AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AMONG
TIDEWATER INC., ET AL
(as Companies)
FIRST NATIONAL BANK OF COMMERCE
(as Administrative Agent)
FIRST NATIONAL BANK OF COMMERCE
THE FIRST NATIONAL BANK OF BOSTON
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(as Agents)
and
FIRST NATIONAL BANK OF COMMERCE,
AMSOUTH BANK OF ALABAMA,
THE FIRST NATIONAL BANK OF BOSTON,
WHITNEY NATIONAL BANK,
HIBERNIA NATIONAL BANK,
PREMIER BANK NATIONAL ASSOCIATION
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(as Lenders)
$130,000,000.00
Dated: as of December 29, 1995
TABLE OF CONTENTS
Page No.
Introduction .............................................................. 1
Section 1. Commitment of Lenders ......................................... 2
1.1 Credit Facility ................................................... 2
1.2 Borrowing Procedure Under the Credit Facility ..................... 3
1.3 Use of Proceeds ................................................... 3
Section 2. Promissory Notes; Guaranty .................................... 3
2.1 Line of Credit Notes .............................................. 3
2.2 Term Notes ........................................................ 4
Section 3. Interest and Fees ............................................. 4
3.1 Interest - Line of Credit ......................................... 4
3.2 Interest - Term Loan .............................................. 4
3.3 Interest - Administrative Agent's
Determination ........................................... 5
3.4 Payment Dates; Late Payment ....................................... 8
3.5 Commitment Fee; Facility Fee; Agents' Fee ......................... 9
3.6 Method of Calculating Interest and Fees ........................... 9
Section 4. Payments, Reduction or Termination of the Credit
and Prepayments ............................................... 9
4.1 Place of Payment .................................................. 9
4.2 Reduction of Credit under the Line of
Credit; Prepayments ............................................. 10
4.3 Prepayments of Term Notes ......................................... 10
4.4 Pro Rata Payments ................................................. 11
Section 5. Representations and Warranties of the Companies ............... 11
5.1 Corporate Existence ............................................... 11
5.2 Authorization; Validity ........................................... 11
5.3 Conflicting Agreements and Other Matters .......................... 11
5.4 Financial Statements .............................................. 12
5.5 Litigation and Contingent Liabilities ............................. 12
5.6 Outstanding Debt .................................................. 13
5.7 Title to Properties ............................................... 13
5.8 Purpose ........................................................... 13
5.9 Margin Stock ...................................................... 13
5.10 ERISA ............................................................. 13
5.11 Consents .......................................................... 14
5.12 Tax Returns; Taxes ................................................ 14
5.13 Compliance with Laws .............................................. 14
5.14 Foreign Assets Control Regulations ................................ 14
(i)
5.15 Disclosure ........................................................ 15
5.16 Environmental Matters ............................................. 15
Section 6. Covenants of the Companies .................................... 16
6.1 Financial Statements .............................................. 16
6.2 Inspection of Property ............................................ 19
6.3 Covenant to Secure Notes Equally .................................. 19
6.4 Guaranteed or Collateralized Obligations .......................... 20
6.5 Maintenance of Insurance .......................................... 20
6.6 Maintenance of Corporate Existence/
Compliance with Law/Preservation of Property .................... 20
6.7 Compliance with Environmental Laws ................................ 21
6.8 Liens ............................................................. 21
6.9 Debt .............................................................. 23
6.10 Investments ....................................................... 23
6.11 Disposition of Stock and Debt ..................................... 25
6.12 Mergers and Consolidations ........................................ 25
6.13 Fixed Charge Ratio ................................................ 26
6.14 Maximum Tangible Net Worth ........................................ 26
6.15 Transactions with Related Parties ................................. 26
6.16 Stock Transactions by Subsidiaries ................................ 26
6.17 ERISA ............................................................. 26
6.18 Federal Reserve Regulations, etc .................................. 27
6.19 Environmental Matters ............................................. 27
6.20 Taxes ............................................................. 27
Section 7. Conditions Precedent to Credit Facility Advances .............. 27
7.1 Default ........................................................... 28
7.2 Representations and Warranties .................................... 28
Section 8. Conditions Precedent to the Credit ............................ 28
8.1 Resolutions of the Companies ...................................... 28
8.2 Organization Documents; Good Standing ............................. 28
8.3 Incumbency ........................................................ 28
8.4 Officer's Certificate ............................................. 28
8.5 Notes ............................................................. 29
8.6 Opinion ........................................................... 29
Section 9. Events of Default; Remedies; Set Offs ......................... 29
9.1 Events of Default ................................................. 29
9.2 Remedies .......................................................... 31
9.3 Waiver of Set-Offs ................................................ 32
Section 10. The Agents .................................................... 33
10.1 Appointment and Authorization ..................................... 33
10.2 Agents' Reliance .................................................. 33
10.3 Acts by Administrative Agent after Default, etc ................... 34
(ii)
10.4 Lender Credit Decision ............................................ 34
10.5 Agents ............................................................ 35
10.6 Assignments and Participations .................................... 35
Section 11. General ...................................................... 36
11.1 Definitions ....................................................... 36
11.2 Financial Terms ................................................... 47
11.3 Delay ............................................................. 47
11.4 Notices ........................................................... 47
11.5 Costs, Expenses and Taxes ......................................... 49
11.6 Severability ...................................................... 50
11.7 Counterparts ...................................................... 50
11.8 Law ............................................................... 50
11.9 Successors ........................................................ 50
11.10 Singular and Plural ............................................... 50
11.11 Amendments ........................................................ 50
11.12 Entire Agreement .................................................. 51
Signatures ................................................................ 52
(iii)
AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (the
"Agreement") dated as of December 29, 1995, by and among Tidewater Inc., a
Delaware corporation (the "Company"), the Domestic Subsidiaries (as hereinafter
defined) of the Company named on EXHIBIT "A", attached hereto and made a part
hereof, the respective state of incorporation of each of which Domestic
Subsidiaries being set forth opposite its name and which Domestic Subsidiaries
constitute all of the Domestic Subsidiaries of the Company (herein together with
the Company called the "Companies"), and First National Bank of Commerce, a
national banking association, as administrative agent (the "Administrative
Agent"), First National Bank of Commerce, The First National Bank of Boston and
Texas Commerce Bank National Association, as agents (the "Agents"), and First
National Bank of Commerce, AmSouth Bank of Alabama, The First National Bank of
Boston, Whitney National Bank, Hibernia National Bank, Premier Bank National
Association and Texas Commerce Bank National Association (the "Lenders").
RECITALS
A. Pursuant to an Amended and Restated Revolving Credit and Term Loan
Agreement dated November 30, 1994 (the "Existing Loan Agreement"), the Companies
and the Lenders have heretofore entered into an agreement to provide for line of
credit advances up to the aggregate principal amount of $130,000,000 through
September 30, 1996, after which the line of credit converts to a four-year term
loan.
B. The Companies wish to extend the maturity date of the line of credit
to September 30, 1998, after which the line of credit converts to a four-year
term loan. The Companies and the Lenders wish to provide for the foregoing
pursuant to this amendment and restatement of the Existing Loan Agreement.
C. The Compression Term Loan (as defined in the Existing
Agreement) has been repaid in full.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements and undertakings herein contained, Lenders and the Companies hereby
agree to amend and restate the Existing Loan Agreement as follows:
Section 1. COMMITMENT OF LENDERS. Subject to the terms and conditions
hereof, each Lender severally agrees to make a loan to the Companies, on the
terms and conditions set forth in this Agreement, in the following aggregate
principal amount (the "Commitments"):
Line of Credit
LENDER MAXIMUM COMMITMENT
First National Bank $ 23,400,000
of Commerce
The First National 23,400,000
Bank of Boston
Texas Commerce Bank 23,400,000
National Association
AmSouth Bank of Alabama 18,200,000
Whitney National Bank 15,600,000
Hibernia National Bank 13,000,000
Premier Bank National 13,000,000
Association
Total $130,000,000
1.1 CREDIT FACILITY. The Lenders shall establish a revolving line of
credit (the "Line of Credit") which may be drawn upon by the Companies on any
Business Day during the period from the date hereof until and including
September 30, 1998, in such amounts (but not less than $5,000,000 per Advance
and above $5,000,000 in even multiples of $1,000,000) as the Companies may from
time to time request (individually, an "Advance" and, collectively, the
"Advances"), but not exceeding the Line of Credit Commitments (the "Credit
Facility"), which amount outstanding under said Line of Credit as of the close
of business on September 30, 1998, shall then convert on the following day to a
four (4) year term loan (the "Term Loan") with principal payable quarterly on a
four (4) year amortization schedule. The Credit available to the Companies from
time to time under the Line of Credit within the Credit Facility shall be
reduced by the aggregate of the face amount of any and all unpaid Advances made
by the Lenders to the Companies pursuant to this Agreement and shall constitute
the "Available Credit." Irrespective of the Company or Companies who directly or
indirectly receive the amounts funded on Advances, each of the Companies shall
be liable jointly and severally and solidarily to the Lenders for
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all amounts outstanding from time to time under the Credit
Facility.
1.2 BORROWING PROCEDURE UNDER THE CREDIT FACILITY. Advances shall be
made as follows: (i) in the case of a Prime Rate Advance, on notice from the
Company to the Administrative Agent received by the Administrative Agent no
later than 10:00 A.M. (Central time) on the date of such proposed Advance,
specifying the amount thereof; and (ii) in the case of a LIBO Rate Advance, on
notice from the Company to the Administrative Agent at least three (3) Business
Days prior to the date of such proposed Advance. The Administrative Agent will
use its best efforts to give telephone notice of a proposed Advance on the same
day such notice is received by the Administrative Agent from the Company. Not
later than 2:00 P.M. (Central time) on the date of such Advance and upon
fulfillment of the applicable conditions set forth in Section 7, the Lenders
will make such Advance available to the Administrative Agent, which shall make
such total Advance available to the Company in same day funds at the
Administrative Agent's office at 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx. The
request for a Advance shall constitute a certification by the Companies that all
of the representations and warranties contained in Section 5 are true and
correct as of the date of such request (except that the representations and
warranties contained in Section 5.6 shall be replaced by the representation and
warranty that the Companies are in compliance with the provisions of Section 6.9
hereof as of the date of such request for Advances). Subject to the provisions
of Section 9.2 hereof, the Lenders shall be obligated to fund Advances in
proportion to their Commitments. The obligations of the Lenders under this
Agreement shall be separate and several and not joint and several or solidary;
none of the Lenders shall be responsible or liable for the acts or omissions of
any of the other Lenders.
