceptable Accounting Firm whose opinion shall not be qualified as to the scope of audit and as to the status of the Borrower and its subsidiaries as a going concern), which shall be prepared by the Borrower and certified by the chief financial officer of the Borrower, together with a Compliance Certificate from such chief financial officer; (b) as soon as available but not later than sixty (60) days after the end of each quarter of each fiscal year of the Borrower, a copy of the 10Q report (or equivalent) of the Borrower filed with the United States Securities and Exchange Commission which shall be 34 prepared by the Borrower and certified by the chief financial officer of the Borrower, together, in each instance, with a Compliance Certificate from such chief financial officer; (c) within ten (10) days of filing, notice of the filing of all 8K reports (or equivalent) filed by the Borrower with the United States Securities and Exchange Commission (or any similar governmental authority) and deliver to the Administrative Agent, promptly on its request therefor, copies of such filings; (d) promptly upon the mailing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements so mailed; (e) within ten (10) days of filing, notice of the filing of all registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent) which the Borrower shall have filed with the United States Securities and Exchange Commission (or similar governmental authority) and deliver to the Administrative Agent, promptly on its request therefor, copies of such filings; (f) such other statement or statements, lists of property and accounts, budgets, forecasts, reports and financial information (including a listing of all outstanding indebtedness of the Borrower and the Subsidiaries for borrowed monies) with respect to the business, operations and management of the Borrower and the Subsidiaries and the employment of the assets owned or operated directly or indirectly by the Borrower or any of the Subsidiaries as the Administrative Agent may from time to time reasonably request in writing and any material reports received by any thereof from their independent certified accountants; and (g) include in each Compliance Certificate a List of Liens, current as of the date of such Certificate; (vi) Qualification to Own U.S. Flag Vessels. Throughout the Credit Period, if the Borrower or a Subsidiary owns a United States flag vessel (a) the Borrower shall remain eligible, and shall cause such Subsidiary to continue to be eligible, to document such United States flag vessel within the meaning of 46 App. U.S.C. ss.12102(a) and (b) if such United States flag vessel is operated in the coastwise trade, remain qualified, and cause such Subsidiary to continue to be qualified, to own and operate vessels in the coastwise trade, within the meaning of Section 2 of the Shipping Act, 1916, as amended; (vii) Corporate Existence. Do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, as well as the corporate existence of its Subsidiaries, and all licenses, franchises, permits and assets necessary to the conduct of its business and the business of its Subsidiaries; 35 (viii) Books, Records, etc. Keep, and cause each of the Subsidiaries to keep, proper books of record and account into which full and correct entries shall be made, in accordance with GAAP throughout the Credit Period; (ix) Inspection. Allow any representative or representatives designated by the Administrative Agent, subject to applicable laws and regulations, to visit and inspect any of its or any of the Subsidiaries' properties, and, on request, to examine its or any of the Subsidiaries' books of account, records, reports and other papers (and to make copies thereof and to take extracts therefrom) and to discuss the affairs, finances and accounts of any thereof with its officers and executive employees all at such reasonable times and as often as the Administrative Agent reasonably requests; (x) Taxes. Pay and discharge, and cause each of the Subsidiaries to pay and discharge, all taxes, assessments and governmental charges or levies imposed upon it or upon its income or property prior to the date upon which penalties attach thereof; provided, however, that neither it nor any such Subsidiary shall be required to pay and discharge any such tax, assessment, charge or levy which are being contested in good faith and by appropriate proceedings or other acts and so long as it or such Subsidiary shall set aside on its books adequate reserves with respect thereto; (xi) Compliance with Statutes, etc. Do, or cause to be done, all things necessary to comply with all material laws, and the rules and regulations thereunder, applicable to itself or to any of the Subsidiaries including, without limitation, those laws, rules and regulations relating to employee benefit plans and environmental matters; (xii) Environmental Matters. Promptly upon the occurrence of any of the following conditions, provide to the Administrative Agent a certificate of a chief executive officer thereof, specifying in detail the nature of such condition and its proposed response or the response of its Environmental Affiliate: (a) its receipt or the receipt by any Subsidiary or any of their Environmental Affiliates of any communication whatsoever that alleges that such person is not in compliance with any applicable environmental law or environmental approval, if such noncompliance could reasonably be expected to give rise to a Material Adverse Change, (b) knowledge by it, any Subsidiary or any of their Environmental Affiliates that there exists any Environmental Claim pending or threatened against any such person, which could reasonably be expected to give rise to a Material Adverse Change, or (c) any release, emission, discharge or disposal of any material that could form the basis of any Environmental Claim against it, any Subsidiary or any of their Environmental Affiliates if such Environmental Claim could reasonably be expected to give rise to a Material Adverse Change. Upon the written request by the Administrative Agent, it will submit to the Administrative Agent at reasonable intervals, a report providing an update of the status of any issue or claim identified in any notice or certificate required pursuant to this subsection; 36 (xiii) Evidence of Insurance. Shall, and shall procure that each of the Subsidiaries shall, maintain the insurances on its properties as provided under Section 2.1(g)(iii) and 2.1(k), with underwriters, brokers and protection and indemnity clubs acceptable to the Administrative Agent, and the Borrower shall provide the Administrative Agent with such documentation as the Administrative Agent should reasonably require evidencing the same; (xiv) Maintenance of Assets. Maintain and keep, and cause the Subsidiaries to maintain and keep, all properties used or useful in the conduct of their business in good condition, repair and working order and supplied with all necessary equipment and will make, or cause to be made, all necessary repairs, renewals and replacements thereof so that the business carried on in connection therewith and every portion thereof may be properly and advantageously conducted at all times; (xv) Funded Debt/Total Capitalization. Procure that, on a consolidated basis, the Funded Debt of the Borrower shall not exceed fifty percent (50%) of its Total Capitalization; (xvi) Secured Debt/Total Capitalization. Procure that, on a consolidated basis, the Secured Debt of the Borrower shall not exceed twenty percent (20%) of its Total Capitalization; (xvii) Interest Coverage Ratio. Maintain, on a consolidated basis, an Interest Coverage Ratio of not less than 3.0 to 1.0, determined as at the end of each fiscal quarter (xviii) Consolidated Net Worth. At all times maintain a Consolidated Net Worth no less than (a) during the calendar year 2002, an amount equal to Six Hundred Million Dollars ($600,000,000) and (b) during each calendar year thereafter, an amount equal to the sum of Six Hundred Million Dollars ($600,000,000) and fifty percent (50%) of the Borrower's cumulative consolidated annual net income (to the extent positive) , for each calendar year commencing with 2002, as reported from time to time, in the Borrower's published financial reports; (xix) ERISA Matters. Forthwith upon learning of the occurrence of any material liability of the Borrower, any of the Subsidiaries or any ERISA Affiliate pursuant to ERISA in connection with the termination of any Plan or withdrawal or partial withdrawal from any multiemployer plan (as defined in ERISA) or of a failure to certify the minimum funding standard of Section 412 of the Code or Part 3 of Title I of ERISA by any Plan for which the Borrower, any of the Subsidiaries or any ERISA Affiliate is plan administrator (as defined in ERISA), furnish or cause to be furnished to the Administrative Agent written notice thereof; (xx) Notice of Change in Credit Rating. Promptly upon the occurrence of any of the following conditions, and in any event within ten (10) days after the Borrower obtains knowledge thereof, inform the Administrative Agent of any change in (a) the credit rating assigned by 37 S&P or Moody's to any debt of the Borrower or (b) the stated implied senior debt rating assigned by S&P or Moody's with respect to the Borrower; and (xxi) End of Fiscal Year. Cause, for financial reporting purposes, (a) each of its fiscal years to end on December 31 of each year and (b) each of its fiscal quarters to end on March 31, June 30, September 30 and December 31. (b) The Borrower will not, without the prior written consent of the Lenders: (i) Liens. Create, assume or permit to exist, or permit any of its Subsidiaries to create, assume or permit to exist, any Lien, upon any of the properties or other assets of any thereof, except: (a) liens for taxes not yet payable for which adequate reserves have been maintained; (b) pledges or deposits to secure obligations under workmen's compensation laws or similar legislation, deposits to secure public or statutory obligations, warehousemen's or other like liens, or deposits to obtain the release of such liens and deposits to secure surety, appeal or customs bonds on which it or any Subsidiary is the principal, as to all of the foregoing, only to the extent arising and continuing in the ordinary course of business; (c) liens, charges and other encumbrances over such property or other assets (other than Vessels) of the Borrower or any of the Vessel Owning/Operating Subsidiaries, unless otherwise prohibited by Section 10.1(b)(xii); (d) with respect to Vessels, liens for crew's wages remaining unpaid in accordance with reasonable commercial practices or for collision or salvage, liens in favor of suppliers of necessaries or other similar liens arising in the ordinary course of the vessel-owning company's business so long as the suppliers thereof have not evidenced an intention to enforce any such lien or liens for loss, damage or expense, which are fully covered by insurance or, in respect of which, a bond or other security has been posted by the company owning such Vessel with the appropriate court or other tribunal to prevent the arrest or secure the release of any vessel from arrest on account of such claim or lien; and (e) liens securing Secured Debt existing on the Closing Date as set forth on Schedule D and Liens on Vessels owned by the Borrower or its Subsidiaries or the earnings of, insurances covering or requisition compensation in respect of such Vessels, provided that the net book value of such Vessels does not exceed twenty percent (20%) of the net book value of all Vessels owned by the Borrower and its Subsidiaries, unless (i) in connection with the acquisition of additional Vessels whether through a corporate acquisition or otherwise, the Vessels being so acquired (or their earnings, insurances or 38 requisition compensation) are pledged as security for existing financing arrangements and are acquired subject to those arrangements, and (ii) after giving effect to such acquisition the aggregate of the net book value of the Vessels pledged prior to such acquisition together with the net book value of the Vessels so acquired exceeds twenty percent (20%) of the net book value of all Vessels owned by the Borrower and its Subsidiaries after giving effect to the acquisition, then the net book value of such additional vessels so pledged shall be excluded in determining compliance with this covenant until the earlier of (x) the date such additional vessels and any assignment, pledge or encumbrance on their earnings, insurance or requisition compensation are released and (y) six (6) months following the date of acquisition; (ii) Sale of Assets. Cease, or threaten to cease, its operations or viewed on a consolidated basis with its Subsidiaries, sell or otherwise dispose of, or threaten to sell or otherwise dispose of, all or substantially all of the assets thereof, or all or substantially all of such assets are seized or otherwise appropriated except for requisition for hire; (iii) Dividends. Declare or make any distributions to its shareholders, by dividend or otherwise, or otherwise dispose of any assets to its shareholders in cash or in any other manner unless the Borrower and the Subsidiaries are in full compliance with the covenants contained in this Agreement and no Event of Default has occurred and is continuing or will occur after giving effect to any declaration or distributions to shareholders; (iv) Limitations on Ability to Make Distributions. Create or otherwise cause to permit to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary to (a) pay dividends or make any other distributions on its capital stock or limited liability company interests, as the case may be, to the Borrower or any Subsidiary or pay any Indebtedness owed to the Borrower, (b) make any loans or advances to the Borrower, or (c) transfer any of its property or assets to the Borrower other than any such encumbrance or restriction agreed to by (i) any Vessel Owning/Operating Subsidiary incurring Secured Debt permitted hereunder to the extent such Secured Debt is incurred in connection with the acquisition or refinancing of its Vessels or (ii) any Subsidiary party to any Joint Venture in respect of a restriction referred to in sub-clause (c) above or (iii) any Subsidiary party to any Joint Venture to the extent such Joint Venture incurs Indebtedness, but only to the extent the parties to such Joint Venture are required to agree to any such restrictions; (v) Changes in Business. Change or permit any of the Subsidiaries to change, the nature of