1.3 USE OF PROCEEDS. The Companies shall use the proceeds of the Credit
Facility and Term Loan only for general corporate purposes not inconsistent with
the provisions of this Agreement.
Section 2. PROMISSORY NOTES; GUARANTY.
2.1 LINE OF CREDIT NOTES. The Credit Facility shall be evidenced by
promissory notes of the Companies, each in the form of EXHIBIT "B" to this
Agreement, dated the date of this Agreement, and payable to each Lender
respectively (together with any and all renewals, extensions, rearrangements
and/or modifications thereof, the "Line of Credit Notes"), in the amount of the
Lenders' respective maximum Line of Credit Commitments, with appropriate
insertions, and payable in full on September 30, 1998.
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2.2 TERM NOTES. The Term Loan shall be evidenced by promissory notes of
the Companies in the form of EXHIBIT "C" to this Agreement, dated October 1,
1998, payable to the order of each Lender respectively (together with any and
all renewals, extensions, rearrangements and/or modifications thereof, the "Term
Notes"), in the Lenders' respective proportionate amount of the Term Loan, with
appropriate insertions, and payable in full on September 30, 2002. The Term
Notes shall provide for payment of quarterly installments of principal in an
amount equal to one-sixteenth (1/16th) of the initial principal balance thereof.
Once the Term Loan is initially funded, the Lenders shall not fund any
additional Advances under the Term Loan.
Section 3. INTEREST AND FEES.
3.1 INTEREST - LINE OF CREDIT. The unpaid principal of the Line of
Credit Notes shall bear interest at one (or both) of the following interest
rates, at the Company's option: (i) Prime Rate or (ii) LIBO Rate plus the
Applicable LIBO Rate Margin. The Company shall select the interest rate
applicable to each Tranche at the time of funding each Advance, and the selected
interest rate shall continue as to said Tranche until changed in accordance with
the following. The Company shall notify the Administrative Agent of the
Company's desire to change the interest rate on Advances (or any portion
thereof) not less than three (3) Business Days prior to the date on which such
change shall be effective. The Company may change from Prime Rate Advances to
LIBO Rate Advances at any time without payment of premium or penalty, but the
Company may change from LIBO Rate Advances to Prime Rate Advances only as of the
last day of a LIBO Rate Interest Period without payment of premium or penalty.
In the absence of any specific rate election by the Company, the Line of Credit
Notes shall bear interest at the Prime Rate. Not more than twelve (12) Line of
Credit LIBO Rate Tranches shall be permitted at any time, and no Line of Credit
Tranche may have a principal amount of less than $1,000,000. Each Tranche shall
be proportionately the same on each Line of Credit Note.
3.2 INTEREST - TERM LOAN. The unpaid principal of the Term Notes shall
bear interest at one (or both) of the following interest rates, at the Company's
option: (i) Prime Rate plus 0.25% or (ii) LIBO Rate plus the Applicable LIBO
Rate Margin plus 0.25%. The Company shall notify the Administrative Agent of the
Company's desire to change the interest rate on the Term Notes (or any portion
thereof) not less than three (3) Business Days prior to the date on which such
change shall be effective. The Company may change from Prime Rate Advances to
LIBO Rate Advances at any time without payment of premium or penalty, but the
Company may change from LIBO Rate Advances to Prime Rate Advancesy only as of
the last day of a LIBO Rate Interest Period without payment of premium or
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penalty. In the absence of any specific interest rate election by the Company,
the Term Notes shall bear interest at the Prime Rate plus 0.25%/ Not more than
two (2) Term Loan LIBO Rate Tranches shall be permitted at any time, and no Term
Loan Tranche may have a principal amount of less than $1,000,000. Each Tranche
shall be proportionately the same on each Term Note.
3.3 INTEREST - ADMINISTRATIVE AGENT'S DETERMINATION. (a) The
Administrative Agent shall determine the amount of interest payable on each
Tranche, and its determination shall be conclusive in the absence of manifest
error. The Administrative Agent shall endeavor to notify the Company of the
amount of any interest payment prior to the date on which an interest payment is
due: PROVIDED that the failure of the Administrative Agent to provide such
notice shall not affect the Companies' obligation to pay interest on such date.
(b) If the Administrative Agent gives notice to the Company that no
LIBO Rate is quoted to the Administrative Agent for the applicable LIBO Rate
Interest Period or in the applicable amounts, then (i) the obligation of the
Lenders to make a LIBO Rate Advance and the ability of the Company to select the
LIBO Rate for a Tranche shall be suspended, and (ii) the Companies shall either
prepay all LIBO Rate Tranches for which an interest rate is to be determined on
such date or the Notes shall thereafter bear interest at the Prime Rate.
(c) If any applicable domestic or foreign law, treaty, rule or
regulation (whether now in effect or hereinafter enacted or promulgated,
including Regulation D of the Board of Governors of the Federal Reserve System)
or any interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof (whether or not having
the force of law):
(i) changes the basis of taxation of payments to the Lenders
of any principal, interest, or other amounts attributable to any LIBO
Rate Tranche (other than taxes imposed on the overall net income of the
Lenders or any lending office of the Lenders by any jurisdiction in
which the Lenders or any such lending office is located);
(ii) changes, imposes, modifies, applies or deems applicable
any reserve, special deposit, insurance assessments or similar
requirements in respect of any such LIBO Rate Tranche (excluding those
for which the Lenders are fully compensated pursuant to adjustments
made in the definition of LIBO Rate) or against assets of, deposits
with or for the account of, or credit extended by, the Lenders; or
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(iii) imposes on the Lenders or the interbank eurocurrency
deposit and transfer market any other condition affecting any such LIBO
Rate Tranche,
and the result of any of the foregoing is to increase the cost to the Lenders of
funding or maintaining any such LIBO Rate Tranche (other than costs for which
the Lenders are fully compensated pursuant to adjustments made in the definition
of LIBO Rate) or to reduce the amount of any sum receivable by the Lenders in
respect of any such LIBO Rate Tranche by an amount deemed by the Lenders to be
material, then the Administrative Agent shall promptly notify the Companies in
writing (such writing including the necessary calculations in reasonable detail)
of the happening of such event and the Companies shall upon demand pay to the
Lenders such additional amount or amounts as will compensate the Lenders for
such additional cost or reduction accrued as of the time of such notice and
thereafter, the Companies may either continue to pay to the Lenders such
additional amount as will compensate the Lenders for the additional cost or
reduction of LIBO Rate Tranches, or the Companies may elect, by giving to the
Administrative Agent not less than three Business Days' notice, to change the
interest rate applicable to such Tranche from the LIBO Rate plus the Applicable
LIBO Rate Margin to the Prime Rate.
(d) Notwithstanding any other provision hereof, if any change in
applicable laws, treaties, rules or regulations or in the interpretation or
administration thereof of or in any jurisdiction whatsoever, domestic or
foreign, shall make it unlawful or impracticable for the Lenders to maintain
LIBO Rate Tranches bearing interest at the LIBO Rate plus the Applicable LIBO
Rate Margin, or shall materially restrict the authority of the Lenders to
purchase, sell or take certificates of deposit or offshore deposits of dollars,
then all LIBO Rate Tranches which are then outstanding and which cannot lawfully
or practicably be maintained shall immediately cease to bear interest at the
LIBO Rate plus the Applicable LIBO Rate Margin and shall commence to bear
interest at the Prime Rate. The Companies agree to indemnify the Lenders and
hold them harmless against all costs, expenses, claims, penalties, liabilities
and damages which may result from any such change in law, treaty, rule,
regulation, interpretation or administration, arising out of or in connection
with this Agreement and the Loans.
(e) The Companies will indemnify the Lenders against, and reimburse
each Lender on demand for, any loss or expense incurred or sustained by the
Lenders (including without limitation, any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by the
Lenders to fund or maintain LIBO Rate Tranches) as a result of (i) any payment
or prepayment (whether authorized or required hereunder or otherwise) of all or
a portion of any such Tranche on a day other than the day on which
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the applicable LIBO Rate Interest Period ends, (ii) any payment or prepayment,
whether required hereunder or otherwise, of LIBO Rate Tranches made after the
delivery, but before the effective date, of an election to have the LIBO Rate
plus the Applicable LIBO Rate Margin apply to a LIBO Rate Tranche, if such
payment or prepayment prevents such election from becoming fully effective, or
(iii) the failure of any LIBO Rate Tranche to be made by the Lenders or of any
such election to become effective due to any condition precedent to a LIBO Rate
Tranche not being satisfied or due to any other action or inaction of the
Companies. For purposes of this Subsection, funding losses arising by reason of
liquidation or reemployment of deposits or other funds acquired by the Lenders
to fund or maintain LIBO Rate Tranches shall be calculated as (A) the remainder,
if a positive number, obtained by subtracting (1) the yield (reflecting both
stated interest rate and discount, if any) to maturity of obligations of the
United States Treasury as determined by the Administrative Agent in an amount
equal or comparable to such advance for the period of time commencing on the
date of the payment, prepayment or change of rate as provided above and ending
on the last day of the subject LIBO Rate Interest Period, from (2) the LIBO Rate
plus the Applicable LIBO Rate Margin of the subject LIBO Rate Interest Period,
(B) TIMES the number of days from the date of payment, prepayment or change of
rate to the last day of the LIBO Rate Interest Period, divided by 360, (C) TIMES
the amount of the applicable LIBO Rate Tranche. Any payment due under this
section will be paid to the Administrative Agent within five days after the
Administrative Agent delivers to the Company a certificate setting forth in
reasonable detail the amount of such payment, which certificate shall be
conclusive in the absence of manifest error.
(f) The Companies covenant and agree that:
(i) The Companies will pay, when due and on an after-tax
basis, all present and future income, stamp and other taxes, levies,
costs and charges whatsoever imposed, assessed, levied or collected on
or in respect of any LIBO Rate Tranche (other than taxes, levies, costs
or charges imposed on or measured by the overall net income of the
Lenders, or any lending office of the Lenders by any jurisdiction in
which the Lenders or any such lending office is located) (all such
non-excluded taxes, levies, costs and charges being collectively called
"Reimbursable Taxes"). Promptly after the date on which payment of any
Reimbursable Taxes is due pursuant to applicable law, the Companies
will, at the request of the Administrative Agent, furnish to the
Lenders evidence in form and substance satisfactory to the Lenders that
the Companies have met their obligation under this subsection.
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(ii) The Companies will indemnify the Administrative Agent and
the Lenders against, and reimburse the Administrative Agent and the
Lenders on demand for, any Reimbursable Taxes paid by the
Administrative Agent and the Lenders and any loss, liability, claim or
expense, including interest, penalties and legal fees, that the
Administrative Agent and the Lenders may incur at any time arising out
of or in connection with the failure of the Companies to make any
payment of Reimbursable Taxes when due. Any payment due under this
subsection will be paid to the Administrative Agent within five days
after demand therefor by the Administrative Agent.