its business or commence any other business not reasonably related to the maritime services, environmental services, energy services or related businesses; 39 (vi) Consolidation, Merger. Consolidate with, or merge into, or agree to merge or become consolidated with, or merge into any corporation (it being understood that the Borrower can merge into, or agree to merge or become consolidated with any corporation so long as the Borrower is the surviving entity, any Subsidiary can merge into, or agree to merge or consolidate with any other Subsidiary and any Subsidiary can merge into, or agree to merge or become consolidated with the Borrower); (vii) Use of Proceeds. Use the proceeds of the Credit Facility in violation of Regulation G, T, U or X of the Board of Governors of the Federal Reserve System, as in effect from time to time; (viii) Redemption/Repurchase of Securities. Redeem or repurchase any of its outstanding convertible subordinated bonds or any class of its capital stock now or hereafter outstanding, unless after giving effect to any such redemption or repurchase it is in compliance with its covenants hereunder and no Event of Default shall have occurred and be continuing and notification of any such redemption or repurchase shall be included in the next quarterly Compliance Certificate delivered to the Agent; (ix) No Money Laundering. In connection with this Agreement, contravene any law, official requirement or other regulatory measure or procedure implemented to combat "money laundering" (as defined in Article 1 of the Directive (91/308/EEC) of the Council of European Communities); (x) Limitation on Investments in Joint Ventures. Make, and will not permit any Subsidiary to make, any Investment in any Joint Venture except, in the absence of an Event of Default, the Borrower and any Subsidiary may make any Investment in any Joint Venture on any date, if, immediately after giving effect to such Investment, the aggregate book value of all Investments made by the Borrower and its Subsidiaries would not exceed thirty percent (30%) of the Borrower's Total Capitalization based on the most recent financial statements of the Borrower required to be provided pursuant to Section 10.1(a)(v) ; provided however that at the time of such Investment and immediately after giving effect thereto the Borrower shall be in compliance with Sections 10.1(a) (xv), (xvi), (xvii) and (xviii); and provided further, that there shall be excluded from the computation of "Investments" hereunder any investment in securities of any type which are, at the time of the determination being made hereunder, fully listed and registered on (a) an exchange registered with the Securities and Exchange Commission as a national securities exchange or (b) an equivalent recognized national securities exchanges in any of the member countries of the European Union, Mexico, Japan, Norway or Singapore or such other national securities exchange approved by the Majority Banks; (xi) Limitation on Indebtedness. Incur, and shall procure that the Subsidiaries will not incur, any Indebtedness, except: (a) Indebtedness under this Credit Facility Agreement; 40 (b) Existing Indebtedness as set forth in Schedule E attached hereto, and the renewals of such Indebtedness as long as there is no resulting increase in Indebtedness; (c) Indebtedness under interest rate, foreign exchange or derivatives transactions entered into in the ordinary course of business; (d) Indebtedness under performance guarantees and standby letters of credit entered into in the ordinary course of business; and (e) Indebtedness of the Borrower and the Subsidiaries that may be incurred so long as immediately after giving effect to the incurrence of such Indebtedness the Borrower shall be in compliance with Sections 10.1(a)(xv), (xvi), (xvii) and (xviii); provided that the aggregate of Subsidiary Funded Debt of each of the Subsidiaries, when added together, shall not exceed thirty percent (30%) of the Total Capitalization of the Borrower on a consolidated basis; provided, further, that when aggregating any Subsidiary Funded Debt where more than one Subsidiary is liable in respect thereof, the aggregate of such Subsidiary Funded Debt shall not exceed the lesser of (A) two times the amount of the outstanding Underlying Subsidiary Funded Debt and (B) the aggregate of the Underlying Subsidiary Funded Debt and the book value of each of the Other Subsidiaries (excluding in the case of each of the other Subsidiaries which is not a Wholly-Owned Subsidiary, that portion of the book value of such Other Subsidiary which represents the minority interest holders' share of such book value); and provided further that when aggregating any Subsidiary Funded Debt (i) Subsidiary Funded Debt outstanding on the date hereof, and any refinancing thereof with the same Subsidiaries, shall be counted only once, (ii) any Subsidiary Funded Debt of New Subsidiaries and an Acquisition Subsidiary, if any, incurred or assumed in connection with an acquisition of New Subsidiaries shall be counted only once (including any refinancing thereof with the same Subsidiaries), (iii) any Subsidiary Funded Debt incurred or assumed by one or more Subsidiaries as a result of the acquisition (including new construction) of additional vessels or other assets by such Subsidiaries where such Subsidiaries' Funded Debt is cross-collateralized shall be counted only once in respect of such Subsidiaries and (iv) any Subsidiary Funded Debt as to which a Subsidiary is not actually liable shall not be included; and (xii) Negative Pledge. Sell, encumber or otherwise transfer, or permit any Subsidiary to sell, encumber or otherwise transfer, any of its Vessels or any of the right, title or interest of any thereof therein, assign, pledge or otherwise encumber any earnings of, insurances covering or requisition compensation in respect of, any of its Vessels or sell, assign, pledge or otherwise transfer or encumber 41 any of the shares of stock of any of the Subsidiaries directly or indirectly legally or beneficially owned by the Borrower, unless after giving effect to any such sale, assignment, pledge, transfer or other encumbrance, the Borrower is in compliance with Section 10.1(a)(xvi) and its other covenants and no Event of Default shall have occurred and be continuing. SECTION 11. ASSIGNMENT AND PARTICIPATIONS ----------------------------- This Agreement shall be binding upon, and inure to the benefit of, the Borrower, each of the Agents and the Lenders and their respective successors and assigns, except that the Borrower may not assign any of its rights or obligations hereunder without the prior written consent of the Lenders. In giving any consent as aforesaid to any assignment by the Borrower, the Lenders shall be entitled to impose such conditions as they shall deem advisable. Any Lender shall be entitled to assign the whole or any part of its rights or obligations under this Agreement or grant participation(s) in the Credit Facility to any subsidiary or holding company of such Lender, to any subsidiary company of any thereof or, in the absence of an Event of Default, with the consent of the Borrower and the Administrative Agent (in each case not to be unreasonably withheld) to any other bank or financial institution regularly engaged in commercial lending and such Lender shall forthwith give notice of any such assignment or participation to the Administrative Agent and the Borrower, provided, however, that any such assignment or participation shall be in a minimum amount of Ten Million Dollars ($10,000,000), (a) any such assignment to a Lender is to be made pursuant to an Assignment and Assumption Agreement substantially in the form of Exhibit 6 hereto, and (b) except as provided in Sections 14.3, no such assignment or participation will result in any additional costs to, or additional material requirements on, the Borrower. The Borrower will take all reasonable actions requested by the Lenders to effect such assignment, including, without limitation, the execution of a written consent to such Assignment and Assumption Agreement. Anything contained in this Section 11 to the contrary notwithstanding, any Lender may at any time pledge all or any portion of its interest and rights under this Agreement (including all or any portion of any Notes) to any of the twelve Federal Reserve Banks organized under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341. No such pledge or the enforcement thereof shall release the pledgor Lender from its obligations hereunder. SECTION 12. ILLEGALITY, INCREASED COST, NON-AVAILABILITY, ETC. ------------------------------------------------- 12.1. Illegality. In the event that by reason of any change in any applicable law, regulation or regulatory requirement or in the interpretation thereof a Lender has a reasonable basis to conclude that it has become unlawful for such Lender to maintain or give effect to its obligations as contemplated by this Agreement, the Lender shall inform the Borrower and the Administrative Agent to that effect, whereafter the liability of such Lender to make its Commitment available shall forthwith cease and the Borrower shall be required either to prepay to such Lender any portion of the then outstanding Advances owing to such Lender immediately or, if such Lender so agrees, to prepay such portion of the outstanding Advances to such Lender on the last day of the then current Interest Period or Periods, in accordance with and subject to the provisions of Section 12.6 and to pay to the Administrative Agent sufficient amounts of cash to fund any possible drawings under Letters of Credit then in 42 existence, such amounts to be repaid to the Borrower to the extent not utilized to cover Letter of Credit drawings. In any such event, but without prejudice to the aforesaid obligations of the Borrower to prepay the outstanding Advances or part thereof and fund any possible drawings under Letters of Credit then in existence, the Borrower and such Lender shall negotiate in good faith with a view to agreeing on terms for making the Commitment available from another jurisdiction or otherwise restructuring the Commitment on a basis which is not unlawful. 12.2. Increased Cost. If any change in applicable law, regulation or regulatory requirement or in the interpretation or application thereof by any governmental or other authority, shall: (i) subject a Lender to any Taxes with respect to its income from the Credit Facility or any part thereof, or (ii) change the basis of taxation to a Lender of payments of principal or interest or any other payment due or to become due pursuant to this Agreement (other than a change in the basis effected by the jurisdiction of incorporation of such Lender or the domicile of the Lender's office through which the Lender's Commitment is made or any governmental subdivision or other taxing authority having jurisdiction over such Lender (unless such jurisdiction is asserted solely by reason of the activities of the Borrower or any of the Subsidiaries) or such other jurisdiction where the Credit Facility may be payable), or (iii) impose, modify or deem applicable any reserve requirements or require the making of any special deposits against or in respect of any assets or liabilities of, deposits with or for the account of, or loans by, any Lender, or (iv) impose on any Lender any other condition affecting the Commitment or any portion of any Advance thereunder, and the result of the foregoing is either to increase the cost to such Lender of making available or maintaining its Commitment or to reduce the amount of any payment received by such Lender then and in any such case if such increase or reduction in the opinion of such Lender materially affects the interests of such Lender under or in connection with this Agreement: (a) such Lender shall notify the Borrower and the Administrative Agent of the happening of such event, (b) the Borrower agrees forthwith upon demand to pay to such Lender such amount as such Lender certifies to be necessary to compensate such Lender for such additional cost or such reduction, and 43 (c) any such demand as is referred to in sub-section (b) of this Section 12.2 may be made by such Lender at any time before or after any repayment of the Advances. 12.3. Replacement of Lender or Participant. If the obligation of any Lender to make its pro rata share of any Advance has been suspended or terminated pursuant to Section 11, or if any Lender shall notify the Borrower of the happening of any event leading to increased costs as described in Section 12.2, the Borrower shall have the right, upon twenty (20) Banking Days' prior written notice to such Lender, to cause one or more banks (a "Replacement Lender (s)") (which may be one or more of the Lender), each such Replacement Lender to be satisfactory to the Majority Lenders (determined for this purpose as if such transferor Lender had no Commitment and held no interest in the Note issued to it hereunder) and, in each case, with the written acknowledgment of the Administrative Agent, to purchase such Lender's pro rata share of the Advances and assume the Commitment of such Lender pursuant to an Assignment and Assumption Agreement. If one or more such banks are identified by the Borrower and approved as being reasonably satisfactory to the Majority Lenders (determined as provided above), the transferor Lender shall consent to such sale and assumption by executing and delivering an Assignment and Assumption Agreement. Upon execution and delivery of an Assignment and Assumption Agreement by the Borrower, the transferor Lender, the Replacement Lender and the Administrative Agent, and payment by the Replacement Lender to the transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Replacement Lender, such Replacement Lender shall become a Lender party to this Agreement (if it is not already a party hereto as applicable) and shall have all the rights and obligations of a Lender with a Commitment (which, if such Replacement Lender is already a party hereto, shall take into account such Replacement Lender's then existing Commitment hereunder) as set forth in such Assignment and Assumption Agreement and the transferor Lender shall be released from its obligations hereunder and no further consent or action by any other Person shall be required. In the event no Replacement Lender is found or is satisfactory to the Majority Lenders, the Borrower shall have the right to request a permanent reduction of the Committed Amount by reducing the whole of such Lender's commitment, provided that (a) the Administrative Agent and the Lender's whose Commitment the Borrower seeks to reduce receive ten (10) Banking Days prior written notice of such request and (b) such reduction occurs on the last day of the applicable Interest Period(s) for Advances (or portions thereof) outstanding under this Agreement. Upon such reduction, the reduced Lender shall be released from its obligations hereunder and no further action by any Person shall be required and the new participation percentages (as designated in Schedule A hereto) shall be assigned to the remaining Lenders on a pro rata basis based on their respective Commitments. In the event that the Administrative Agent, in its capacity as a Lender, is required to sell its pro rata share of the Advances and its Commitment hereunder pursuant to this Section 12.3, the Administrative Agent shall, promptly upon the consummation of any assignment pursuant to this Section 12.3, resign as Administrative Agent hereunder and the Borrowers shall (subject to the consent of the Majority Lenders) have the right to appoint another Agent as successor Administrative Agent, all in accordance with Section 16.12. 44 12.4. Non-availability of Funds. If the Administrative Agent shall determine that, by reason of circumstances affecting the London Interbank Market generally, adequate and reasonable means do not or will not exist for ascertaining the Applicable Rate for any Interest Period, the Administrative Agent shall give notice of such determination to the Borrower. The Borrower and the Lenders shall then negotiate in good faith in order to agree upon a mutually agreeable basis for funding the Advance or Advances in question, and/or for determining the interest rate and/or Interest Period(s) to be substituted for those which would otherwise have applied under this Agreement. If the Borrower and the Lenders are unable to agree upon such a substituted funding base, interest rate and/or Interest Period(s) within thirty (30) days of the giving of such notice, the Borrower shall repay the Credit Facility, or the relevant portion thereof, as the case may be, to the Lenders immediately; provided, however, that if the Borrower fails to make such repayment, the Lenders shall determine a funding basis, set an interest rate and/or set an Interest Period(s), as the case may be, all to take effect from the expiration of the relevant Interest Period(s) in effect at the date of said determination notice, which rate shall be equal to the aggregate of the Margin and the cost to the Lenders of funding the relevant Advance or Advances. 12.5. Determination of Losses. A certificate or determination notice of the Agents and the Lenders as to any of the matters referred to in this Section 12, absent manifest error, shall be conclusive and binding on the Borrower. 12.6. Compensation for Losses. Where the Advances are to be prepaid by the Borrower pursuant to Section 12.1 the Borrower agrees simultaneously with such prepayment to pay to the relevant Lender all accrued interest to the date of actual payment and all other sums payable by the Borrower to such Lender pursuant to this Agreement, together with such amounts as may be certified by such Lender to be necessary to compensate such Lender for any actual loss, premium or penalties incurred or to be incurred by it on account of funds borrowed to make, fund or maintain its Commitment for the remainder (if any) of the then current Interest Period or Periods, if any, but otherwise without penalty or premium. SECTION 13. CURRENCY INDEMNITY ------------------ 13.1. Currency Conversion. If for the purpose of obtaining or enforcing a judgment in any court in any country it becomes necessary to convert into any other currency (the "judgment currency") an amount due in Dollars or a particular Foreign Currency, as the case may be, under this Agreement or under the Notes, then the conversion shall be made, in the discretion of the Administrative Agent, at the rate of exchange prevailing either on the date of default or on the day before the day on which the judgment is given or the order for enforcement is made, as the case may be (the "conversion date"), provided that the Administrative Agent shall not be entitled to recover under this section any amount in the judgment currency which exceeds at the conversion date the amount in Dollars or the relevant Foreign Currency, as the case may be, due under this Agreement and/or under the Notes. 13.2. Change in Exchange Rate. If there is a change in the rate of exchange prevailing between the conversion date and the date of actual payment of the amount due, the Borrower shall pay such additional amounts (if any, but 45 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 under the Notes in Dollars or the relevant Foreign Currency; any excess over the amount due received or collected by the Lenders shall be remitted to the Borrower. 13.3. Additional Debt Due. Any amount due from the Borrower under Section 13.2 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 under or in respect of the Notes. 13.4. Rate of Exchange. The term "rate of exchange" in this Section 13 means the rate at which the Administrative Agent in accordance with its normal practices is able on the relevant date to purchase Dollars or the relevant Foreign Currency with the judgment currency and includes any premium and costs of exchange payable in connection with such purchase. SECTION 14. FEES AND EXPENSES ----------------- 14.1. Commitment Fee. (a) The Borrower shall pay to the Administrative Agent, for distribution to the Lenders, a commitment fee in Dollars, payable quarterly in arrears, computed at the relevant rates per annum applicable pursuant to this Section 14.1 (the "Commitment Fee Rate(s)") on the average unfunded portion of the Committed Amount (valued in Dollars) during such quarter. The commitment fee shall accrue from the date hereof and shall terminate on the Termination Date. Said fee shall be payable quarterly in arrears at the end of each calendar quarter. Such commitment fee shall be calculated on the basis of actual days elapsed over a 360 day year. (b) The Commitment Fee Rates, as determined from time to time by the Administrative Agent as provided herein, shall vary based upon (a) the Borrower's credit rating as determined by S&P and Moody's, or (b) if the Borrower is no longer rated, the ratio of the Borrower's consolidated Funded Debt to the consolidated EBITDA for the Borrower, as follows:
-------------------------------------------------------------------------------------------------------------------------------- Commitment Fee Rate Credit Rating Funded Debt/EBITDA -------------------------------------------------------------------------------------------------------------------------------- 17.5 bp A-/A3 Less than or equal to 0.75 -------------------------------------------------------------------------------------------------------------------------------- 20.0 bp BBB+/Baa1 greater than 0.75, but less than or equal to 1.50 -------------------------------------------------------------------------------------------------------------------------------- 25.0 bp BBB/Baa2 greater than 1.50, but less than or equal to 2.25 -------------------------------------------------------------------------------------------------------------------------------- 32.5 bp BBB-/Baa3 greater than 2.25, but less than or equal to 3.0 -------------------------------------------------------------------------------------------------------------------------------- 40.0 bp BB+/Ba1 greater than 3.0, but less than or equal to 4.0 -------------------------------------------------------------------------------------------------------------------------------- 65.0 bp Less than BB+/Ba1 greater than 4.0 --------------------------------------------------------------------------------------------------------------------------------
46 For purposes of determining the applicable Commitment Fee Rate(s), in the case of a split rating in the respective credit ratings of the Borrower by Moody's and S&P the higher of the two ratings shall apply. In the event of a split rating of more than one level, the rating which is one level above the lower rating shall apply. The applicable Commitment Fee Rate(s) shall be determined by the Administrative Agent quarterly (based upon the latest 10Q report or 10K report and Compliance Certificate delivered by the Borrower to the Administrative Agent from time to time pursuant to this Agreement). The newly determined Commitment Fee Rate(s) shall be effective on the on the last day of the month following the month during which such report was delivered to the Administrative Agent. 14.2. Letter of Credit and Facing Fees and Related Charges. In addition, the Borrower shall pay to the Administrative Agent, for distribution to the Lenders, a fee in Dollars in respect of each Letter of Credit (the "Letter of Credit Fee") computed at a rate per annum equal to the Applicable Margin in effect from time to time on the daily Stated Amount of such Letter of Credit as reduced by any drawings thereunder. The Borrower further agrees to pay to each Letter of Credit Issuer, commencing at such time, a fee in Dollars in respect of each Letter of Credit (the "Facing Fee") computed at a rate per annum equal to one-eighth of one percent (1/8%) on the daily Stated Amount of such Letter of Credit as reduced by any drawings thereunder. Accrued Letter of Credit and Facing Fees shall be calculated on the basis of actual days elapsed over a 360 day year and shall be due and payable quarterly in arrears on the first day of each October, January, April and July of each year the Credit Facility remains outstanding and on the Termination Date. The Borrower also agrees to pay to the Letter of Credit Issuer all customary issuing and handling fees of the Letter of Credit Issuer in connection with its issuance of Letters of Credit. 14.3. Administrative Fee. The Borrower shall also pay to the Administrative Agent an annual agency fee of Five Thousand Dollars ($5,000) for each additional Lender other than the Agents which acquires a participation or syndicated interest in the Credit Facility up to a maximum of Fifty Thousand Dollars ($50,000) payable in advance, commencing upon the date on which each such additional Lender acquires such participation or syndicated interest in the Credit Facility and annually beginning from the date hereof. 14.4. Agents' Other Fees. The Borrower shall pay to the Agents, for their own account, such fees as shall have been agreed in accordance with the letter agreement dated October 26, 2001 between the Borrower and the Agents. 14.5. Costs, Charges and Expenses. The Borrower agrees to pay the Agents and the Lenders upon demand (whether or not the Credit Facility or any part thereof is made available hereunder) all reasonable costs, charges and expenses (including legal fees, limited to those of Seward & Kissel LLP, and expenses, as well as travel expenses of the Agents and the Lenders) incurred by the Agents and the Lenders in connection with the negotiation, preparation, syndication, execution and enforcement or attempted enforcement of this Agreement, the Notes or otherwise in connection with the Credit Facility, as 47 well as in connection with any supplements, amendments, assignments, waivers or consents relating thereto. 14.6. Indemnification. Neither any Agent nor any Lender nor any director, officer, agent or employee of any thereof shall be liable to the Borrower for any action taken or not taken by it in connection herewith in the absence of its own gross negligence or willful misconduct. The Borrower hereby agrees to indemnify each of the Agents and the Lenders, their respective affiliates and the respective directors, officers, agents and employees of the foregoing (each an "Indemnitee") and hold each Indemnitee harmless from and against any and all liabilities, losses, damages, costs and expenses of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which may be imposed on, incurred by or asserted against, any Indemnitee in any way relating to or arising out of this Agreement and the Notes or any action taken or omitted by any Indemnitee hereunder or thereunder provided that (i) no Indemnitee shall have the right to be indemnified hereunder for such Indemnitee's own gross negligence or willful misconduct and (ii) to the extent permitted by law, the Indemnitee shall provide the Borrower with prompt notice, but not later than sixty (60) days after it becomes aware, of any claim giving rise to any such indemnified liability. SECTION 15. APPLICABLE LAW, JURISDICTION AND WAIVER --------------------------------------- 15.1. Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. 15.2. Jurisdiction. The Borrower hereby irrevocably submits to the jurisdiction of the courts of the State of New York and of the United States District Court for the Southern District of New York in any action or proceeding brought against it by the Agents and the Lenders under this Agreement or under any document delivered hereunder and the Borrower hereby irrevocably appoints SEACOR Management Services Inc. with an office at 1370 Avenue of the Americas, New York, New York, its attorney-in-fact and agent for service of summons or other legal process thereon, which service may be made by serving a copy of any summons or other legal process in any such action or proceeding on such agent and such agent is hereby authorized and directed to accept by and on behalf of the Borrower service of summons and other legal process of any such action or proceeding against the Borrower. The service, as herein provided, of such summons or other legal process in any such action or proceeding shall be deemed personal service and accepted by the Borrower as such, and shall be legal and binding upon the Borrower for all the purposes of any such action or proceeding. Final judgment (a certified or exemplified copy of which shall be conclusive evidence of the fact and of the amount of any indebtedness of a Borrower to any Agent or Lender) against the Borrower in any such legal action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment. The Borrower will advise the Administrative Agent promptly of any change of address of the foregoing agent or of the substitution of another agent therefor. In the event that the foregoing agent or any other agent appointed by the Borrower shall not be conveniently available for such service or if the Borrower fails to maintain an agent as provided herein, the Borrower hereby irrevocably appoints the person who then is the Secretary of State of the State of New York as such attorney-in-fact and agent. The Borrower will advise the foregoing agent of the appointment made hereby, but failure to so advise shall 48 not affect the appointment made hereby. Notwithstanding anything herein to the contrary, the Agents and the Lenders may bring any legal action or proceeding in any other appropriate jurisdiction. 