(iii) All payments on account of the principal of, and
interest on, LIBO Rate Tranches and all other amounts payable by the
Companies to the Lenders hereunder shall be made free and clear of and
without reduction by reason of any Reimbursable Taxes.
(iv) If the Companies are ever required to pay any
Reimbursable Taxes with respect to any LIBO Rate Tranches, the
Companies may elect, by giving to the Administrative Agent not less
than three (3) Business Days' notice, to change the interest rate
applicable to any such advance from the LIBO Rate plus the Applicable
LIBO Rate Margin to the Prime Rate, but such election shall not
diminish the Companies' obligation to pay all Reimbursable Taxes
theretofore imposed, assessed, levied or collected.
(g) If any applicable law or regulation, or the action of any
applicable regulatory requirement increases the reserves or capital required for
the Credit, the Administrative Agent shall promptly deliver a certificate to the
Company specifying in reasonable detail the additional amount as will compensate
the Lenders for the additional costs, which certificate shall be conclusive in
the absence of manifest error. The Companies shall pay the amount specified in
such certificate promptly upon receipt.
3.4 PAYMENT DATES; LATE PAYMENT. Interest on Prime Rate Advances under
any of the Loans shall be payable quarterly in arrears on the last day of each
March, June, September and December, beginning December 31, 1995; interest on
LIBO Rate Advances shall be payable on the last day of each LIBO Rate Interest
Period (1 week, 2 weeks, 1 month, 3 months or 6 months), and in the case of
6-month LIBO Rate Interest Periods, also at the end of the first 3 months
thereof. Interest after maturity of the Notes for any reason whatsoever shall be
increased to the Prime Rate plus three percent (3%) and shall be payable on
demand.
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Principal on the Line of Credit Notes shall be payable on September 30, 1998.
Principal on the Term Loan shall be payable in 16 equal successive quarterly
installments, each equal to 1/16th of the outstanding principal balance of the
Line of Credit on September 30, 1998, beginning December 31, 1998; the balance
of all outstanding principal and accrued but unpaid interest shall be payable at
maturity on September 30, 2002. Principal payments under each respective Loan
shall be allocated first to Prime Rate Tranches, then to LIBO Rate Tranches
having a LIBO Rate Interest Period ending on the quarterly installment payment
date, and then to LIBO Rate Tranches having a LIBO Rate Interest Period ending
subsequent to the quarterly installment payment date (in which case the
Companies shall pay any loss or expense incurred or sustained by the Lenders as
specified in Section 3.4(e) hereof).
3.5 FACILITY FEE; AGENTS' FEE.
(a) A facility fee equal to the Applicable Facility Fee Rate on the
daily average Available Credit shall be payable by the Companies quarterly in
arrears on the last day of each March, June, September and December, beginning
December 31, 1995 through and including September 30, 1998.
(b) An Agents' fee for the Credit Facility of $40,000 per year shall be
payable by the Companies to the Agents (which shall be shared equally and
retained by the Agents) in advance on the date of this Agreement and each
succeeding anniversary date hereof until the Loans are paid in full and this
Agreement is terminated.
3.6 METHOD OF CALCULATING INTEREST AND FEES. Interest and
the facility fee shall be computed on the basis of a year
consisting of 360 days and a month consisting of 30 days and paid
for actual days elapsed.
Section 4. PAYMENTS, REDUCTION OR TERMINATION OF THE CREDIT
AND PREPAYMENTS.
4.1 PLACE OF PAYMENT. All payments hereunder (including payments of
interest, principal and fees with respect to the Line of Credit Notes and the
Term Notes) shall be made by the Companies to the Administrative Agent in
immediately available funds, prior to 1:00 p.m. (Central time) at its offices at
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000, or at such other place as may
be designated by Administrative Agent to the Companies in writing. Any payment
received after 1:00 p.m. (Central time) shall be deemed received on the next
Business Day. Whenever any payment to be made hereunder or under the Line of
Credit Notes or the Term Notes fall on a date other than a Business Day, such
payment may be made on
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the next succeeding Business Day, and such extension of time shall be included
in the computation of payment of interest or any fees.
4.2 REDUCTION OF CREDIT UNDER THE LINE OF CREDIT; PREPAYMENTS. (a) The
Companies may from time to time (in the case of Prime Rate Tranches) or at the
end of any LIBO Rate Interest Period (in the case of LIBO Rate Tranches), upon
at least three (3) Business Days's prior telephonic notice (confirmed in
writing) to Administrative Agent, permanently reduce the amount of the
Commitments available under the Line of Credit (which Commitments shall be
reduced proportionately by the Lenders), but only upon payment of the
outstanding principal amount of the Line of Credit Notes in excess of the then
reduced amount of the Commitments available under the Line of Credit. Any such
reduction shall be in an amount of $10,000,000.00 or an integral multiple
thereof. The Companies may at any time (in the case of Prime Rate Tranches) or
at the end of any LIBO Rate Interest Period (in the case of LIBO Rate Tranches),
on like notice, terminate the Commitments available under the Line of Credit
upon payment in full of the Line of Credit Notes and other liabilities of the
Companies hereunder. In the case of either a reduction or termination of the
Commitments, the Companies shall thereafter have no right to increase or restore
the Commitments.
(b) The Companies may from time to time (in the case of Prime Rate
Tranches) or at the end of any LIBO Rate Interest Period (in the case of LIBO
Rate Tranches) prepay the principal of the Line of Credit Notes in whole or in
part without premium; provided, however, any partial prepayment of principal
shall be in an amount of $1,000,000.00 or any integral multiple thereof. Any
prepayment of the principal of the Line of Credit Note shall include accrued
interest to the date of prepayment on the principal amount being prepaid.
4.3 PREPAYMENTS OF TERM NOTES. The Companies may from time to time (in
the case of Prime Rate Tranches) or at the end of any LIBO Rate Interest Period
(in the case of LIBO Rate Tranches), upon at least one Business Day's prior
telephonic notice (confirmed in writing) to the Administrative Agent, prepay the
principal of the Term Notes in whole or in part without premium; provided,
however, any partial prepayment of principal shall be in an amount of
$1,000,000.00 or an integral multiple thereof. Any prepayment of the principal
of the Term Notes shall include accrued interest to the date of prepayment on
the principal amount being prepaid. All prepayments when made shall be applied
to unpaid installments of principal in the inverse order of maturity. All
prepayments shall be in addition to and not in lieu of, and shall not relieve
the Companies from the obligation to pay, scheduled installments of principal in
accordance with the Term Notes.
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4.4 PRO RATA PAYMENTS. All payments and prepayments of principal,
interest, fees (except the Agents' fee described in Section 3.5(b) hereof) and
other amounts paid by the Companies to the Administrative Agent from time to
time under this Agreement shall be promptly wired by the Administrative Agent to
the Lenders in proportion to their Commitments.
Section 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANIES.
The Companies represent and warrant to the Lenders that:
5.1 CORPORATE EXISTENCE. Each of the Companies is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated and is duly qualified and in good
standing in all jurisdictions wherein the property it owns or the business it
transacts make such qualification necessary as a foreign corporation, except
where the failure to so qualify would not materially impair the ability of the
Company or any of its Subsidiaries to operate its business or own its assets;
and each of the Companies has and will continue to have all necessary corporate
power and authority to acquire, own and hold the property and all other
properties it purports to own and hold and to carry on its business as now
conducted. The Domestic Subsidiaries listed on EXHIBIT "A" attached hereto
constitute all of the Domestic Subsidiaries of the Company.
5.2 AUTHORIZATION; VALIDITY. Each of the Companies is and/or has been
duly authorized to execute and deliver this Agreement, the Line of Credit Notes
and the Term Notes and is and will continue to be duly authorized to borrow
monies hereunder and to perform its obligations under this Agreement, the Line
of Credit Notes and the Term Notes, as the case may be. This Agreement, the Line
of Credit Notes and the Term Notes, as executed and when delivered, shall
constitute the legal, valid and binding obligations of each of the Companies,
enforceable in accordance with their respective terms.
5.3 CONFLICTING AGREEMENTS AND OTHER MATTERS. Neither the Company nor
any of its Subsidiaries is a party to any contract or agreement or subject to
any charter or other corporate restriction which materially and adversely
affects the business, property, assets, or financial condition of the Company
and its Subsidiaries, taken as a whole. Neither the execution nor delivery of
this Agreement or the Notes, nor fulfillment of nor compliance with the terms
and provisions hereof and of the Notes will conflict with, or result in a breach
of the terms, conditions or provisions of, or constitute a default under, the
charter or by-laws of the Company or any of its Subsidiaries, any award of any
arbitrator or any agreement (including any agreement with stockholders) or
instrument to which the Company or any of its Subsidiaries is now a party, or
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result in the creation of any Lien on any property or assets of the Company or
any of its Subsidiaries, or constitute a violation of any law, statute, rule,
regulation, order, judgment or decree to which the Company or any of its
Subsidiaries is subject. Neither the Company nor any of its Subsidiaries is a
party to, or otherwise subject to any provision contained in, any instrument
evidencing indebtedness of the Company or such Subsidiary, any agreement
relating thereto or any other contract or agreement (including its charter)
which (i) limits the amount of, or otherwise imposes restrictions on the
incurring of, Debt of the Companies of the type to be evidenced by the Credit,
or (ii) which imposes restrictions on the granting of Liens by the Companies on
otherwise unencumbered assets of the Companies as security for the Credit.
5.4 FINANCIAL STATEMENTS. The Company has furnished the Lenders with
the consolidated balance sheets of the Company and its Subsidiaries as at fiscal
year end in each of the years 1993 through 1995, inclusive, and for the
six-month period ending September 30, 1995 and a consolidated statement of
income and statement of cash flows for each such fiscal year and such six-month
period, all identified by a principal financial officer of such Company and all
(other than any financial information for such six-month period) certified by
KPMG Peat Marwick LLP (or its predecessor). Such financial statements (including
any related schedules and/or notes) are true and correct in all material
respects (subject, as to interim statements, to changes resulting from audits
and normal year-end adjustments) and have been prepared in accordance with
generally accepted accounting principles, and, unless otherwise set forth
therein, consistently followed throughout the periods involved and show all
liabilities, direct and contingent, of the Company and its Subsidiaries required
to be shown in accordance with such principles. The balance sheets fairly
present the condition of the Company and its Subsidiaries as at the dates
thereof, and the related statements of earnings, stockholders' equity and cash
flows fairly present the results of the operations of the Company and its
Subsidiaries for the periods indicated. There has been no material adverse
change in the business, condition or operations (financial or otherwise) of the
Company and its Subsidiaries taken as a whole, since September 30, 1995.