15.3. Waiver of Jury Trial. IT IS MUTUALLY AGREED BY AND AMONG THE BORROWER, AND THE AGENTS AND THE LENDERS THAT EACH OF THEM HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE NOTES. SECTION 16. THE AGENTS ---------- 16.1. Appointment of Agents. Each of the Lenders hereby irrevocably appoints and authorizes each Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and under the Notes as are delegated to such Agent by the terms hereof and thereof. Neither the Agents nor any of their respective directors, officers, employees or agents shall be liable for any action taken or omitted to be taken by it or them under this Agreement and under the Notes or in connection therewith, except for its or their own gross negligence or willful misconduct. 16.2. Distribution of Payments. Whenever any payment is received by the Administrative Agent from the Borrower for the account of the Lenders, or any of them, whether of principal or interest on the Notes, commissions, commitment fees under Section 14.1, or otherwise, it will thereafter cause like funds relating to such payment to be promptly distributed ratably to the Lenders according to their respective Commitments, in each case to be applied according to the terms of this Agreement. 16.3. Holder of Interest in Notes. The Administrative Agent may treat each Lender as the holder of all of the interest of such Lender in its Notes unless and until the Administrative Agent has received a copy of an Assignment and Assumption Agreement evidencing the transfer of all or any part of such Lender's interest in the Credit Facility. 16.4. No Duty to Examine, Etc. The Agents shall not be under a duty to examine or pass upon the validity, effectiveness or genuineness of this Agreement, the Notes or any instrument, document or communication furnished pursuant to this Agreement or the Notes or in connection with any thereof and the Agents shall be entitled to assume that the same are valid, effective and genuine, have been signed or sent by the proper parties and are what they purport to be. 16.5. Agents as Lenders. With respect to that portion of the Credit Facility made available by it, each Agent shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not an Agent, and the term "Lender" or "Lenders" shall include the Agents in their capacity as Lenders. Each Agent and its affiliates may accept deposits from, lend money to and generally engage in any kind of business with, the Borrower as if it were not an Agent. 49 16.6. (a) Obligations of Agents. The obligations of each Agent under this Agreement and under the Notes are only those expressly set forth herein and therein. (b) No Duty to Investigate. No Agent shall at any time be under any duty to investigate whether an Event of Default, or an event which with the giving of notice or lapse of time, or both, would constitute an Event of Default, has occurred or to investigate the performance of this Agreement and the Notes by the Borrower. (c) Reports and Notices. Promptly upon receipt thereof by the Administrative Agent, the Administrative Agent shall furnish each Lender with a copy of all financial reports and notices delivered to it by the Borrower hereunder. 16.7. (a) Discretion of Agents. Each Agent shall be entitled to use its discretion with respect to exercising or refraining from exercising any rights which may be vested in it by, and with respect to taking or refraining from taking any action or actions which it may be able to take under or in respect of, this Agreement and the Notes, unless such Agent shall have been instructed by the Majority Lenders to exercise such rights or to take or refrain from taking such action; provided, however, that such Agent shall not be required to take any action which exposes such Agent to personal liability or which is contrary to this Agreement or applicable law. (b) Instructions of Majority Lenders. Each Agent shall in all cases be fully protected in acting or refraining from acting under this Agreement and under the Notes in accordance with the instructions of the Majority Lenders (or, where expressly required hereby, all the Lenders), and any action taken or failure to act pursuant to such instructions shall be binding on all of the Lenders. 16.8. Assumption re Event of Default. Except as otherwise provided in Section 16.4, the Administrative Agent shall be entitled to assume that no Event of Default, or event which with the giving of notice or lapse of time, or both, would constitute an Event of Default, has occurred and is continuing, unless the Administrative Agent has been notified by the Borrower of such fact or has been notified by a Lender that such Lender considers that an Event of Default or such an event (specifying in detail the nature thereof) has occurred and is continuing. In the event that the Administrative Agent shall have been notified by any party in the manner set forth in the preceding sentence of any Event of Default or of an event which with the giving of notice or lapse of time, or both, would constitute an Event of Default, the Administrative Agent shall notify the Lenders and shall take action and assert such rights under this Agreement or the Notes as the Majority Lenders shall request in writing. 16.9. No Liability of Agents and the Lenders. No Agent or Lender shall be under any liability or responsibility whatsoever: (a) to the Borrower or any other person or entity as a consequence of any failure or delay in performance by, or any breach by, any other Lender or any other person of any of its or their obligations under this Agreement or under the Notes; 50 (b) to any Lender or Lenders as a consequence of any failure or delay in performance by, or any breach by the Borrower of any of its obligations under this Agreement or under the Notes; or (c) to any Lender or Lenders for any statements, representations or warranties contained in this Agreement or in the Notes or in any document or instrument delivered in connection with the transaction hereby contemplated; or for the validity, effectiveness, enforceability or sufficiency of this Agreement and the Notes or any document or instrument delivered in connection with the transactions hereby contemplated. 16.10. Indemnification of Agents. The Lenders agree to indemnify each Agent (to the extent not reimbursed by the Borrower), pro rata according to the respective amounts of their Commitments, from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including reasonable legal fees and expenses incurred in investigating claims and defending itself against such liabilities) which may be imposed on, incurred by or asserted against, such Agent in any way relating to or arising out of this Agreement and the Notes, any action taken or omitted by such Agent hereunder or thereunder or the preparation, administration, amendment or enforcement of, or waiver of any provision of, this Agreement and the Notes, except that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent's gross negligence or willful misconduct. 16.11. Consultation with Counsel. Each Agent may consult with legal counsel selected by such Agent and shall not be liable for any action taken, permitted or omitted by it in good faith in accordance with the advice or opinion of such counsel. 16.12. Resignation. Each Agent may resign at any time by giving sixty (60) days' written notice thereof to the Lenders and the Borrower. Upon any such resignation, the Lenders shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by the Lenders and shall have accepted such appointment within sixty (60) days after the retiring Agent's giving notice of resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a bank or trust company of recognized standing. The appointment of any successor Agent shall (unless an Event of Default has occurred and is continuing) be subject to the prior written consent of the Borrower, such consent not to be unreasonably withheld. After any retiring Agent's resignation as Agent hereunder, the provisions of this Section 16 shall continue in effect for its benefit with respect to any actions taken or omitted by it while acting as Agent. 16.13. Representations of Lenders. Each Lender represents and warrants to each other Lender and each Agent that: (i) in making its decision to enter into this Agreement and to make its Commitment available hereunder, it has independently taken whatever steps it considers necessary to evaluate the financial condition and affairs of the Borrower, that it has made an 51 independent credit judgment and that it has not relied upon any statement, representation or warranty by any other Lender or any Agent; and (ii) So long as any portion of its Commitment remains outstanding, it will continue to make its own independent evaluation of the financial condition and affairs of the Borrower. 16.14. Notification of Event of Default. The Administrative Agent hereby undertakes promptly to notify the Lenders, and each of the Lenders hereby undertakes promptly to notify the Administrative Agent and the other Lenders, of the existence of any Event of Default which shall have occurred and be continuing of which the Administrative Agent or such Lender has actual knowledge. SECTION 17. NOTICES AND DEMANDS 17.1. Notices in Writing. Every notice or demand under this Agreement shall be in writing and may be given or made by telecopy. 17.2. Addresses for Notice. Every notice or demand shall be sent, if to the Borrower or the Administrative Agent, at the address set forth below and, if to the Lenders at their address and telecopy numbers set forth in Schedule A or at such other address or telecopy numbers as such party may hereafter specify for the purpose by notice to each other party hereto. Any notices addressed to the Borrower shall be sent as follows: c/o SEACOR Management Services Inc. 1370 Avenue of the Americas, 25th floor New York, New York 10019 Telecopy No.: (212) 582-8522 Any notices addressed to the Administrative Agent shall be sent as follows: 200 PARK AVENUE New York, New York 10166-0396 Telecopy No.: (212) 681-3900 Any notice sent by telecopy shall be confirmed by letter dispatched as soon as practicable thereafter. 17.3. Notices Deemed Received. Every notice or demand shall, except so far as otherwise expressly provided by this Agreement, be deemed to have been received (provided that it is received prior to 2 p.m. New York time; otherwise it shall be deemed to have been received on the next following Banking Day), in the case of a telecopy at the time of dispatch thereof (provided further that if the date of dispatch is not a Banking Day in the locality of the party to whom 52 such notice or demand is sent it shall be deemed to have been received on the next following Banking Day in such locality) and, in the case of a letter, at the time of receipt thereof. SECTION 18. MISCELLANEOUS 18.1. Time of Essence. Time is of the essence of this Agreement but no failure or delay on the part of the Agents and the Lenders to exercise any power or right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by the Agents and the Lenders of any power or right hereunder preclude any other or further exercise thereof or the exercise of any other power or right. The remedies provided herein are cumulative and are not exclusive of any remedies provided by law. 18.2. Unenforceable, etc.; Provisions - Effect. In case any one or more of the provisions contained in this Agreement or in the Notes would, if given effect, (i) cause such of the Borrower or any of the Subsidiaries, as the case may be, which owns United States flag vessels to cease to be a citizen of the United States within the meaning of Section 2 of the United States Shipping Act 1916, as amended, or cause a transfer of any of the Vessels registered under the laws and flag of the United States of America in violation of Section 9 of said Act or (ii) be otherwise invalid, illegal or unenforceable in any respect under any law applicable in any relevant jurisdiction, said provision shall not be enforceable against the Borrower or any of the Subsidiaries, as the case may be, but the validity, legality and enforceability of the remaining provisions herein or therein contained shall not in any way be affected or impaired thereby. 18.3. References. References herein to Sections and Schedules are to be construed as references to sections of, and schedules to, this Agreement. 18.4. Further Assurances. The Borrower agrees that if this Agreement or the Notes shall at any time be deemed by the Administrative Agent for any reason insufficient in whole or in part to carry out the true intent and spirit hereof or thereof, it will execute or cause to be executed such other and further assurances and documents as in the opinion of the Administrative Agent may be required in order more effectively to accomplish the purposes of this Agreement and the Notes. 18.5. Entire Agreement; Amendments. This Agreement, the Notes and the letter agreement referred to in Section 14.4 constitute the entire agreement of the parties hereto, including all parties added hereto pursuant to an Assignment and Assumption Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Any provision of this Agreement or the Notes may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Borrower and the Majority Lenders (and, if the rights or duties of the Administrative Agent are affected thereby, by the Administrative Agent); provided that no amendment or waiver shall, unless signed by all the Lenders, (i) increase or decrease the Commitment of any Lender or subject any Lender to any additional obligation other than those set forth herein, (ii) reduce the principal of or rate of interest on the Credit Facility or any fees hereunder, (iii) postpone the date fixed for any payment of principal of or interest on the Loan or any fees hereunder, (iv) amend Section 11, (v) waive any condition precedent to the 53 availability of the Credit Facility or any Advance thereunder, (vi) amend or modify this Section 18.5 or (vii) change the definition of "Majority Lenders". 18.6. Adjustments. If any Lender (a "Benefitted Lender") shall at any time receive any payment of all or any part of the Advances made by such Lender, or interest thereon, or receive any collateral in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 9.1(i) or (k), or otherwise) in a greater proportion than any such payment to and collateral received by any other Lender in respect of such other Lender's Advances, or interest thereon, such Benefitted Lender shall purchase for cash from each of the other Lenders such portion of each such other Lender's Advances, and shall provide each of such other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be necessary to cause such Benefitted Lender to share the excess payment or benefits of such collateral or proceeds ratably with each of the Lenders, provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. The Borrower agrees that each Lender so purchasing a portion of another Lender's Borrowings may exercise all rights of payment (including, without limitation, rights of set-off, to the extent not prohibited by law) with respect to such portion as fully as if such Lender were the direct holder of such portion. 54 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. SEACOR SMIT INC., FLEET NATIONAL BANK, as Borrower as Syndication Agent, Joint Lead Arranger and Lender By_______________________________ By_______________________________ Name : Name : Title: Title: DEN NORSKE BANK ASA, NORDEA, acting through Nordea Bank Finland Plc, New York Branch as Administrative Agent, Joint Lead Arranger as Documentation Agent, Joint Lead Arranger and Lender and Lender By_______________________________ By_______________________________ Name : Name : Title: Title: By_______________________________ By_______________________________ Name : Name : Title: Title: THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND BANK ONE, NA as Co-Agent and Lender as Lender By_______________________________ Name : By_______________________________ Title: Name : Title: HAMBURGISCHE LANDESBANK -GIROZENTRALE- WHITNEY NATIONAL BANK as Lender as Lender By_______________________________ Name : By_______________________________ Title: Name : Title: By_______________________________ Name : Title:
SCHEDULE A ---------- PARTICULARS OF LENDERS ----------------------
Participation Name and Address Commitment Percentage ---------------- ---------- ---------- Den norske Bank ASA $43,125,000 21.5625% 200 Park Avenue New York, NY 10166-0396 U.S.A Fleet National Bank $43,125,000 21.5625% Transportation Division MA DE 10008D 100 Federal Street Boston, MA 02110 U.S.A. Nordea , acting through $30,000,000 15.0000% Nordea Bank Finland Plc, New York Branch 11 West 42nd Street, 7th Floor New York, N.Y. 10036 U.S.A. The Governor and Company $28,750,000 14.3750% of the Bank of Scotland New Uberior House 11 Earl Grey Street, 2nd Floor Edinburgh EH3 9BN Scotland Participation Name and Address Commitment Percentage ---------------- ---------- ---------- Hamburgische Landesbank $25,000,000 12.5000% -Girozentrale- Gerhart-Hauptmann Platz 50 D-20095 Hamburg Federal Republic of Germany Bank One, NA $15,000,000 7.5000% 201 St. Charles Ave. Mail Code LA3-5268 New Orleans, LA 70170 Whitney National Bank $15,000,000 7.5000% 228 St. Charles Ave. New Orleans, LA 70130
SCHEDULE B ---------- VESSEL OWNING/OPERATING SUBSIDIARIES AND OTHER SUBSIDIARIES ----------------------------------------------------------- (as of January 31, 2002) (Vessel Owning/Operating Subsidiaries are indicated by the symbol "O") SEACOR SMIT Inc. Acadian Supply Ships Inc. (100% interest)o Anna Offshore Inc. (100% interest)o C&C Boat Rentals (100% interest) CRN Holdings Inc. (100% interest) International Response Corporation (100% interest) Venezuelan Response Corporation, C.A. (100% interest) National Response Corporation (100% interest) National Response Corporation of Puerto Rico (100% interest) OSRV Holdings, Inc. (100% interest) NRC Services, Inc. (100% interest) Energy Logistics, Inc. (66% interest) Liberty Services, Inc. (100% interest) ERST/O'Brien's, Inc. (100% interest) ERST, Inc. (100% interest) O'Brien's Oil Pollution Services, Inc. (100% interest) F2B Investments Inc. (100% interest) G & B Marine Transportation, Inc. (100% interest) Galaxie Offshore Inc. (100% interest)o Gilbert Cheramie Boats, Inc. (100% interest) Gilco Supply Boats Inc. (100% interest) Graham Boats Inc. (100% interest)o Graham Marine Inc. (100% interest) Graham Offshore Inc. (100% interest)o Hampton Barge Line, Inc. (100% interest) Weston Barge Line, Inc. (100% interest) Inland River Towing (100% interest) McCall Enterprises, Inc. (100% interest) Cameron Boat Rentals, Inc. (100% interest)o Gladys McCall, Inc. (100% interest)o Cameron Crews, Inc. (100% interest) Carroll McCall, Inc. (100% interest)o Gulf Marine Transportation Inc. (100% interest)o McCall's Boat Rentals, Inc. (100% interest)o McCall Crewboats, L.L.C. (50% interest) McCall Marine Services, Inc. (100% interest)o Philip Allan McCall, Inc. (100% interest)o McCall Support Vessels, Inc. (100% interest) McCall Crewboats, L.L.C. (50% interest) SEAMAC Offshore L.L.C. (50% interest) Offshore Aviation Inc. (100% interest) N.F. McCall Crews, Inc. (100% interest) Plaisance Marine Inc. (100% interest) SCF Barge Line II (100% interest) SCF Management Services Inc. (100% interest) SCF Marine Inc. (100% interest) SCF Transportation, Inc. (100% interest) SCF Towing Corporation (100% interest) SEACOR Bulk Carriers Inc. (100% interest) SEACOR Capital (Singapore) Pte. (100% interest) SEACOR Capital (UK) Ltd. (100% interest) Boston Putford Offshore Safety Ltd. (100% interest) Putford Ltd. (100% interest) Southern Crewing Services Ltd. (100% interest) Warbler Shipping Ltd. (100% interest) SEACOR Capital Corporation (100% interest) SEACOR Capital Two Ltd. (100% interest) SEACOR Communications Inc. SEACOR International Chartering Ltd. (100% interest) SEACOR International Ltd. (100% interest) SEACOR Management Services Inc. (100% interest) SEACOR Marine (Asia) Pte. Ltd. (100% interest) SEACOR Marine (Bahamas) Inc. (100% interest) SEACOR Marine (Nigeria) Inc. (100% interest)o West Africa Offshore Ltd. (40% interest) SEACOR Marine (IOM) Ltd. (100% interest) SEACOR Marine (West Africa) SAS (100% interest) SEACOR Marine Inc. (100% interest)o Arthur Levy Enterprises, Inc. (100% interest)o SEACOR Deepwater 1, Inc. (49.71% interest)o SEACOR Marine (Europe) B.V. (100% interest) o SEAMAC Offshore L.L.C. (50% interest) SEACOR Marine International Inc. (100% interest)o SEACOR Marine (Mexico) Inc. (100% interest) SEACOR Ocean Support Services Inc. (100% interest)o SEACOR Ocean Lines Inc. (100% interest)o SEACOR Marine Management Ltd. (100% interest) SEACOR Ocean Boats Inc. (100% interest) SEACOR Offshore Inc. (100% interest)o SEACOR Deepwater 1, Inc. (50.29% interest)o SEACOR Deepwater 2, Inc. (100% interest)o SEACOR Deepwater 3, Inc. (100% interest)o SEACOR Offshore Rigs Inc. (100% interest) SEACOR Supply Ships Associates Inc. (100% interest)o SEACOR Worldwide Inc. (100% interest)o Coseamar Inc. (100% interest) SEACOR-SMIT Holdings B.V. (80% interest) SEACOR Offshore Supplyships One Ltd. (100% interest) SEACOR Offshore Supplyships Two Ltd. (100% interest) (in liquidation) SEACOR-SMIT Offshore I B.V. (100% interest)(in liquidation) SEACOR-SMIT Offshore II B.V. (100% interest)(in liquidation) SEACOR-SMIT Offshore (International) Inc. (100% interest) SEACOR-SMIT Holdings B.V. (10% interest) SEACOR-SMIT Offshore (International) Ltd. (100% interest)o SEACOR-SMIT Offshore (Worldwide) Ltd. (100% interest)o SEACOR-SMIT Offshore I Inc. (100% interest) SEACOR-SMIT Holdings B.V. (10% interest) SMIT Holdings Inc. (100% interest) Stirling Shipping Holdings Ltd. (100% interest) Stirling Shipping Company Ltd. (100% interest) Stirling Marine Ltd. (100% interest) Stirling Offshore Ltd. (100% interest) Stirling Shipmanagement (100% interest) Bruce Marine Ltd. (100% interest) Suffolk Barge Line Inc. (100% interest) VEESEA Holdings Inc. (98.9% interest) Gem Shipping Inc. (100% interest) Gem Shipping Ltd. (100% interest)o Storm Shipping Inc. (100% interest) Vector-Seacor Ltd. (100% interest) Vision Offshore Inc. (100% interest) SEACOR VISION LLC (75% interest)o
SCHEDULE C ---------- THE VESSELS ----------- VESSELS BY CLASS AS OF 12/31/2001
VSL/DEPT NAME CLASS LENGTH HP YR. BUILT RIGHTS Merou AHTS 195 8,000 1982 Owned Tiger Fish AHTS 195 8,000 1982 Owned Jade Fish AHTS 196 8,000 1982 Owned Isla Ballena AHTS 197 6,200 1984 JV Shin Niche Maru AHTS 198 4,000 1997 JV Isla de Cedros AHTS 198 6,140 1982 JV Smit-Lloyd 74 AHTS 198 6,000 1982 Owned Smit-Lloyd 120 AHTS 208 10,000 1983 Owned Smit-Lloyd 121 AHTS 208 10,000 1983 Owned Smit Curacao AHTS 210 8,000 1974 JV Smit-Lloyd 110 AHTS 210 8,000 1975 JV Seacor Lenga (ex Smit Lenga) AHTS 210 6,000 1982 JV Seacor Lilen AHTS 212 9,000 1985 JV Smit-Lloyd 90 AHTS 212 9,000 1985 Owned Stirling Sirius AHTS 213 9,180 1985 Owned Stirling Spica AHTS 213 9,180 1985 Owned Seacor Energy AHTS 216 6,140 1985 Owned Seacor Force AHTS 216 6,140 1985 Owned Seacor Star (ex Sea-Aker Star) AHTS 216 7,200 1978 Owned Seacor Valiant AHTS 220 8,000 1999 Owned Seacor Valor AHTS 220 8,000 1999 Owned Seacor Venture AHTS 220 8,000 2000 Owned Seacor Voyager AHTS 220 8,000 1999 Owned Seacor Vantage AHTS 221 12,280 1998 Owned Smit-Lloyd Sound AHTS 222 7,885 1983 Owned Smit-Lloyd Safe AHTS 222 9,280 1983 Owned Seacor Vision AHTS 225 12,280 1997 BB-in Smit-Lloyd 72 AHTS 238 6,000 1981 Owned Stirling Iona AHTS 242 15,000 2000 Owned Gerard Jordan AHTS 255 14,000 1998 Owned Seacor Vanguard AHTS 255 14,400 1998 BB-in TOTAL AHTS 31 Albert McCall Crew 110 2,100 1980 Owned Carroll McCall Crew 110 2,100 1979 Owned Henry McCall Crew 110 2,100 1979 Owned Joseph McCall Crew 110 2,100 1978 Owned Katherine McCall Crew 110 2,100 1980 Owned Pete McCall Crew 110 2,100 1979 JV Phyllis McCall Crew 110 2,100 1976 Owned Sybil McCall Crew 110 2,100 1982 Owned Kelly McCall Crew 110 2,400 1981 Owned William R. McCall Crew 110 2,720 1980 Owned Miss Mona Crew 120 2,040 1987 BB-in Joyce McCall II Crew 125 3,000 1981 Owned Miss Adrian Crew 130 2,040 1990 BB-in Miss Allie Crew 130 2,040 1989 Owned Miss Allison Crew 130 2,040 1990 Owned Miss Angela Crew 130 2,040 1991 BB-in Miss Anita Crew 130 2,040 1989 Owned Miss Anna Crew 130 2,040 1989 Owned Miss Beth Crew 130 2,040 1990 BB-in Miss Carissa Crew 130 2,040 1989 BB-in Miss Diane Crew 130 2,040 1988 BB-in Miss Ellen Crew 130 2,040 1989 Owned Miss Faye Crew 130 2,040 1991 BB-in Miss Freida Crew 130 2,040 1990 Owned Miss Gayla Crew 130 2,040 1988 Owned Miss Ina Crew 130 2,040 1990 Owned Miss Janice Crew 130 2,040 1991 Owned Miss Kathy Crew 130 2,040 1991 Owned Miss Margaret Crew 130 2,040 1990 Owned Miss Mary Ann Crew 130 2,040 1991 Owned Miss Maureen Crew 130 2,040 1988 BB-in Miss Melissa Crew 130 2,040 1990 Owned Miss Pam Crew 130 2,040 1990 Owned Miss Peggy Ann Crew 130 2,040 1989 Owned Miss Ramona Crew 130 2,040 1990 Owned Miss Susan Crew 130 2,040 1989 Owned Miss Sybil Crew 130 2,040 1988 JV Miss Velma Crew 130 2,040 1988 JV Stephanie McCall Crew 130 2,720 1991 Owned Sylvia F Crew 130 2,800 1990 Owned Madeleine McCall Crew 130 2,880 1990 Owned Beverly F Crew 135 2,700 1993 Owned Kevin McCall Crew 135 2,800 1994 Owned Phyllis McCall II Crew 135 2,800 1995 Owned Miss Kathryn Crew 135 3,160 1993 Owned Miss Pamela Crew 135 3,160 1994 BB-in Miss Pearl Crew 135 3,160 1993 Owned Miss Pearl Louise Crew 135 3,160 1994 BB-in Miss Amanda Crew 135 3,260 1995 Owned Green Ocean Crew 136 4,000 1993 JV Jill McCall Crew 143 3,200 1996 Owned Marilyn McCall Crew 143 3,200 1997 Owned Caleb McCall Crew 145 3,250 1985 Owned Paula McCall Crew 145 3,250 1984 Owned Tim McCall Crew 145 3,400 1991 Owned Adam McCall Crew 145 3,500 1994 Owned Carol Ann McCall Crew 145 3,500 1997 Owned Freda McCall Crew 145 3,500 1996 Owned Susan F McCall Crew 145 3,500 1999 Owned Jan F Crew 147 3,500 1995 Owned Sharon F Crew 148 3,500 1996 Owned Miss Darlene Crew 150 3,500 1998 BB-in Miss Vickie Crew 150 3,500 1998 Owned Pelican Glory Crew 151 4,400 1998 JV Pelican Pride Crew 151 5,600 1999 JV Pelican Venture Crew 151 5,600 1999 JV Pelican Vision Crew 151 6,120 1999 JV Blair McCall Crew 155 3,250 1987 Owned Pelican Challenge Crew 155 4,000 1998 JV Aaron McCall Crew 155 4,080 1988 Owned Linda F. Crew 155 6,750 2001 Owned Annabeth McCall Crew 160 4,080 1989 Owned Ashley Alyse McCall Crew 160 4,080 1991 Owned Billy McCall Crew 160 4,080 1990 Owned Deanne McCall Crew 160 4,080 1991 Owned Hilda McCall Crew 160 4,080 1997 BB-in Jered McCall Crew 160 4,080 1990 Owned Norman McCall Crew 160 4,080 1989 Owned Sam McCall Crew 160 4,080 1991 Owned Jason K. McCall Crew 160 6,750 2001 Owned Victor O. McCall Crew 160 6,750 2000 Owned Pelican Pursuer Crew 164 9,600 2001 JV Christine McCall Crew 165 5,400 1998 Owned Keith G. McCall Crew 165 7,200 2001 JV Milton R. McCall Crew 165 7,200 2001 Owned Pelican Champion Crew 165 9,496 2000 JV Charles F. McCall Crew 170 6,750 2000 Owned Sara F. McCall Crew 170 6,750 1999 Owned Doreen McCall Crew 180 8,100 1999 Owned John B.Martin McCall Crew 180 8,100 1998 Owned Phillip Alan McCall Crew 180 8,100 1999 Owned TOTAL CREW 91 Autry G Mini-Supply 126 1,200 1991 Owned Janson G Mini-Supply 126 1,200 1991 BB-In John Michael G Mini-Supply 126 1,200 1991 Owned Jim G Mini-Supply 126 1,440 1999 Owned Lloyd G Mini-Supply 126 1,440 1999 JV Louis G. (ex Harry Allen G.) Mini-Supply 130 1,350 1985 JV Mr. Benny Mini-Supply 135 1,200 1981 Owned Oaklawn Mini-Supply 135 1,200 1991 BB-in Joyce Mini-Supply 145 1,200 1995 Owned Erika Lynn Mini-Supply 145 1,520 1985 Owned Linda Mini-Supply 145 1,520 1991 Owned Mickey Gilbert Mini-Supply 145 1,520 1994 Owned Sea Horse I Mini-Supply 150 1,500 1997 Owned Sea Horse II Mini-Supply 150 1,500 1997 Owned Sea Horse III Mini-Supply 150 1,500 1998 Owned Sea Horse IV Mini-Supply 150 1,500 1998 Owned Sea Horse V Mini-Supply 150 1,500 1998 Owned Sea Horse VI Mini-Supply 150 1,500 2000 Owned Seacor Eagle Mini-Supply 150 1,500 2001 Owned Seacor Hawk Mini-Supply 150 1,500 2001 Owned Celeste Elizabeth Mini-Supply 150 1,520 1997 Owned Dean Andrew Mini-Supply 150 1,520 1998 Owned Emelie Ann Mini-Supply 150 1,520 1999 Owned Gary John Mini-Supply 150 1,520 1999 Owned Harry Joseph Mini-Supply 150 1,520 1999 Owned Hilton Joseph Mini-Supply 150 1,520 1997 Owned TOTAL MINI-SUPPLY 26 Ocean Shield Project 189 2,600 1981 JV Seacor Clipper Project-Freight 254 2,700 1983 Owned Seacor Surf Project-Geo 150 1,750 1982 Owned TOTAL OTHER 3 Britannia Harvester Standby 117 2,000 1971 Man-In Britannia Conquest Standby 117 2,000 1974 Man-In Britannia Monarch Standby 117 2,000 1973 Man-In Britannia Warrior Standby 118 2,000 1971 Man-In Black Watch Standby 118 1,222 1976 Man-In Putford Sky Standby 120 1,045 1967 Owned Putford Puffin Standby 134 1,439 1969 Owned Toisa Teal Standby 139 1,700 