5.5 LITIGATION AND CONTINGENT LIABILITIES. No litigation or
governmental proceedings are pending or threatened against the Company or any of
its Subsidiaries, the results of which are likely to materially adversely affect
the financial condition or operations of the Company and its Subsidiaries on a
consolidated basis, except as provided for or disclosed in the financial
statements referred to in Section 5.4 hereof. Other than any liability incident
to such litigation or proceedings provided for or disclosed in the financial
statements referred to in Section 5.4
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hereof, or any other material contingent liabilities provided for or disclosed
in the financial statements referred to in Section 5.4 hereof, the Company and
its Subsidiaries, on a consolidated basis, do not have any material contingent
liabilities.
5.6 OUTSTANDING DEBT. Neither the Company nor any of its Subsidiaries
has outstanding any Debt except as permitted by Section 6.9 and as set forth on
SCHEDULE 5 attached hereto and made a part hereof. There exists no default under
the provisions of any instrument evidencing Debt or of any agreement relating
thereto.
5.7 TITLE TO PROPERTIES. Except for assets which are the subject of
capitalized lease obligations, the Company and its Subsidiaries each have and
will continue to have good and marketable title to their respective properties
and assets, including the properties and assets reflected in the financial
statements described in Section 5.4 hereof, subject to no Lien of any kind
except Liens permitted by Section 6.8 hereof. All leases necessary in any
material respect for the conduct of the respective businesses of the Company and
its Subsidiaries are valid and subsisting and are in full force and effect.
5.8 PURPOSE. The proceeds of the Loan will be used by the
Companies only for the purposes specified in Section 1.3 hereof.
5.9 MARGIN STOCK. Neither the Company nor any of its Subsidiaries is
engaged in the business of purchasing or selling margin stock (as defined in any
regulation of the Board of Governors of the Federal Reserve System) or extending
credit to others for the purpose of purchasing or carrying margin stock and no
part of the proceeds of any borrowing hereunder will be used to purchase or
carry any margin stock or for any other purpose which would violate any of the
margin regulations of such Board of Governors.
5.10 ERISA. No accumulated funding deficiency (as defined in Section
302 of ERISA and Section 412 of the Code), whether or not waived, exists with
respect to any Plan (other than a Multiemployer Plan). No liability to the PBGC
has been or is expected by the Company to be incurred with respect to any Plan
(other than a Multiemployer Plan) by the Company or any of its Subsidiaries
which is or would be materially adverse to the Company and its Subsidiaries
taken as a whole. Neither the Company nor any of its Subsidiaries has incurred
or presently expects to incur any withdrawal of liability under Title IV of
ERISA with respect to any Multiemployer Plan which is or would be materially
adverse to the Company and its Subsidiaries taken as a whole. The execution and
delivery of this Agreement will not, and the delivery of the Notes will not,
involve any transaction which is subject to the prohibitions of Section 406 of
ERISA or in connection with which a
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tax could be imposed pursuant to Section 4975 of the Code. The term "Code" shall
mean the Internal Revenue Code of 1986, as amended; the term "Plan" shall mean
an "employee pension benefit plan" (as defined in Section 3 of ERISA) which is
or has been established or maintained, or to which contributions are or have
been made, by the Company or by any trade or business, whether or not
incorporated, which, together with the Company, is under common control, as
described in Section 414(b) or (c) of the Code; and the term "Multiemployer
Plan" shall mean any plan which is a "multiemployer plan" (as such term is
defined in Section 4001(a)(3) of ERISA).
5.11 CONSENTS. No consent, approval or authorization of, or
registration or declaration with, any federal or state governmental authority or
other regulatory agent for the validity of the execution and delivery or for the
performance by any of the Companies of this Agreement, the Line of Credit Notes
and the Term Notes or any agreement or instrument executed in connection
herewith is or will be required.
5.12 TAX RETURNS; TAXES. The Company has and each of its Subsidiaries
have filed all federal, state, foreign and other income tax returns which, to
the knowledge of the officers of the Company, are required to be filed by any
jurisdiction, and each has paid and will pay all taxes which have or
subsequently become due pursuant to said returns or pursuant to any assessments,
except those contested in good faith by appropriate proceedings and for which
sufficient reserves have been or will be established.
5.13 COMPLIANCE WITH LAWS. The Company and each of its Subsidiaries is
in substantial compliance with all laws and regulations applicable to the
Companies and the businesses conducted by them (including without limitation,
laws and regulations relating to pollution and environmental control, equal
employment opportunity and employer safety) in all jurisdictions in which the
Company and each of its Subsidiaries is presently doing business, and the
Company will substantially comply and cause each of its Subsidiaries to
substantially comply with all such laws and regulations which may be legally
imposed in the future in jurisdictions in which the Company or any Subsidiary
may then be doing business.
5.14 FOREIGN ASSETS CONTROL REGULATIONS. Neither the borrowing by the
Companies hereunder nor their use of the proceeds thereof will violate the
Foreign Assets Control Regulations, the Cuban Assets Control Regulations, the
Rhodesian Sanctions Regulations, the Iranian Assets Control Regulations, the
Nicaraguan Trade Control Regulations, the South African Transactions
Regulations, the Libyan Sanctions Regulations, the Iranian Transactions
Regulations, the Panamanian Transactions Regulations,
- 14 -
Iraqi Sanctions Regulations, the Kuwaiti Assets Control Regulations, the Haitian
Transactions Regulations or the Federal Republic of Yugoslavia (Serbia and
Montenegro) Sanctions Regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V), or the Comprehensive Anti-Apartheid Act of 1986
(P.L. 99-440), or any similar asset control regulations now existing or
hereafter promulgated by the United States Treasury Department.
5.15 DISCLOSURE. Neither this Agreement nor any other document,
certificate or statement furnished to the Lenders by or on behalf of the Company
and the Subsidiaries in connection herewith contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein and therein not misleading. There is no fact
peculiar to the Company or any of its Subsidiaries which materially adversely
affects or in the future may (so far as the Company can now foresee) materially
adversely affect the business, property or assets, or financial condition, of
the Company and any of its Subsidiaries, taken as a whole, and which has not
been set forth in this Agreement or in the other documents, certificates and
statements furnished to you by or on behalf of the Company prior to the date
hereof in connection with the transactions contemplated hereby.
5.16 ENVIRONMENTAL MATTERS. (i) Neither the Company nor any Subsidiary
is subject to any Environmental Liability or Environmental Requirement which
could reasonably be expected to have a material adverse effect on the business,
financial condition, operations or prospects of the Company and its
Subsidiaries, taken as a whole.
(ii) Except as set forth on SCHEDULE 6-PART 1, neither the Company nor
any Subsidiary has been designated as a potentially responsible party under
CERCLA or under any state statute similar to CERCLA. None of the Properties has
been identified on any current or proposed National Priorities List under 40
C.F.R. ss.300 or any list arising from a state statute similar to CERCLA. None
of the Properties has been identified on any CERCLIS list.
(iii) No Hazardous Materials have been or are being used, produced,
manufactured, processed, generated, stored, disposed of, released, managed at or
shipped or transported to or from the Properties or are otherwise present at,
on, in or under the Properties or, to the best knowledge of the Companies, at or
from any adjacent site or facility, except for Hazardous Materials used,
produced, manufactured, processed, generated, stored, disposed of, released and
managed in the ordinary course of business in compliance with all applicable
Environmental Requirements, except where failure to comply could not reasonably
be expected to have a
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material adverse affect on the business, operations, or financial condition of
the Company and its Subsidiaries, taken as a whole.
(iv) Except as set forth in SCHEDULE 6-PART 2, the Company and each of
its Subsidiaries has procured all permits, licenses or authorizations (or any
variances or waivers) necessary under Environmental Requirements for the conduct
of its business.
Section 6. COVENANTS OF THE COMPANIES.
From the date of this Agreement and thereafter until the expiration or
termination of the Credit Facility and until the Line of Credit Notes and the
Term Notes and other liabilities of the Companies hereunder are paid in full:
6.1 FINANCIAL STATEMENTS: The Company agrees that it will
furnish to the Administrative Agent one copy for each of the
Lenders of the following:
(a) as soon as practicable and in any event within
forty-five (45) days after the end of each
quarterly period (other than the last quarterly
period) in each fiscal year, a consolidated balance
sheet of the Company and its Subsidiaries as at the
end of such quarterly period and the related
statement of earnings and cash flows for the period
from the beginning of the current fiscal year to
the end of such quarterly period, setting forth in
each case in comparative form figures for the
corresponding period in the preceding fiscal year,
all in reasonable detail and certified by an
authorized financial officer of the Company,
subject to changes resulting from year end
adjustments; provided, however, that delivery
pursuant to clause (c) below of copies of the
Quarterly Report on Form 10-Q of the Company for
such quarterly period filed with the Securities and
Exchange Commission shall be deemed to satisfy the
requirements of this clause (a);
(b) as soon as practicable and in any event within
ninety (90) days after the end of each fiscal year,
a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year and the
related statements of earnings, stockholders'
equity and cash flow for such year, setting forth
in each case in comparative form corresponding
consolidated figures from the preceding annual
audit, all in accordance with generally accepted
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accounting principles and unrestricted in audit scope and
certified as to consolidated statements of the Company by
independent public accountants of recognized standing selected
by the Company whose certificate shall be in scope and
substance satisfactory to Lenders; provided, however, that
delivery pursuant to clause (c) below of copies of the Annual
Report on Form 10-K of the Company for such fiscal year filed
with the Securities and Exchange Commission shall be deemed to
satisfy the requirements of this clause (b);
(c) promptly upon transmission thereof, copies of all
such financial statements, proxy statements,
notices and reports as the Company shall send to
its public stockholders and copies of all
registration statements (without exhibits) and all
reports which the Company files with the Securities
and Exchange Commission (or any governmental body
or agency succeeding to the functions of the
Securities and Exchange Commission);
(d) promptly upon receipt thereof, a copy of each other
report submitted to the Company or any of its
Subsidiaries by independent accountants in
connection with any annual, interim or special
audit made by them of the books of the Company or
any of its Subsidiaries and which the Company or
any of its Subsidiaries shares with the audit
committee of the Board of Directors of the Company;
(e) with reasonable promptness, such other financial
data as Lenders may reasonably request;
(f) as soon as practicable and in any event within ninety (90)
days after the end of each fiscal year, a copy of the
Company's internal statement of operations by area; and
(g) as soon as practicable but in any event not later
than ninety (90) days after the beginning of each
fiscal year, a consolidated budget of the Company
and its Subsidiaries for the ensuing fiscal year,
setting forth the anticipated revenues and expenses
for such year, the incurrence and repayment of Debt
during such year, and such other matters as the
Lenders may reasonably require.