1980 Pool Toisa Widgeon Standby 139 1,700 1981 Pool/Man Putford Shore Standby 151 1,577 1967 Owned Putford Guardian Standby 152 1,971 1967 Owned Nova Standby 157 2,365 1969 Owned Putford Achates Standby 163 2,365 1976 Owned Putford Ajax Standby 163 2,365 1976 Owned Putford Sea Mussel Standby 167 2,465 1974 Owned Putford Apollo Standby 168 2,309 1975 Owned Putford Acasta Standby 171 3,351 1972 Owned Putford Athena Standby 176 6,077 1975 Owned Putford Artemis Standby 177 3,520 1975 Owned Putford Achilles Standby 178 4,140 1972 Owned Typhoon Standby 180 2,250 1976 Owned Toisa Petrel Standby 180 2,250 1977 Pool/Man Toisa Puffin Standby 180 2,260 1979 Pool/Man Putford Viking Standby 183 4,733 1976 JV Toisa Plover Standby 185 2,250 1983 Pool/Man Putford Trader Standby 189 4,000 1976 Owned Putford Rover Standby 191 7,655 1981 Owned Putford Worker Standby 200 3,158 1975 Owned Putford Aries Standby 202 4,800 1977 Owned Pearl Standby 215 6,166 1985 Owned TOTAL SBSV 30 Cameron Supply 166 1,800 1981 Owned Isla Clarion Supply 166 1,800 1982 JV Isla de Lobos Supply 166 1,800 1978 JV Seacor Anna Supply 166 1,800 1980 Owned Marmex I Supply 166 2,120 1979 JV Marmex III Supply 166 2,120 1980 JV Clay Ella Supply 167 2,400 2001 Owned Jean Gilbert Supply 167 2,400 2000 Owned Golfo de Mexico Supply 178 n.a. 1971 JV Dorado Supply 180 1,860 1982 Owned Smit-Lloyd 55 Supply 186 5,331 1988 Owned Astro Badejo Supply 187 2,400 1989 JV Seacor Sabre Supply 194 2,500 1998 BB-in Seacor Spirit Supply 197 3,900 1998 Owned Seacor Conquest Supply 204 4,200 1999 Owned Stirling Dee Supply 212 5,600 1985 Owned Stirling Esk Supply 214 5,600 1986 Owned Seacor Fortitude (ex BO30) Supply 217 3,600 1979 Owned Seacor Freedom (ex BO29) Supply 217 3,600 1980 Owned Discovery Island Supply 220 3,000 1991 BB-In Sun Island (ex BO26) Supply 220 3,000 1990 BB-in Avery Island Supply 220 3,900 1991 BB-in Galaxie Supply 220 3,900 1997 BB-in Seacor Alcina Supply 220 3,900 1998 Owned Stirling Vega Supply 223 5,080 1983 Owned Stirling Altair Supply 224 5,000 1985 Owned Stirling Capella Supply 226 5,080 1983 Owned Stirling Pegasus Supply 226 6,610 1992 Owned Smit-Lloyd Fame Supply 235 5,440 1995 Owned Smit-Lloyd Fortune Supply 235 5,440 1995 Owned Seacor Frontier Supply 248 3,600 1981 BB-in Seacor Glory Supply 251 5,000 1999 Owned Stirling Aquarius Supply 269 6,600 1991 Owned Stirling Spey Supply 272 6,596 1999 Owned Stirling Tay Supply 272 6,596 1998 Owned Stirling Clyde Supply 272 6,600 1996 Man-In Stirling Forth Supply 272 6,600 1996 Man-In TOTAL SUPPLY 37 Marmex VII Towing 125 4,460 1977 JV Coral Fish Towing 149 3,200 1981 Owned Laurel Towing 180 4,000 1974 JV Lingue Towing 180 4,000 1974 JV Luma Towing 180 4,000 1974 JV Ocean Suez Towing 180 3,600 1975 JV Isla Cozumel Towing 185 3,000 1978 JV Isla del Carmen Towing 185 3,000 1978 JV Isla Tiburon Towing 185 3,000 1978 JV Long Island Towing 185 3,000 1978 JV Isla Coronado Towing 185 3,900 1982 JV Isla Montague (ex Orca) Towing 185 3,900 1982 JV Narwhal Towing 185 3,900 1982 Owned Beryl Fish Towing 187 4,350 1983 Owned Pearl Fish Towing 187 4,350 1984 Owned Ocean Aswan Towing 188 4,500 1982 JV Ocean Luxor Towing 188 4,500 1983 JV Mako (ex SL 26) Towing 188 4,500 1982 Owned Moray (ex SL 31) Towing 188 4,500 1983 Owned Smit-Lloyd 25 Towing 188 4,500 1982 Owned Smit-Lloyd 27 Towing 188 4,500 1982 Owned Smit-Lloyd 28 Towing 188 4,500 1983 Owned Smit-Lloyd 32 Towing 188 4,500 1983 Owned Smit-Lloyd 33 Towing 188 4,500 1984 Owned Ocean Dirk Towing 189 4,200 1981 JV Ocean Drum Towing 189 4,200 1982 JV San Miguel Towing 190 4,400 1999 Owned Santa Cruz Towing 190 4,400 1999 Owned Smit-Lloyd 57 Towing 190 5,331 1987 Owned Isla Pelicano (ex Seacor Louisiana) Towing 195 6,140 1984 JV Seacor Texas Towing 195 6,140 1984 Owned Smit-Lloyd Matsas 1 Towing 196 3,000 1965 JV Smit-Lloyd Matsas 2 Towing 196 3,000 1966 JV Seacor Rebel Towing 198 3,900 1983 BB-in Parrot Fish Towing 199 5,300 1983 Owned Maria Corina Towing 200 5,226 1998 Owned Isla Guadalupe (ex Cynthia Marie) Towing 200 5,300 1998 JV Seacor Explorer Towing 200 5,300 2001 BB-in Seacor Navigator Towing 200 5,300 2001 Owned Seacor Argosy Towing 200 5,300 1998 Owned Seacor Power Towing 214 6,140 1983 Owned Seacor Yankee Towing 227 3,900 1982 BB-in TOTAL TOWING 42 Edison G Utility 96 680 1982 Owned Jimmie G Utility 96 680 1982 Owned Laurie G Utility 96 680 1979 Owned Adeline Utility 96 900 1982 Owned Sterling Utility 96 900 1982 Owned Mary Diane McCall Utility 110 800 1981 Owned Sallie McCall Utility 110 800 1981 Owned Davenport Utility 110 1,000 1980 Owned Lockhart Utility 110 1,000 1981 Owned Luckland Utility 110 1,000 1977 Owned Gladys McCall Utility 110 1,100 1974 Owned Alex G Utility 110 1,200 1979 Owned Allie G Utility 110 1,200 1978 Owned Angela G Utility 110 1,200 1981 Owned Anna G Utility 110 1,200 1978 Owned Annette G Utility 110 1,200 1980 Owned Austin G Utility 110 1,200 1979 Owned Avalon Utility 110 1,200 1979 Owned Avoca Utility 110 1,200 1981 Owned Bernie G Utility 110 1,200 1981 Owned Betty G Utility 110 1,200 1979 Owned Boy Blue Utility 110 1,200 1980 Owned Celestine G Utility 110 1,200 1981 Owned Columbia G Utility 110 1,200 1979 Owned Dixie Utility 110 1,200 1980 Owned Edith G Utility 110 1,200 1980 Owned Eric G Utility 110 1,200 1979 Owned Glenda G Utility 110 1,200 1982 Owned Jackie G Utility 110 1,200 1979 Owned Jeremy G Utility 110 1,200 1981 Owned Jerry G Utility 110 1,200 1979 Owned Joseph G Utility 110 1,200 1978 Owned Keith G Utility 110 1,200 1977 Owned Levert G Utility 110 1,200 1978 Owned Lynda G Utility 110 1,200 1979 Owned Margaret G Utility 110 1,200 1978 Owned Mark G Utility 110 1,200 1978 Owned Merttie G Utility 110 1,200 1978 Owned Miriam G Utility 110 1,200 1979 Owned Mr. Lin Utility 110 1,200 1981 Owned Myrtle Ann G Utility 110 1,200 1982 Owned Ramona G Utility 110 1,200 1983 Owned Ron Paul Utility 110 1,200 1981 Owned Sean G Utility 110 1,200 1980 Owned Shelley G Utility 110 1,200 1980 Owned Shirley G Utility 110 1,200 1980 Owned Sorolta Marie Utility 110 1,200 1981 Owned Tami G Utility 110 1,200 1982 Owned Warren G Utility 110 1,200 1977 Owned Weston G Utility 110 1,200 1981 Owned Tom McCall Utility 110 1,400 1981 Owned Adam J. Utility 118 1,200 1981 Owned Artamay Utility 118 1,200 1981 Owned Idlewild Utility 120 1,200 1978 Owned Marianne V (ex Lagonda) Utility 120 1,200 1978 JV Mister Gil Utility 120 1,200 1978 Owned Mr. Thomas Utility 120 1,200 1978 Owned Philocles Utility 120 1,200 1982 Owned Union Explorer Utility 120 1,300 1982 Owned Deborah McCall Utility 120 1,400 1981 Owned Joyce McCall Utility 120 1,400 1977 Owned Brian Paul Utility 125 1,200 1979 Owned Cecelia C Utility 125 1,200 1979 Owned Marmex IV Utility 125 1,200 1981 JV Mr. David Utility 125 1,200 1981 Owned TOTAL UTILITY 65 TOTAL OF ALL VESSELS (INCLUDING JVS & BAREBOATS): 325 ------------------------------------------------- ---
SCHEDULE D ---------- EXISTING LIENS --------------
SECURED OBLIGATIONS COLLATERAL ------------------- ---------- GBP 15,255,700 Ex-Stirling Stockholders due May 4, 2002 Standby L/C GBP 15,255,700 $12,131,883 Caterpillar Financial - debt assumed in acquisition of Rincon vessels M/V San Miguel M/V Sant Cruz $120,936 Southwest Bank - debt assumed in SCF acquisition 1st Preferred Ship Mortgage covering 11 barges $209,455 Liberty: Concord Various Equipment $116,039 Liberty: Hibernia Collateral Loans All Accounts & General Intangibles
SCHEDULE E ---------- EXISTING INDEBTEDNESS (1) -------------------------
SECURED DEBT 12/31/2001 ------------ ---------- Ex-Stirling Stockholders due 5/14/02 (2) 21,357,980 Caterpillar Financial - debt assumed in acquisition of Rincon vessels 12,131,883 Southwest Bank - debt assumed in SCF acquisition 120,936 Liberty: Concord 209,455 Liberty: Hibernia Collateral Loans 116,039 ----------------------------------------------------------------------------------------------------------------------------------- TOTAL SECURED DEBT 33,936,293 UNSECURED DEBT -------------- 5 3/8% Convertible Subordinated Notes due 2006, interest payable semi-annualy commencing 1997 46,320,000 7.2% Senior Notes Due 2009, interest payable semi-annually 147,500,000 5.467% Subordinated Promissory Notes due SMIT in 2004, interest payable quarterly commencing March 1999 23,200,000 Ex-Putford Stockholders 10,920,000 DnB Credit Facility 30,000,000 Liberty: Hibernia 346,832 ----------------------------------------------------------------------------------------------------------------------------------- TOTAL UNSECURED DEBT 258,286,832 Less: Debt discount, 7.2% Senior Notes Due 2009 (398,489) Debt discount, Putford (1,359,693) Debt discount, Stirling (66,005) ----------------------------------------------------------------------------------------------------------------------------------- TOTAL DEBT 290,398,938 Less: (Portion Due Within One Year) Caterpillar Financial - debt assumed in acquisition of Rincon vessels (12,131,883) Ex-Stirling Stockholders (21,357,980) Liberty: Hibernia (28,579) Liberty: Concord (75,639) Liberty: Hibernia Collateral Loans (48,971) Southwest Bank - debt assumed in SCF acquisition (80,624) Debt discount, Stirling 66,005 ----------------------------------------------------------------------------------------------------------------------------------- CURRENT PORTION OF LONG-TERM DEBT (33,657,671) TOTAL LONG-TERM DEBT 256,741,267
(1) Preliminary not Audited Numbers (2) This debt is secured with a standby letter of credit issued under the existing credit facility due 6/14/02 SCHEDULE F ---------- EXISTING LETTERS OF CREDIT -------------------------- LETTERS OF CREDIT 12/31/2001 ----------------- ---------- DEN NORSKE BANK ASA GBP 15,255,700 Used in the acquisition of Stirling Shipping, expires on 6/14/02 EXHIBIT 1 PROMISSORY NOTE ____________, 2002 New York, New York FOR VALUE RECEIVED, the undersigned SEACOR SMIT INC., a corporation incorporated under the laws of the State of Delaware (the "Borrower"), hereby promises to pay to the order of [INSERT NAME OF LENDER], [INSERT JURISDICTION OF ORGANIZATION OF LENDER AND TYPE OF ENTITY] ("_____"), with offices at [INSERT ADDRESS OF LENDER], the principal sum of [INSERT AMOUNT OF COMMITMENT OF LENDER] United States Dollars or the equivalent thereof where a portion of the Credit Facility is in a Foreign Currency or Currencies (as the same may be reduced from time to time pursuant to Sections 5.3 of the Credit Agreement hereinafter defined) or, if less, the aggregate unpaid principal amount of the Advances from time to time outstanding made by ___________ to the Borrower pursuant to the Credit Agreement dated February 5, 2002, by and among, the Borrower, the Banks and Financial Institutions set out in Schedule A thereto, Fleet National Bank, as syndication agent, Den norske Bank ASA as Administrative agent , Nordea, acting through Nordea Bank Finland Plc, New York Branch, as documentation agent, and The Governor and Company of the Bank of Scotland, as co-agent (as amended, restated, modified or supplemented from time to time, the "Credit Agreement"). The Borrower shall repay all outstanding Advances on the Termination Date. This promissory note may be prepaid on such terms as provided in the Credit Agreement. The Borrower shall repay or prepay each Advance (or portion thereof), together with interest accrued thereon, in the same currency as that in which such Advance was denominated when it was originally advanced by the Lenders. Words and expressions used herein and defined in the Credit Agreement shall have the same meanings herein as therein defined. The Advances shall bear interest for the period(s) of one (1), two (2), three (3), six (6), nine (9) or twelve (12) months (or such longer period as may be agreed by the Lenders), as selected by the Borrower pursuant to Section 6.3 of the Credit Agreement, at the rate per annum which is equal to the aggregate of, (a) LIBOR plus (b) the Margin, as provided in Section 6.1 of the Credit Agreement. Any payments under the Credit Agreement or hereunder not paid when due, whether by acceleration or otherwise, shall bear interest thereafter at a rate per annum equal to two hundred (200) basis points over the Applicable Rate then in effect with respect thereto at the time of such default. All payments of principal and interest hereunder are payable in lawful money of the United States of America, the United Kingdom, The Netherlands, France, or Singapore, the Euro or any other currency freely convertible into U.S. Dollars, as the case may be, to the Administrative Agent at its offices located at 200 Park Avenue, New York, New York or to such other branch of the Administrative Agent as the Administrative Agent may direct, in immediately available same day funds. The Administrative Agent may endorse the amount, currency and the date of the making of each Advance and any payment or prepayment thereof 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 Borrower 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 unless such next following Banking Day falls in the following calendar month, in which case, this promissory note or any payment required hereunder shall be due on the immediately preceding Banking Day. Any interest shall be payable during any such extension at the rate applicable immediately prior thereto. This promissory note is one of the Notes referred to in, and is entitled to the security and benefits of, the Credit Agreement. Upon the occurrence of any Event of Default under the Credit Agreement, the principal hereof and accrued interest hereon may be declared to be and shall thereupon become, forthwith, due and payable. Presentment, demand, protest and notice of dishonor of this promissory note or any other notice of any kind are hereby expressly waived. THE UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO 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 Borrower has executed and delivered this Promissory Note on the date and year first above written. SEACOR SMIT INC. By: --------------------------------- Name: Title: ADVANCES AND PAYMENTS OF PRINCIPAL
====================== ============================ ==================================== ========================== =============== Amount and Currency of Amount of Principal Outstanding Notation Date Each Advance Paid or Repaid Balance Made By ====================== ============================ ==================================== ========================== ===============
EXHIBIT 2 FORM OF ADMINISTRATIVE QUESTIONNAIRE LENDER ADMINISTRATIVE QUESTIONNAIRE ================================================================================ At closing, ______________________________ will assume the duties and functions of Administrative Agent for the Facility. This questionnaire should be completed in order to facilitate closing and ongoing communication. FAX ALONG WITH COMMITMENT LETTER TO:
----------------------------------------------------------------------------------------------------------------------------------- BORROWER INFORMATION ----------------------------------------------------------------------------------------------------------------------------------- BORROWER NAME: SEACOR SMIT Inc. ------------------------------------------------------------------------------------------- AMOUNT AND FACILITY: $200,000,000 Revolving Credit Facility ------------------------------------------------------------------------------------------- BORROWER TAX ID(S)#: 13-3542736 ------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------- PARTICIPANT INFORMATION ----------------------------------------------------------------------------------------------------------------------------------- LEGAL NAME OF LENDER FOR SIGNATURE PAGE: ---------------------------------------------------------- NAME OF LENDER FOR ANY EVENTUAL TOMBSTONE: ---------------------------------------------------------- INSTITUTION TAX ID#: ---------------------------------------------------------- GENERAL INFORMATION DOMESTIC LENDING OFFICE: EURODOLLAR LENDING OFFICE: Institution Name: Street Address: City/State/Zip: Country:
CREDIT CONTACT OPERATIONS CONTACT Legal Counsel -------------- ------------------ ------------- PRIMARY CONTACT: --------------------------------- ------------------------------ --------------------------------- TITLE: --------------------------------- ------------------------------ --------------------------------- STREET ADDRESS: --------------------------------- ------------------------------ --------------------------------- CITY/STATE/ZIP: --------------------------------- ------------------------------ --------------------------------- COUNTRY: --------------------------------- ------------------------------ --------------------------------- TELEPHONE #: --------------------------------- ------------------------------ --------------------------------- FAX #: --------------------------------- ------------------------------ --------------------------------- --------------------------------- ------------------------------ --------------------------------- EMAIL ADDRESS: --------------------------------- ------------------------------ --------------------------------- SECONDARY CONTACT: --------------------------------- ------------------------------ --------------------------------- TITLE: --------------------------------- ------------------------------ --------------------------------- STREET ADDRESS: --------------------------------- ------------------------------ --------------------------------- CITY/STATE/ZIP: --------------------------------- ------------------------------ --------------------------------- COUNTRY: --------------------------------- ------------------------------ --------------------------------- TELEPHONE #: --------------------------------- ------------------------------ --------------------------------- FAX #: --------------------------------- ------------------------------ --------------------------------- EMAIL ADDRESS: --------------------------------- ------------------------------ ---------------------------------
----------------------------------------------------------------------------------------------------------------------------------- WIRE ROUTING INSTRUCTIONS ----------------------------------------------------------------------------------------------------------------------------------- Name of Lender: ------------------------------------------------------------------------------------------------- ABA Number: ------------------------------------------------------------------------------------------------- City/State: ------------------------------------------------------------------------------------------------- Country: ------------------------------------------------------------------------------------------------- Account Name: ------------------------------------------------------------------------------------------------- Account Number: ------------------------------------------------------------------------------------------------- Attention: ------------------------------------------------------------------------------------------------- Reference: ------------------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------- MAILING ADDRESSES ----------------------------------------------------------------------------------------------------------------------------------- CREDIT AGREEMENT DELIVERY FINANCIAL INFORMATION DELIVERY ------------------------- ------------------------------ NAME: ---------------------------------------------- --------------------------------------------------- TITLE: ---------------------------------------------- --------------------------------------------------- STREET ADDRESS: ---------------------------------------------- --------------------------------------------------- CITY/STATE/ZIP: ---------------------------------------------- --------------------------------------------------- COUNTRY: ---------------------------------------------- --------------------------------------------------- TELEPHONE #: ---------------------------------------------- --------------------------------------------------- FAX #: ---------------------------------------------- --------------------------------------------------- EMAIL ADDRESS: ---------------------------------------------- --------------------------------------------------- ----------------------------------------------------------------------------------------------------------------------------------- TAX WITHHOLDING ----------------------------------------------------------------------------------------------------------------------------------- Non-Resident Alien: YES, FORM [W-8 BEN/W--8 ECI] ATTACHED. ---------- Tax ID Number: FORM W9 ATTACHED. ---------------------------- ----------------------------------------------------------------------------------------------------------------------------------- ADMINISTRATIVE AGENT INFORMATION ----------------------------------------------------------------------------------------------------------------------------------- CREDIT CONTACT CUSTOMER SERVICE (LOAN ADMINISTRATION) ----------------------------------------------------------------------------------------------------------------------------------- NAME: Title: STREET ADDRESS: CITY/STATE/ZIP: COUNTRY: TELEPHONE #: FAX #: EMAIL ADDRESS: ----------------------------------------------------------------------------------------------------------------------------------- ADMINISTRATIVE AGENT WIRE INSTRUCTIONS ----------------------------------------------------------------------------------------------------------------------------------- Bank: ---------------------------------------------------------------------------------------------- ABA Number: ---------------------------------------------------------------------------------------------- F/O: ---------------------------------------------------------------------------------------------- Account #: ---------------------------------------------------------------------------------------------- Reference: ---------------------------------------------------------------------------------------------- Attn: ----------------------------------------------------------------------------------------------
Completed By ------------------- Signature EXHIBIT 3 FORM OF DRAWDOWN NOTICE [Date] Den norske Bank ASA 200 Park Avenue New York, New York 10016 Drawdown Notice --------------- Pursuant to Section 3.3 of the Revolving Credit Facility Agreement dated as of February 5, 2002 (the "Credit Agreement") made by and among (1) ourselves as the "Borrower", (2) the banks and financial institutions whose names and addresses are set out in Schedule A thereto (together with any assignee pursuant to Section 11 of the Credit Agreement) (collectively the "Lenders"), (3) Fleet National Bank, as syndication agent , (4) Nordea, acting through Nordea Bank Finland Plc, New York Branch, as documentation agent , (5) The Governor and Company of the Bank of Scotland, as co-agent and (6) Den norske Bank ASA, as administrative agent (the "Administrative Agent"), the undersigned hereby gives the Administrative Agent notice of a drawdown of an Advance. All terms used herein, shall have the meanings given thereto in the Credit Agreement. Drawdown Date: Amount: Currency: Purpose: Initial Interest Period(s): Disbursement Instructions: The undersigned hereby represents and warrants that (a) the representations and warranties stated in Section 2 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, except for changes in (i) the Vessels owned, (ii) recorded liens relating thereto or (iii) Liens in respect of Secured Debt, 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. In the event that the Lenders 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 Borrower to satisfy a condition precedent set forth in Section 4 of the Credit Agreement)1, the Borrower shall indemnify and hold fully harmless the Lenders or any of them, against any losses which the Lenders or any of them, may sustain as a result of borrowing or agreeing to borrow funds to meet the requested drawdown and the certificate of the relevant Lender shall, absent manifest error, be conclusive and binding on the Borrower as to the extent of any such losses. This Drawdown Notice is effective upon receipt by you and shall be irrevocable. SEACOR SMIT INC. By: ------------------------ Name: Title: -------- 1 Insert the following in the initial Drawdown Notice -- "or the failure of the Credit Agreement to become effective" EXHIBIT 4 FORM OF LETTER OF CREDIT REQUEST No. 2 Dated: [Date] ------- Den norske Bank ASA New York Branch 200 Park Avenue New York, NY 10016-0396 Attn.: ------------------------------- Ladies and Gentlemen. The undersigned, SEACOR SMIT Inc., refers to the Revolving Credit Facility Agreement, dated February 5, 2002 (as amended, modified or supplemented from time to time, the "Credit Agreement", the capitalized terms defined therein being used herein as therein defined), made by and among (1) the undersigned, as the "Borrower", (2) the banks and financial institutions whose names and addresses are set out in Schedule A thereto (together with any assignee pursuant to Section 11 of the Credit Agreement) (collectively the "Lenders"), (3) Fleet National Bank, as syndication agent , (4) Den norske Bank ASA, as administrative agent, (5) Nordea, acting through Nordea Bank Finland Plc, New York Branch, as documentation agent and (6) The Governor and Company of the Bank of Scotland, as co-agent. The undersigned hereby requests that the Letter of Credit Issuer issue on behalf and for the account of the undersigned a Letter of Credit on ________, ____ (the "Date of Issuance") in the aggregate amount of _____________. The requested Letter of Credit shall be denominated in ________. The beneficiary of the requested Letter of Credit will be ___________ and such Letter of Credit will be in support of ____________3 and will have a stated termination date of ________, ____. The undersigned hereby certifies that the following statements are true on the date hereof, and will be on the Date of Issuance: (a) the representations and warranties contained in Section 2 of the Credit Agreement are and will be true and correct in all material respects, before and after giving effect to the issuance of the Letter of Credit requested hereby, as though made on the Date of ---------- 2 Letter of Credit Request Number. 3 Insert description of the L/C Supportable Obligations to which this letter of Credit Request relates. Issuance, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, except for changes in (i) the Vessels owned, (ii) recorded liens relating thereto or (iii) Liens in respect of Secured Debt; and (b) no Event of Default has occurred and is continuing, or would result after giving effect to the issuance of the Letter of Credit requested hereby. Copies of all documentation, if any, with respect to the supported transaction are attached hereto. SEACOR SMIT Inc. By: -------------------------- Name: Title: 2 EXHIBIT 5 FORM OF COMPLIANCE CERTIFICATE [Date] Den norske Bank ASA, NY Branch 200 Park Avenue, 31st Floor New York, NY 10166 Enclosed, please find the Compliance Certificate required to be delivered under the Credit Facility Agreement, dated February _____, 2002 relating to our $200,000,000 credit facility. The following information has been assembled from the attached financial statements, dated [DATE]. The brief section descriptions outlined below serves to summarize the full text and should there be any conflict in the interpretation of the text used herein and in the Credit Facility Agreement, the latter shall govern ('000' have been omitted in all dollar amounts below). Definition: EBITDA: Means on a consolidated basis, the aggregate, to be measured on a trailing twelve (12) month basis, of: (i) operating income (before deductions for interest, taxes, depreciation and amortization), (ii) interest income and (iii) "Equity in Net Earnings of Fifty Percent (50%) or Less Owned Companies" (as such term is used in the Borrower's published financial reports)
4th last qtr. 3rd last qtr 2nd last qtr Last qtr Last 12 mos. Operating Income (as defined above) $ o $ o $ o $ o $ o plus interest income o o o o o plus Equity in Net Earnings of o o o o o 50% or Less Owned Companies. o o o o o o o o o o --------------- EBITDA $ o o $ o $ o $ o ---------------
Definition: Funded Debt: Means on a consolidated basis, the sum of (i) indebtedness for borrowed money, all obligations evidenced by bonds, debentures, notes, or similar instruments, and purchase money obligations which, in accordance with GAAP, would be shown on the consolidated balance sheet as a liability, (ii) all obligations arising under letters of credit, (iii) all obligations as lessee under leases, which have been, in accordance with GAAP, recorded as capitalized lease obligations, (iv) guarantees of non-consolidated entity obligations but excluding (v) indebtedness which is consolidated in the Borrower's published financial statements in accordance with GAAP but which represents a minority interest holders' share of such indebtedness unless such minority interest holders' share has been guaranteed by the Borrower or a Subsidiary.