Together with each delivery of financial statements required by clauses (a) and
(b) above, the Company will deliver to the
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Administrative Agent seven originals of an Officer's Certificate demonstrating
(with computations in reasonable detail) compliance with Sections 6.9, 6.13 and
6.14, stating that there exists no Event of Default or Default, or, if any such
Event of Default or Default exists, specifying the nature thereof, the period of
existence thereof and what action the Company proposes to take with respect
thereto. Together with each delivery of financial statements required by clause
(b) above, the Company will also deliver to the Administrative Agent seven
originals of a certificate of said accountants stating that, in making the audit
necessary to the certification of such financial statements, they have obtained
no knowledge of any Default or any Event of Default, or, if any such Event of
Default or Default exists, specifying the nature and period of existence
thereof. Such accountants, however, shall not be liable to anyone by reason of
their failure to obtain knowledge of any such Event of Default or Default which
would not be disclosed in the course of an audit conducted in accordance with
generally accepted auditing standards.
The Companies also agree that forthwith upon the chief executive
officer, principal financial officer or principal accounting officer of the
Company obtaining knowledge of:
(i) an Event of Default or Default;
(ii) a material adverse change in the financial
condition, business or operations of the Company
and its Subsidiaries, taken as a whole;
(iii) the institution of legal proceedings against the
Company and/or any Subsidiary, which is likely to
materially adversely affect the financial
condition, business or operations of the Company
and its Subsidiaries, taken as a whole, or which in
any manner draws into question the validity of or
is likely to impair the ability of the Companies to
perform their obligations under this Agreement or
the Notes;
(iv) the occurrence of any default (after the passage of
any grace period) by a Company under any agreement or
note evidencing borrowed money for an aggregate
initial principal amount equal to or greater than
$1,000,000;
(v) the occurrence of any other event that is likely to
impair the ability of the Companies to meet their
obligations hereunder; or
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(vi) any (A) Environmental Liability which is likely to
materially adversely affect the financial
condition, business or operations of the Company
and its Subsidiaries, taken as a whole, (B)
pending, threatened or anticipated Environmental
Proceedings, which is likely to materially
adversely affect the financial condition, business
or operations of the Company and its Subsidiaries,
taken as a whole, (C) Environmental Notice which is
likely to materially adversely affect the financial
condition, business or operations of the Company
and its Subsidiaries, taken as a whole, (D)
Environmental Judgment or Order which is likely to
materially adversely affect the financial
condition, business or operations of the Company
and its Subsidiaries, taken as a whole, or (E)
Environmental Releases at, on, in, under or in any
way materially affecting the Properties;
the Company will deliver to the Administrative Agent an Officer's Certificate
specifying the nature and period of existence thereof and what action the
Company has taken, is taking or proposes to take with respect thereto.
The Administrative Agent will promptly distribute to the Lenders,
originals (to the extent available) or copies of the financial statements and
reports, the Officer's Certificates and all other documents received by the
Administrative Agent from the Borrower pursuant to this Section 6.1.
6.2 INSPECTION OF PROPERTY. The Companies agree that they will permit
the Administrative Agent, each Lender (with prior notice to the Administrative
Agent) and any Person designated by the Administrative Agent in writing, at
Administrative Agent's (or Lender's) expense, to visit and inspect any of the
properties of the Company and its Subsidiaries, to examine the corporate books
and financial records of the Companies and make copies thereof or extracts
therefrom, and to discuss the affairs, finances and accounts of any of such
corporations with the principal officers of each of the Companies and their
respective independent public accountants, all at such reasonable times and as
often as Administrative Agent or the Lenders may reasonably request.
6.3 COVENANT TO SECURE NOTES EQUALLY. (a) The Companies agree that if
the Company or any Subsidiary shall create or assume any Lien of any kind upon
any of its property or assets, whether now owned or hereafter acquired, other
than Liens permitted by the provisions of Section 6.8 (unless prior written
consent to the creation or assumption thereof shall have been obtained), they
will make or cause to be made effective provisions whereby the Notes
- 19 -
will be secured by such Lien equally and ratably with any and all other Debt
thereby secured, as long as any such other Debt shall be so secured.
(b) The Companies agree not to become a party to, or otherwise be
subject to, any provision contained in any instrument evidencing indebtedness of
any of the Companies which imposes restrictions on the granting of Liens by the
Companies on otherwise unencumbered assets of the Companies as security for the
Notes, except as set forth herein.
6.4 GUARANTEED OR COLLATERALIZED OBLIGATIONS. The Company agrees that
if it or any of its Subsidiaries incurs or permits to exist any Debt in any
event in excess of an aggregate principal amount equal to $10,000,000 guaranteed
or collateralized (except as permitted by Sections 6.8(v) and 6.8(ix) hereof) in
any other manner by any Person (other than any governmental entity, or other
than in connection with (y) bonds, letters of credit, letters of undertaking, or
other instruments related to litigation, or the avoidance thereof, involving the
Company or its Subsidiaries, including the release of assets of the Company or
its Subsidiaries in connection with such litigation, or (z) performance bonds,
surety bonds, letters of credit, bank guaranties, and other instruments related
to the conduct of the business of the Company or its Subsidiaries, excluding any
obligation for borrowed money), it will simultaneously cause such Person to
execute and deliver to the Lenders a guaranty agreement or collateral agreement,
as the case may be, in form and substance satisfactory to the Lenders either (i)
guaranteeing payment of the principal amount of the Notes and any premium and
interest thereon, which bears the same ratio to the total unpaid principal
amount of the Notes as the amount of such other obligation which is guaranteed
bears to the total unpaid principal amount of such other obligation or (ii)
collateralizing the Notes equally and ratably with such other obligation, as the
case may be. Nothing contained in the foregoing shall be deemed to permit the
Companies to incur Liens to Persons other than the Lenders in excess of those
permitted by Section 6.8 hereof.
6.5 MAINTENANCE OF INSURANCE. Each Company agrees that it and each
Subsidiary will maintain, with responsible insurers, insurance with respect to
its properties and business against such casualties and contingencies
(including, but not limited to, public liability, larceny, embezzlement or other
criminal misappropriation, pollution and war risks) and in such amounts as is
customary in the case of similarly situated corporations engaged in the same or
similar businesses.
6.6 MAINTENANCE OF CORPORATE EXISTENCE/COMPLIANCE WITH
LAW/PRESERVATION OF PROPERTY. Except as allowed under Sections
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6.11 and 6.12, each Company covenants that it and each Subsidiary will do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect the corporate existence of such Company and its Subsidiaries and
comply in all material respects with all laws and regulations (including,
without limitation, laws and regulations relating to equal employment
opportunity and employee safety) applicable to it and its Subsidiaries, the
failure with which to comply is likely to materially adversely affect the
business, operations or financial condition of such Company and its
Subsidiaries, taken as a whole; at all times maintain, preserve and protect all
material intellectual property of such Company and its Subsidiaries, and
preserve all the remainder of its material property used or useful in the
conduct of its business and keep the same in good repair, working order and
condition.
6.7 COMPLIANCE WITH ENVIRONMENTAL LAWS. Each of the Companies will, and
the Company will cause each of its Subsidiaries to, comply in a timely fashion
with, or operate pursuant to valid waivers of the provisions of, all
Environmental Requirements including, without limitation, requirements with
respect to the emission of wastewater effluent, solid and hazardous waste and
air pollution, and any other applicable requirements for conducting, on a timely
basis, periodic tests and monitoring for contamination of ground water, surface
water, air and land and for biological toxicity of the aforesaid, and comply
with any applicable regulations (except to the extent such regulations are
waived by appropriate governmental authorities) of the Environmental Protection
Agency or other relevant federal, state or local governmental authority, except
where the failure to do so is not likely to materially adversely affect the
business, operations or financial condition of the Company and the Subsidiaries,
taken as a whole. To the fullest extent permitted by applicable law, each
Company agrees to indemnify and hold the Agents, the Lenders, their officers,
agents and employees harmless from any loss, liability, claim or expense that
they may incur or suffer as a result of a breach by the Company or any of the
Subsidiaries, as the case may be, of this covenant. No Company shall be deemed
to have breached or violated this Section 6.7 if such Company or Subsidiary is
challenging in good faith by appropriate proceedings diligently pursued the
application or enforcement of such Environmental Requirements for which adequate
reserves have been established in accordance with generally accepted accounting
principles.
6.8 LIENS. The Companies agree that they will not and will not permit
any Subsidiary to create, assume or suffer to exist any Lien upon any of their
respective property or assets, whether now owned or hereafter acquired (whether
or not provision is made for the equal and ratable securing of the Credit in
accordance with the provisions of Section 6.3) except:
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(i) Liens for taxes (including ad valorem and property
taxes) not yet due or which are being contested in
good faith by appropriate proceedings;
(ii) Liens incidental to the conduct of their businesses
or the ownership of their property and assets which
were not incurred in connection with the borrowing
of money or the obtaining of advances of credit,
and which do not in the aggregate materially
detract from the value of their property or assets
or materially impair the use thereof in the
operation of their business;
(iii) presently existing Liens on property or assets of
any of the Subsidiaries to secure obligations of
any of such Subsidiaries to the Company or another
Subsidiary;
(iv) presently existing Liens on property or assets of
any Foreign Subsidiary consisting of marine
mortgages on new vessels under construction or on
vessels already constructed, which Liens were
required as a condition of new vessel financing
from non-United States sources, all of which Liens
(other than Liens which are incidental and do not
materially affect such property or assets) are set
forth on SCHEDULE 2-PART 1 attached hereto and made
a part hereof;
(v) any presently existing Lien which existed on any
real or personal property of any corporation at the
time it became a Subsidiary, or which existed prior
to the time of acquisition upon any real or
personal property acquired by the Company or any
Subsidiary through purchase, merger or
consolidation or otherwise, whether or not assumed
by the Company or any Subsidiary, or placed upon
real or personal property acquired by the Company
or any Subsidiary, in connection with the purchase
thereof, all of which Liens (other than Liens which
are incidental and do not materially affect such
property) are set forth on SCHEDULE 2-PART 2
attached hereto and made a part hereof, PROVIDED
that any such Lien shall not encumber any other
property of the Company or any Subsidiary;
(vi) any Lien renewing, extending or refunding any Lien
permitted by clause (v) above, PROVIDED that the
principal amount secured is not increased and the
Lien is not extended to other property;
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(vii) Liens to secure up to $10,000,000 of letters of
credit obligations of the Company to the extent
permitted by Section 6.9(a);
(viii) any common law right of set off or banker's lien
arising in the ordinary course of business in
connection with deposit arrangements maintained by
the Company and its Subsidiaries with its banks or
other financial institution, other than a Lender in
connection with this Agreement (which such rights
have been waived pursuant to Section 9.3 hereof);
and
(ix) Liens on assets covered by financing arrangements,
including lease financing arrangements which would be
characterized as capitalized leases in accordance
with generally accepted accounting principles, if the
indebtedness for all such agreements does not in the
aggregate exceed fifteen percent (15%) of
Consolidated Tangible Net Worth.
6.9 DEBT. (a) The Companies agree that they will not and will not
permit any Subsidiary to create, incur or guarantee any Debt, unless on the
first day after the creating, incurrence or guaranteeing of any such Debt,
Consolidated Debt does not exceed 60% of Consolidated Tangible Net Worth;
PROVIDED, however, the foregoing shall not restrict the incurrence of Debt by
any of the Companies to any Subsidiary or by any Subsidiary to any of the
Companies or to any other Subsidiary that arises in the ordinary course of the
business of such Subsidiary.
(b) The Companies agree that they will not and will not permit any
Subsidiary to permit any Debt to exist, if at any time Consolidated Debt exceeds
85% of Consolidated Tangible Net Worth; PROVIDED, however, the foregoing shall
not restrict the incurrence of Debt by any of the Companies to any Subsidiary or
by any Subsidiary to any of the Companies or to any other Subsidiary that arises
in the ordinary course of the business of such Subsidiary.
6.10 INVESTMENTS. The Companies agree that they will not and will not
permit any Subsidiary to make any investment in, or any loan or advance to, or
own, purchase or acquire (other than as allowed in Section 6.12) any stock or
securities of, any Person (all of the foregoing being herein called "Restricted
Investments"), except that:
(i) the Company or any of its Subsidiaries may own,
purchase or acquire (A) direct obligations of the
United States of America or any of its agencies or
obligations guaranteed by the United States of
- 23 -
America or any of its agencies and having maturities
not in excess of one year from the date of purchase
or acquisition, (B) prime commercial paper rated A1
or P1 and having maturities not in excess of one year
from the date of purchase or acquisition, (C)
certificates of deposit issued by any banks with a
net worth of at least $100,000,000 and a rating by
either Xxxxx'x Investor Services, Inc. or Standard &
Poors of at least A or better and having maturities
not in excess of one year from the date of purchase
or acquisition; PROVIDED, however, that in the case
of any Lender or Lenders whose rating is less than A,
the maximum amount of the certificates of deposit
issued by such Lender or Lenders shall not exceed
$3,000,000 individually or $12,000,000 in the
aggregate;
(ii) any Canadian Subsidiary may own, purchase or acquire
direct obligations of the Canadian Government having
maturities not in excess of one year from the date of
purchase or acquisition;
(iii) the Company or any of its Subsidiaries may (A) make
or permit to remain outstanding loans or advances
to the Company or any Subsidiary, (B) own, purchase
or acquire stock or securities of a Subsidiary or
of a corporation which immediately after such
purchase or acquisition will be a Subsidiary, or
(C) acquire and own stock or securities received in
a settlement of debts created in the ordinary
course of business and owed to the Company or any
Subsidiary;
(iv) any Foreign Subsidiary may own, purchase or acquire
certificates of deposit having maturities not in
excess of one year from the date of purchase or
acquisition and issued by foreign banks or by the
foreign branches of United States banks if each
such foreign bank or foreign branch has a net worth
of at least $100,000,000 and a rating by either
Xxxxx'x Investor Services, Inc. or Standard & Poors
of at least A or better; and
(v) the Company or any Subsidiary may make loans or
advances to or own, purchase or acquire stock or
securities or an interest in any joint venture
entity; PROVIDED, HOWEVER, that the aggregate amount
of all such loans, advances and investments in joint
venture entities at any time outstanding shall not
exceed $100,000,000.
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The foregoing restrictions on investments by the Companies shall not apply to
funds maintained in rabbi trusts established by the Companies for supplemental
executive retirement plans and early retirement incentive programs.
6.11 DISPOSITIONS OF STOCK AND DEBT. The Companies agree that they will
not and will not permit any Subsidiary to sell or otherwise dispose of any
shares of stock or Debt of any Subsidiary, except (i) to the Company or another
Subsidiary, (ii) a sale of shares of a Subsidiary in connection with the
creation of a joint venture (subject to the limitations on investments set forth
in Subsections 6.10(v) and (iii) except that all shares of stock and Debt of any
Subsidiary at the time owned by or owed to the Company or any of its
Subsidiaries may be sold as an entirety for a cash consideration which
represents the fair value (as determined in good faith by the Board of Directors
of the Company) at the time of sale of the shares and Debt so sold; PROVIDED
that the assets of such Subsidiary do not constitute a substantial part of the
consolidated assets of the Company and its Subsidiaries; and PROVIDED further
that, at the time of such sale, such Subsidiary shall not own, directly or
indirectly, any Debt of the Company or any shares of stock or Debt of any other
Subsidiary (unless all of the shares of stock and Debt of such other Subsidiary
owned, directly or indirectly by the Company and all Subsidiaries are
simultaneously being sold as permitted by this Section 6.11 hereof; PROVIDED,
further, that the Company may sell 70% of the stock of Tidewater (Malaysia)
Sdn.Bhd. to citizens of Malaysia; PROVIDED, however, that the transactions
described on SCHEDULE 4 are also expressly permitted hereunder.
6.12 MERGERS AND CONSOLIDATIONS. The Companies agree that they will not
and will not permit any Subsidiary to merge or consolidate with any other
corporation or sell, lease or transfer or otherwise dispose of all or a
substantial part of its assets to any Person, except that provided no Default
has occurred and is continuing and further provided that no Default will occur
as a result thereof:
(i) any Subsidiary may merge or consolidate with the
Company (provided that the Company shall be the
continuing or surviving corporation) or with any
one or more other Subsidiaries;
(ii) any Subsidiary may sell, lease, transfer or
otherwise dispose of any of its assets to the
Company or another Subsidiary;
(iii) any Subsidiary may sell or otherwise dispose of all
or substantially all of its assets subject to the
- 25 -
conditions specified in Section 6.11 with respect
to a sale of the stock of such Subsidiary;
(iv) the Company may merge or consolidate with any
corporation provided that the Company shall be the
continuing or surviving corporation; and
(v) any Subsidiary may merge or consolidate with any
corporation provided such continuing or surviving
corporation shall remain or become a Subsidiary of
the Company.
6.13 FIXED CHARGE RATIO. The Companies agree that they will not and
will not permit any Subsidiary to at any time permit EBITDA for the immediately
preceding four consecutive fiscal quarters LESS the tax expense for taxes
actually paid during such period, to be less than 220% of Projected Fixed
Charges.
6.14 MINIMUM TANGIBLE NET WORTH. The Companies agree that they will not
and will not permit any Subsidiary to permit at any time Consolidated Tangible
Net Worth to be less than $400,000,000, PLUS 50% of cumulative positive
Consolidated Net Income after September 30, 1995, PLUS 100% of cumulative Net
Equity Proceeds
after September 30, 1995.
6.15 TRANSACTIONS WITH RELATED PARTY. The Companies agree that they
will not and will not permit any Subsidiary to effect any transaction with any
Affiliate or Subsidiary by which any asset or services of a Company or a
Subsidiary is transferred to such Affiliate or Subsidiary, or from such
Affiliate or Subsidiary or enter into any other transaction with an Affiliate or
Subsidiary, on terms less favorable to such Company or such Subsidiary than
would be reasonably expected to be given in a similar transaction with an
unrelated entity. The foregoing restrictions shall not apply to transactions
between the Company and a Subsidiary or a Subsidiary and another Subsidiary.
6.16 STOCK TRANSACTIONS BY SUBSIDIARIES. The Company agrees that it
will not permit any Subsidiary to issue, sell or dispose of any shares of any
class of its stock (other than directors' qualifying shares or shares which are
effectively controlled by the Company) except to the Company or another
Subsidiary or as permitted by Section 6.11.
6.17 ERISA. The Company agrees that it will not, and will
not permit any Subsidiary to:
(i) terminate or withdraw from any Plan so as to result
in any material liability to the PBGC;
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(ii) engage in or permit any Person to engage in any
prohibited transaction (as defined in Section 4975 of the Code) involving any
Plan (other than a Multiemployer Plan) which would subject the Company or any
Subsidiary to any material tax, penalty or other Liability;
(iii) incur or suffer to exist any material accumulated
funding deficiency (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived, involving any Plan (other than a Multiemployer
Plan); or
(iv) allow or suffer to exist any risk or condition, which
presents a material risk of incurring a material liability to the PBGC.
6.18 FEDERAL RESERVE REGULATIONS, ETC. The Company agrees that it will
not, and will not permit any Subsidiary or any agent acting on behalf of the
Company or any Subsidiary, to take any action which might cause this Agreement
or the Notes to violate Regulation U or any other regulation of the Board of
Governors of the Federal Reserve System or to violate the Securities Exchange
Act of 1934, as amended, in each case as in effect now or as the same may
hereafter be in effect.
6.19 ENVIRONMENTAL MATTERS. Each of the Companies agrees that it will
not, and will not permit any Third Party to, use, produce, manufacture, process,
generate, store, dispose of, manage at, or ship or transport to or from the
Properties any Hazardous Materials except for Hazardous Materials used,
produced, manufactured, processed, generated, stored, disposed of, released or
managed in the ordinary course of business in compliance with all applicable
Environmental Requirements and except for Hazardous Materials released in
amounts which do not require remediation pursuant to applicable law or
regulation, and which do not present any danger to health, safety or the
environment, or unless any liability resulting from such remediation is not
likely to materially adversely affect the business, operations or financial
condition of the Company and its Subsidiaries, taken as a whole.
6.20 TAXES. The Company agrees that it will pay when due, and cause
each of its Subsidiaries to pay when due, all taxes, assessments, and other
liabilities, other than for borrowed money, except and so long as contested in
good faith.
Section 7. CONDITIONS PRECEDENT TO ADVANCES. The obligation
of the Lenders to make any Advance under the Credit Facility is
subject to the satisfaction of each of the following conditions
precedent:
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7.1 DEFAULT. Before and after giving effect to such Advance
under the Credit Facility, no Default shall have occurred and be
continuing.