Committed Outstanding Amount Amount US$200 MM Revolving Credit Facility o o Capitalized Leases o o Smit Note o o Other Debt o o L/C obligations (other than DnB) o o Guarantee obligations o o Long-Term Bonds (12 yrs.) o o Subordinated Convertible Debt o o Less Debt Discount o o Less Minority Related Debt o o ------------------ FUNDED DEBT $ o ------------------
2 Section 6.2 The Applicable Margin: ---------------------------------- Shall vary based upon (a) the Borrower's credit rating as determined by S & P and Moody's, or (b) if the Borrower is no longer rated, the ratio of the Borrower's consolidated Funded Debt to the consolidated EBITDA for the Borrower, as follows:
Credit Funded Debt (1) / EBITDA (2) Rating Applicable Margin ---------------------------- ------ ----------------- less than or equal to 0.75 A-/A3 65 bp greater than 0.75, less than or equal to 1.5 BBB+/Baa1 75 bp greater than 1.50, less than or equal to 2.25 BBB/Baa2 85 bp greater than 2.25, less than or equal to 3.0 BBB-/Baa3 100 bp greater than 3.0, less than or equal to 4.0 BB+/Ba1 125 bp Greater than 4.0 >BB+/Ba1 150 bp
For purposes of determining the Applicable Margin, in the case of a split rating in the respective credit ratings of the Borrower by Moody's and S&P the higher of the two ratings shall apply. In the event of a split rating of more than one level, the rating which is one level above the lower rating shall apply. The Applicable Margin shall be determined by the Administrative Agent quarterly (based upon the latest 10Q or 10K report and this Compliance Certificate). The newly determined Applicable Margin shall be effective on the last day of the month following the month during which such report and certificate were delivered to the Administrative Agent. Nota Bene: (1) Does not include Subordinated Debt, (2) last 12 months Applicable Funded Debt: $ o [A] ----------------------- Applicable EBITDA: o [B] ------------------ Applicable Ratio: o [A/B] ----------------- Applicable Rating: o ------------------ (a) S&P rating (b) Moody's rating Applicable Margin (1) : o ------------------------ Current Margin: o --------------- Nota Bene: (1) The new margin shall be effective as of the last day of the month following the month of this compliance certificate. 3 Section 14.1 Commitment Fee: ---------------------------- Shall vary based upon (a) the Borrower's credit rating as determined by S&P and Moody's, or (b) if the Borrower is no longer rated, the ratio of the Borrower's consolidated Fund Debt to the Consolidated EBITDA for the Borrower, as follows:
Credit Funded Debt (1) / EBITDA (2) Rating Commitment Fee Rate ---------------------------- ------ ------------------- less than or equal to 0.75 A-/A3 17.5 bp greater than 0.75, less than or equal to 1.5 BBB+/Ba1 20.0 bp greater than 1.50, less than or equal to 2.25 BBB/Baa2 25.0 bp greater than 2.25, less than or equal to 3.0 BBB-/Baa3 32.5 bp greater than 3.0, less than or equal to 4.0 BB+/Ba1 40.0 bp Greater than 4.0 >BB+/Ba1 65.0 bp
For purposes of determining the applicable Commitment Fee Rate(s), in the case of a split rating in the respective credit ratings of the Borrower by Moody's and S&P the higher of the two ratings shall apply. In the event of a split rating of more than one level, the rating which is one level above the lower rating shall apply. The applicable Commitment Fee Rate(s) shall be determined by the Administrative Agent quarterly (based upon the latest 10Q report or 10K report and this Compliance Certificate). The newly determined Commitment Fee Rate(s) shall be effective on the on the last day of the month following the month during which such report was delivered to the Administrative. Agent. Nota Bene: (1) Does not include Subordinated Debt, (2) last 12 months. Applicable Ratio: o [A/B above in 6.2] ----------------- Applicable Rating: o ------------------ (a) S&P rating (b) Moody's rating Previous Commitment Rate: o bp ------------------------- New Commitment Rate: o -------------------- Nota Bene: The new margin shall be effective as of the last day of the month following the month of this compliance certificate. 4 COMPLIANCE Section 3.6 Foreign Currency Advances - Max. 50% of Amount: (YES/NO/N.A.) ----------------------------------------------------------- ------------- British Pound Advances: o [GBP] ----------------------- o. [$ exchange rate] o [$ equivalent] EuroAdvances: o [(euro)] ------------- o. [$ exchange rate] o [$ equivalent] Singapore Dollar Advances: o [SGD] --------------------------- o [$ exchange rate] o [$ equivalent] Total Foreign Currency Advances (in $ terms): o [A] Maximum Foreign Currency Advances Allowed $ o [B][50% of Facility] Repayment required: None [A - B] Section 4.1(a)(iv) Board of Directors and Section 9.1(l) -------------------------------------------------------- Change of Control of SEACOR SMIT Inc.: -------------------------------------- SEACOR SMIT may not suffer any change of control, as defined. The current members of the Board of Directors are (any change from previous list to be noted): 5 COMPLIANCE (YES/NO/N.A.) ------------- Section 10.1 (a)(v)(a) Annual Financial Statements -------------------------------------------------- As soon as available but no later than 90 days after the end of each fiscal o year as audited by an Acceptable Accounting Firm. Together with a Compliance Certificate. Section 10.1 (a)(v)(b) Quarterly Financial Statements ----------------------------------------------------- As soon as available but no later than 60 days of the end of o each fiscal quarter. Together with a Compliance Certificate. Section 10.1 (a)(xv) Funded Debt / Total Capitalization: -------------------------------------------------------- Maximum of 50%. Total Capitalization includes Funded Debt o and Consolidated Net Worth. Funded Debt: $ o [A] CONSOLIDATED NET WORTH: $ o [B] Total Capitalization: $ o [A+B] Ratio: o [A/A+B] Section 10.1 (a)(xvi) Secure Debt / Total Capitalization: o --------------------------------------------------------- Secured Debt: on a consolidated basis, the aggegate of any Indebtedness secured or collateralized by a Lien Maximum 20%. Senior Debt: $ o [A] Total Capitalization: $ o [B] Ratio: o [A/B]
6 COMPLIANCE (YES/NO/N.A.) ------------- Section 10.1 (a)(xvii) Interest Coverage Ratio: ----------------------------------------------- Maintain on a consolidated basis (a) EBITDA ? divided by (b) interest payments (including interest atributable to capialized leases) made during the four (4) fiscal quarters preceding the date on which such ratio is determined at ratio of not less than 3.0 to 1.0. EBITDA (LAST 12 MONTHS) $ o [A] INTEREST PAYMENTS (LAST $ o [B] 4 QUARTERS) INTEREST COVERAGE RATIO: o [A/B] Section 10.1 (a)(xviii) Consolidated Net Worth: o ----------------------------------------------- Must be equal to (a) $600MM during 2002, and (b) thereafter $600MM plus 50% of the cumulative net income starting with net income for 2002 Section 10.1(b)(x) Limitations on Investments in Joint Venture o -------------------------------------------------------------- Will not make, and will not permit any Subsidiary to make, any Investment in any Joint Venture except if such Investment does not exceed 30% of the Total Capitalization, and except as otherwise provided in Section 10.1(b)(a)(xviii) INVESTMENT $ o [A] TOTAL CAPITALIZATION $ o [B] PERCENTAGE OF INVESTMENT o [(A/B) * 100] TO TOTAL CAPITALIZATION
7 COMPLIANCE (YES/NO/N.A.) ------------- Section 10.1(b)(xi) Limitations on Indebtedness ----------------------------------------------- Will not incur, and shall procure that the Subsidiaries will not incur, any Indebtedness, except as otherwise provided in Section o 10.1(b)(xi), and except Indebtedness may be incurred so long as Seacor is in compliance with Sections 10.1(a)(xv), (xvi), (xvii) and (xviii); and provided that the aggregate of Subsidiary Funded Debt of each of the Subsidiaries, when added together, shall not exceed 30% of the Total Capitalization of the Borrower on a consolidated basis; provided, further, that when aggregating any Subsidiary Funded Debt, it is done as provided in Section 10.1(b)(xi)(e) AGGREGATE SUBSIDIARY $ o [A] FUNDED DEBT TOTAL CAPITALIZATION $ o [B] PERCENTAGE OF AGGREGATE o [(A/B) * 100] SUBSIDIARY FUNDED DEBT TO TOTAL CAPITALIZATION To the best of my knowledge there are currently no outstanding defaults under the Loan Agreement and the related documentation excerpt as expressly outlined below: Very truly yours, SEACOR SMIT Inc. By: ____________________ Name: Title:
8 EXHIBIT 6 FORM OF 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 INCORPORATION OF ASSIGNOR] (the "Assignor"), and [NAME OF ASSIGNEE], a [BANK/CORPORATION] organized under the laws of [JURISDICTION OF INCORPORATION OF ASSIGNEE] (the "Assignee"), supplemental to: (A) that certain Revolving Credit Facility Agreement, dated as of February 5, 2002 (as amended, restated, modified or supplemented from time to time, together the "Credit Agreement"), made by and among (a) the Borrower, (b) the banks and financial institutions whose names and addresses are set out in Schedule A thereto (together with their permitted successors and assigns, the "Lenders"), (c) Fleet National Bank, as syndication agent, (d) Den norske Bank ASA, as administrative agent , (e) Nordea, acting through Nordea Bank Finland Plc, New York Branch, as documentation agent, and (f) The Governor and Company of the Bank of Scotland, as co-agent, pursuant to which the Lenders agreed to make available to the Borrower a reducing revolving credit facility (the "Credit Facility") in the maximum principal amount which may be outstanding at any time (in Advances and/or Letters of Credit) of Two Hundred Million United States Dollars (US$200,000,000) or the equivalent in Pounds Sterling, Euros, Singapore Dollars or any combination thereof; provided, however, that at no time may Letters of Credit be outstanding in excess of 50% of the Credit Facility; and (B) each promissory note made by the Borrower payable to the order of each Bank dated February 5, 2002 (collectively, the "Notes") evidencing the Advances under the Credit Agreement. 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: 1. The Assignor hereby sells, transfers and assigns to the Assignee o% of the Assignor's right, title and interest in, to and under the: (a) the Credit Agreement, (b) the Notes (including, without limitation, its interest in the indebtedness evidenced by the Notes) and (c) the Letters of Credit. Simultaneously herewith, the Assignee shall pay to the Assignor an amount equal to the purchase price agreed between them in a separate writing. 2. The Assignee hereby assumes o% of the obligations of the Assignor under the Credit Agreement and shall hereafter be a "Lender" for all purposes of the Credit Agreement and the Notes and a "Letter of Credit Participant" for purposes of the Letters of Credit, the Assignee's Commitment thereunder being $o in respect of the Credit Facility. 3. The [Assignor] [Assignee] shall pay an administrative fee of Five Thousand Dollars ($5,000) to the Administrative Agent to reimburse the Administrative Agent for its cost in processing the assignment and assumption herein contained. 4. If it is not a U.S. person, the Assignee shall, on or prior to the date hereof and from time to time thereafter when required by applicable provisions of the United States Internal Revenue Code, provide the Borrower with two duly completed copies of Internal Revenue Service Form W- 8BEN or W-8ECI, as appropriate, or any successor form prescribed by the Internal Revenue Service, certifying that the Assignee is entitled to benefits under an income tax treaty to which the United States is a party that exempts withholding tax on payments under the Credit Agreement and the Notes or certifying that the income receivable pursuant to the Credit Agreement or the Notes is effectively connected with the conduct of a trade or business in the United States. 5. The Assignee irrevocably designates and appoints the Agent as its agent, and irrevocably authorizes the Agent, to take such action on its behalf and to exercise such powers on its behalf under the Credit Agreement and under the Notes, each as supplemented hereby, as are delegated to the Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto all as provided in Section 16 of the Credit Agreement. 6. The Assignor makes no representation or warranty in connection with, and shall have no responsibility with respect to, the solvency, financial condition or statements of the Borrower, or the validity and enforceability of the obligations of the Borrower in respect of the Credit Agreement or the Notes. The Assignee acknowledges that it has, independently and without reliance on the Assignor or the Agent, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and will continue to be responsible for making its own independent appraisal of the business, affairs and financial condition of the Borrower. 7. Every notice or demand under this Agreement shall be in writing and may be given by telecopy and shall be sent (with a copy to the Agent) as follows: If to the Assignor: [NAME OF ASSIGNOR] [ADDRESS] Telecopy No.: Attention: 2 If to the Assignee [NAME OF ASSIGNEE] [ADDRESS] Telecopy No.: Attention: If to the Administrative Agent: 200 Park Avenue New York, New York 10166-0396 Telecopy No. 212-681-3900 Attention: Nikolai Nachamkin Any notice sent by telecopy shall be confirmed by letter dispatched as soon as possible thereafter. The Assignee designates its address given above as its address for notices pursuant to Section 17.2 of the Credit Agreement. 8. EACH OF THE ASSIGNOR AND THE ASSIGNEE HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. 9. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. 10. This Agreement may be executed in several counterparts with the same effect as if the parties executing such counterparts executed one agreement as of the date hereof and each counterpart when executed and delivered shall be deemed to be an original and all of such counterparts together shall constitute this Agreement. 3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. [NAME OF ASSIGNOR] [NAME OF ASSIGNEE] By: ____________________________ By: ____________________________ Name: Name: Title: Title: By: ____________________________ By: ____________________________ Name: Name: Title: Title: Consented and Agreed this _____ day of _________, ____: SEACOR SMIT INC. By_________________________ Name: Title: DEN NORSKE BANK, ASA, as Administrative Agent By_________________________ Name: Title: By_________________________ Name: Title: 4