7.2 REPRESENTATIONS AND WARRANTIES. Before and after giving effect to
such Advance under the Credit Facility, the representations and warranties in
Section 5 hereof shall be true and correct as though made on the date of such
Advance under the Credit Facility, except for such changes as are specifically
permitted hereunder.
Section 8. CONDITIONS PRECEDENT TO THE CREDIT. In addition to the
applicable conditions precedent set forth in Section 7 above, the obligation of
the Lenders to extend credit to the Companies under this Agreement is subject to
the receipt by the Administrative Agent of the following by the date of this
Agreement:
8.1 RESOLUTIONS OF THE COMPANIES. Copies, duly certified by the
secretary or assistant secretary of each of the Companies, of (a) the
resolutions of the Board of Directors of each of the Companies authorizing the
borrowings hereunder and the execution and delivery of this Agreement and the
Line of Credit Notes, (b) all documents evidencing other necessary corporate
action, and (c) all approvals, or consents, if any, with respect to this
Agreement and the Line of Credit Notes.
8.2 ORGANIZATION DOCUMENTS; GOOD STANDING. Copies of (a) the
certificate of incorporation of the Company (certified as of a recent date by
the Secretary of State of Delaware), (b) the by-laws of the Company, certified
by the secretary or assistant secretary of the Company, (c) the certificate of
incorporation and by-laws of each Identified Subsidiary, certified by the
secretary or assistant secretary of such Identified Subsidiary, in each case as
in effect on the date of closing, (d) certificates of good standing for the
Company and each of the Identified Subsidiaries, issued by the Secretary of
State of their respective states of incorporation, (e) certificate of
qualification to do business of the Company issued by the Secretary of State of
the State of Louisiana.
8.3 INCUMBENCY. Certificates of the secretary or assistant secretary of
each of the Companies, certifying the name of the officers of each of the
Companies, respectively, authorized to execute this Agreement, the Line of
Credit Notes, and all other documents or certificates to be delivered hereunder,
together with the true signatures of such officers.
8.4 OFFICER'S CERTIFICATE. A certificate of the president or
chief financial officer of the Company certifying that immediately
- 28 -
after the execution of this Agreement (a) no Event of Default shall have
occurred, (b) the representations and warranties in Section 5 hereof shall be
true and correct, (c) neither the Company nor any of its Subsidiaries shall have
outstanding any Current Debt or any Funded Debt except as described in Section
5.6 hereof, and (d) no material adverse change in the financial condition,
business, operations or prospects of the Company or its Subsidiaries has
occurred since September 30, 1995.
8.5 NOTES. The duly executed Line of Credit Notes of the
Companies payable to the respective Lenders.
8.6 OPINION. The opinion of Jones, Walker, Waechter, Poitevent, Carrere
& Xxxxxxx, L.L.P., special counsel to the Company, addressed to the Lenders, to
the effect that (a) each of the Company and the Identified Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and is duly qualified and in good
standing as a foreign corporation in all jurisdictions wherein the property it
owns or the business it transacts makes such qualification necessary, except
where the failure to so qualify would not impair the ability of Company or any
of the Identified Subsidiaries to operate its business or own its assets; (b)
each of the Companies has full power to execute, deliver and perform its
obligations under this Agreement and the Line of Credit Notes; (c) such actions
have been duly authorized by all necessary corporate action, and are not in
conflict with any provision of law or of the charter or by-laws of any of the
Companies, nor in conflict with any agreement binding upon the Company or any of
the Identified Subsidiaries; (d) this Agreement and the Line of Credit Notes are
the legal and binding obligations of the Companies, enforceable in accordance
with their respective terms, except as enforcement may be limited by applicable
bankruptcy, reorganization, moratorium or similar laws; and (e) no consent or
approval of the shareholders of the Company or of any governmental authority is
required as a condition to the validity or enforceability of this Agreement or
the Notes.
Section 9. EVENTS OF DEFAULT; REMEDIES; SET OFFS.
9.1 EVENTS OF DEFAULT. Any one of the following events shall constitute
Events of Default hereunder and under the Credit Facility, the Line of Credit
Notes and the Term Notes, individually and collectively:
(a) The Companies default in the payment of any principal on any Note
when the same shall become due, either by the terms thereof or otherwise as
herein provided.
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(b) The Companies default in the payment of any interest on any Note or
any other amount due hereunder for more than 10 days after the date due.
(c) The Company or any Subsidiary defaults in any payment of principal
or of interest on any other obligation for borrowed money (including, but not
limited to, any Capitalized Lease Obligation, any obligation under a conditional
sale or other title retention agreement, any obligation issued or assumed as
full or partial payment for property whether or not secured by a purchase money
mortgage or any obligation under notes payable or drafts accepted representing
extensions of credit) beyond any period of grace provided with respect thereto,
or in the performance or observance of any other agreement, term or condition
contained in any agreement under which any such obligation is created if the
effect of such default is to cause, or permit the holder or holders of such
obligation (or a trustee on behalf of such holder or holders) to cause, such
obligation to become due (or to be defeased or repurchased by the Company or any
Subsidiary) prior to its stated maturity, PROVIDED that the aggregate amount of
all obligations as to which such payment default shall occur and be continuing
or such failure (or defeasance or resale) or other event causing or permitting
acceleration shall occur and be continuing exceeds $1,000,000, individually or
in the aggregate.
(d) Any representation or warranty made by the Companies herein or in
any writing furnished in connection with or pursuant to this Agreement shall be
false in any material respect on the date as of which made.
(e) The Companies default in the performance or observance of any
agreement or covenant contained in Sections 6.8 through 6.20 of this Agreement.
(f) The Companies default in the performance or observance of any other
agreement, covenant, term or condition contained herein and such default shall
not have been remedied within 30 days after the earlier to occur of (i) the date
on which the President, the Treasurer or the Chief Financial Officer of the
Company obtains actual knowledge thereof or (ii) the date on which written
notice thereof shall have been received by the Company from the Administrative
Agent.
(g) The Company or any Subsidiary makes an assignment for the
benefit of creditors or is generally not paying its debts as such
debts become due.
(h) Any decree or order for relief in respect of the Company
or any Subsidiary is entered under any bankruptcy, reorganization,
compromise, arrangement, insolvency, readjustment of debt,
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dissolution or liquidation or similar law, whether now or hereinafter in effect
(herein called "Bankruptcy Law"), of any jurisdiction.
(i) The Company or any Subsidiary petitions or applies to any tribunal
for, or consents to the appointment of, or taking possession by, a trustee,
receiver, custodian, liquidator or similar official, of the Company or any
Subsidiary, or of any substantial part of the assets of the Company or any
Subsidiary, or commences a voluntary case under the Bankruptcy Law of the United
States or any proceedings (other than proceedings for the voluntary liquidation
and dissolution of a Subsidiary) relating to the Company or any Subsidiary under
the Bankruptcy Law of any other jurisdiction.
(j) Any such petition or application (described in Section 9.1(i) is
filed, or any such proceedings are commenced, against the Company or any
Subsidiary, and the Company or such Subsidiary by any act indicates its approval
thereof, consent thereto, or acquiescence therein, or an order, judgment or
decree is entered appointing any such trustee, receiver, custodian, liquidator
or similar official, or approving the petition in any such proceedings, and such
order, judgment or decree remains unstayed and in effect for more than 60 days.
(k) Any order, judgment or decree is entered in any proceedings against
the Company decreeing the dissolution of the Company and such order remains in
effect for more than 60 days.
(l) Any order, judgment or decree is entered in any proceedings against
the Company or any Subsidiary, as the case may be, decreeing a split-up of the
Company or such Subsidiary which requires the divestiture of assets representing
a substantial part, or the divestiture of the stock of a Subsidiary whose assets
represent a substantial part, of the assets of the Company and its Subsidiaries
or which requires the divestiture of assets, or stock of a Subsidiary, which
shall have contributed a substantial part of the Consolidated Net Income of the
Company and its Subsidiaries for any of the three (3) fiscal years then most
recently ended, and such order, judgment or decree remains unstayed and in
effect for more than 60 days.
(m) A final judgment in an amount in excess of $1,000,000 is rendered
against the Company or any Subsidiary and, within 60 days after entry thereof,
such judgment is not discharged or execution thereof stayed pending appeal, or
within 60 days after the expiration of any such stay, such judgment is not
discharged.
9.2 REMEDIES. (a) If any Event of Default specified in
Sub-Sections 9.1(h), 9.1(i) or 9.1(j) occurs, the Credit Facility
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(if then outstanding) shall automatically be deemed terminated and the
outstanding Notes shall automatically become immediately due and payable, and
the Credit (if then outstanding) shall immediately terminate, all without
presentment, demand, protest or notice of any kind, all of which are hereby
waived by the Companies.
(b) If an Event of Default shall occur under any other sub-section of
Section 9.1, the Required Lenders may, at their option, and in addition to any
right, power or remedy provided by law or equity, by notice in writing to the
Company, declare the Credit Facility (if then outstanding) to be terminated,
and/or the outstanding Notes to be immediately due and payable, whereupon the
Credit (if then outstanding) shall immediately terminate, and/or the Notes shall
become immediately due and payable, as the case may be, without presentment,
demand, protest or notice of any kind, all of which are hereby waived by the
Companies.
(c) In addition to the remedies specified above, if any Default occurs
under Section 9.1 (which with notice, the passage of time and/or the happening
of any further condition or act would constitute an Event of Default) and is
continuing uncured, the Lenders shall have no obligation to make additional
advances under the Credit Facility or the Line of Credit Notes unless and until
such Default is cured prior to the occurrence of an Event of Default.
(d) In addition to the remedies specified above, if any Event of
Default shall occur, the Administrative Agent (with the direction of the
Required Lenders) may proceed to protect and enforce the Lenders' rights under
this Agreement and the outstanding Notes by exercising such remedies as are
available to the Administrative Agent or the Lenders in respect thereof under
applicable law (except to the extent waived by Section 9.3 hereof), either by
suit in equity or by action at law, or both, whether for specific performance of
any covenant or other agreement contained in this Agreement or in aid for the
exercise of any power granted in this Agreement. No remedy conferred in this
Agreement upon the Administrative Agent or the Lenders is intended to be
exclusive of any other remedy, and each and every such remedy shall be
cumulative and shall be in addition to every other remedy conferred herein or
now or hereafter existing at law or in equity or by statute or otherwise, except
to the extent waived by Section 9.3 hereof.
9.3 WAIVER OF SET-OFFS. The Administrative Agent, each Agent and each
Lender hereby specifically waive (i) the right to set-off any funds of any of
the Companies in possession of the Administrative Agent, each Agent or any
Lender against the obligation of the Companies to the Administrative Agent, each
Agent or any Lender pursuant to this Agreement, or (ii) any counterclaim
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against, security interest in or banker's or other lien on, any of such funds or
accounts of the Companies.
Section 10. THE AGENTS.
10.1 APPOINTMENT AND AUTHORIZATION. Each Lender appoints and authorizes
the Administrative Agent to receive all payments of principal, interest, fees
and other amounts payable by the Companies under this Agreement and to remit
same immediately to the Lenders, to disburse the Advances from the Lenders, and
to take such action and to exercise such powers under this Agreement and the
Notes as are delegated to the Administrative Agent by the Lenders from time to
time. Any requests by the Company for consent by the Lenders or waiver or
amendment of provisions of the Agreement shall be delivered by the Company to
the Administrative Agent, but favorable action on such requests shall require
the approval of the Required Lenders. The Administrative Agent shall promptly
distribute to the Lenders upon receipt all payments and prepayments of
principal, interest, fees and other amounts paid by the Companies under this
Agreement (except for the Agents' fee described in Section 3.6(c) hereof), in
proportion to the Lenders' Commitments. Similarly, the Lenders shall be
obligated to fund Advances in proportion to their Commitments. The
Administrative Agent may resign at any time by written notice to the Lenders;
the successor Administrative Agent shall be selected by the Required Lenders
from between the remaining Agents.
10.2 AGENTS' RELIANCE. Neither the Agents nor any of their directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by it or them under or in connection with this Agreement and the Notes,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agents: (i) may treat the
payee of any of the Notes as the holder thereof until the Administrative Agent
receives written notice of the assignment or transfer thereof, signed by such
payee and in form satisfactory to the Administrative Agent; (ii) may consult
with legal counsel (including counsel for the Company), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations made in or in connection with this
Agreement and the Notes; (iv) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of this Agreement and the Notes or to inspect any property (including the books
and records) of the Companies; (v) shall not be responsible to any Lender for
the due execution,
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legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement and the Notes or any other instrument or document furnished pursuant
thereto; and (vi) shall incur no liability under or in respect to this Agreement
and the Notes by acting upon any notice, consent, certificate or other
instrument or writing (which may be by facsimile, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
10.3 ACTS BY ADMINISTRATIVE AGENT AFTER DEFAULT, ETC. In the event that
the Administrative Agent shall have been notified in writing by any of the
Companies or the Lenders of any Event of Default (or in the event that the
officer of the Administrative Agent responsible for the Borrower's account
obtains actual knowledge of an Event of Default), the Administrative Agent (a)
shall immediately notify the Lenders; (b) shall take such action and assert such
rights under this Agreement as it is expressly required to do pursuant to the
terms of this Agreement with the consent of the Required Lenders; (c) may take
such other actions and assert such other rights as it deems advisable, in its
discretion, for the protection of the interests of the Lenders pursuant to
applicable laws with the consent of the Required Lenders; and (d) shall inform
all the Lenders of the taking of action or assertion of rights pursuant to this
Section. Each Lender agrees with the Administrative Agent and the other Lenders
that the decisions and determinations of the Required Lenders in enforcing this
Agreement and the Notes and guiding the Administrative Agent in those matters
shall be binding upon all the Lenders, including, without limitation,
authorizing the Administrative Agent at the pro rata expense of all the Lenders
(to the extent not reimbursed by the Companies) to retain attorneys to seek
judgment on this Agreement and the Notes. Each Lender agrees with the other
Lenders that it will not, without the consent of the other Lenders, separately
seek to institute any legal action with respect to the Loan; PROVIDED that
following the maturity of the Notes (whether by acceleration or at stated
maturity), each Lender may, without the concurrence of the other Lenders,
separately seek to institute any legal action with respect to the Loan.
10.4 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Agents or any other Lender and based
on the financial statements referred to in Section 5.4 hereof and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the Notes.
- 34 -
10.5 AGENTS. Agents shall have the same rights and powers under this
Agreement and the Notes as any other Lender and may exercise the same as though
it were not the Agents; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include Agents in its individual capacity. Agents
may accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with the Company as if Agents were not
the Agents and without any duty to account therefor to the Lenders.
10.6 ASSIGNMENTS AND PARTICIPATIONS. (a) No Lender may assign to any
other Person any portion of its interests, rights and obligations under this
Agreement (including, without limitation, any portion of its Commitment or the
Loan at the time owing to it and Note held by it) unless each of the following
conditions is or has been satisfied: (i) the Administrative Agent has given its
prior written consent (which consent will not be unreasonably withheld), (ii)
the Company has given its prior written consent, (iii) each such assignment is
of a constant, and not a varying, percentage of all the assigning Lender's
rights and obligations under this Agreement, (iv) the parties to such assignment
have executed and delivered to the Administrative Agent an Assignment and
Acceptance, substantially in the form of EXHIBIT "D" hereto (the "Assignment and
Acceptance"), together with any Note subject to such assignment, and together
with payment by the assignee to the Administrative Agent for its own account of
an assignment administration fee in the amount of $750, (v) the Administrative
Agent shall have delivered to the Company a fully executed copy of such
Assignment and Acceptance, and (vi) the assignee is (A) a state or national
commercial bank located in the United States or (B) a United States branch or
agency of a foreign commercial branch, PROVIDED that the assignment to such
branch or agency will not cause the Companies to be liable for any additional
costs or subject the Companies to any foreign taxation or bank regulation. Upon
satisfaction of each of the foregoing conditions and upon acceptance and
notation by the Administrative Agent, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be at
least five (5) Business Days after the execution thereof, (x) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender, and (y)
the assigning Lender shall, to the extent provided in such assignment, be
released from its obligations under this Agreement. Notwithstanding the
foregoing, the restrictions contained above in this Section 10.6(a) shall not
apply to assignments to any Federal Reserve Bank, and the conditions set forth
in clauses (i) and (ii) above shall not apply to assignments by any Lender to
any Person which controls, is controlled by, or is under common control with, or
is otherwise substantially affiliated with that Lender.
- 35 -
(b) Upon its receipt of an Assignment and Acceptance executed by the
parties to such assignment together with any Note or Notes subject to such
assignment and the written consent of the Administrative Agent and the Company
to such assignment, the Administrative Agent shall give prompt notice thereof to
the Company and the Lenders. Within five (5) Business Days after receipt of such
notice, the Companies at their own expense, shall execute and deliver to the
Administrative Agent, in exchange for the surrendered Note, a new Note or Notes
to the order of such assignee(s) in an amount equal to the amount assumed by
such assignee(s) pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained some portion of its obligations hereunder, a new
Note or Notes to the order of the assigning Lender in an amount equal to the
amount retained by it hereunder. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of the surrendered
Note, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in the form of the assigned Note. The surrendered Note shall
be cancelled and returned to the Company.
(c) Each Lender, without the consent of the Company or the Agents, may
sell participations to one or more banks in all or a portion of its Loans
(including its Commitment) under this Agreement, PROVIDED that the selling
Lender shall retain the sole right and responsibility to enforce the obligations
of the Companies relating to such Loans and that the only rights granted to the
participant pursuant to such participation arrangements with respect to waivers,
amendments or modifications of this Agreement shall be the right to approve
waivers, amendments, or modifications which require the consent of all of the
Lenders as provided in Section 11.11 hereof.
Section 11. GENERAL.
11.1 DEFINITIONS. As used in this Agreement, terms used herein with
initial capital letters shall have the following meanings, unless defined
elsewhere in this Agreement or unless the context clearly indicates otherwise:
"Affiliate" shall mean, as to any Person, any Subsidiary of such Person
and any other Person which, directly or indirectly, controls, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" shall mean the possession of the power to direct or cause the
direction of management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise, and an Affiliate of
any of the Companies includes, without limitation, any officer or director of
such corporation and any Person who
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beneficially owns, directly or indirectly, 10% or more of the issued outstanding
capital stock of such corporation.
"Administrative Agent" shall mean First National Bank of Commerce, or
its successor selected pursuant to Section 10.1 hereof.
"Agents" shall mean First National Bank of Commerce, The First
National Bank of Boston and Texas Commerce Bank National
Association.
"Agreement" shall mean this Amended and Restated Revolving Credit and
Term Loan Agreement, as it may be amended and restated, modified and/or
supplemented from time to time.
"Applicable Facility Fee Rate" shall mean the following per annum
facility fee interest rate applicable to the Available Credit from time to time
depending on the Credit Rating of the Company:
CREDIT RATING APPLICABLE FACILITY FEE RATE
Level I 0.250%
Level II 0.250%
Level III 0.375%
Level IV 0.375%
"Applicable LIBO Rate Margin" shall mean the following per annum
interest rate applicable to LIBO Rate Advances from time to time depending on
the Credit Rating of the Company:
CREDIT RATING APPLICABLE LIBO RATE MARGIN
Level I 0.500%
Level II 0.625%
Level III 0.875%
Level IV 1.125%
"Assignment and Acceptance" shall have the meaning specified
in Section 10.6 hereof.
"Available Credit" shall have the meaning specified in Section
1.1 hereof.
"Bankruptcy Law" shall have the meaning specified in Section
9.1(h) hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
day on which commercial banks in Xxx Xxxxxxx, Xxxxxxxxx (xx Xxxxxx, Xxxxxxx in
the case of LIBO Rate Advances or payments) are required or authorized to be
closed.
- 37 -
"Canadian Subsidiary" shall mean any Subsidiary organized under the
laws of Canada or any province thereof.
"Capital Asset" shall mean any asset other than a current asset (as
determined in accordance with generally accepted accounting principles).
"Capitalized Lease Obligation" shall mean any rental obligation which,
under generally accepted accounting principles, is or will be required to be
capitalized on the books of the Company or any Subsidiary, taken at the amount
thereof accounted for as indebtedness (net of interest expense) in accordance
with such principles.
"CERCLA" shall mean the Comprehensive Environmental Response
Compensation and Liability Act, as amended.
"CERCLIS" shall mean the Comprehensive Environmental Response
Compensation and Liability Inventory System established pursuant to CERCLA.
"Code" shall have the meaning specified in Section 5.10.
"Commitments" shall have the meaning specified in Section 1
hereof.
"Company" shall mean Tidewater Inc.
"Companies" shall mean the Company and the Domestic
Subsidiaries.
"Consolidated Debt" shall mean Funded Debt and Current Debt of the
Company and its Subsidiaries which is consolidated in accordance with generally
accepted accounting principles.
"Consolidated Net Income" shall mean, for any period, the consolidated
net income of the Company and its Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting principles.
"Consolidated Tangible Net Worth" shall mean, at a particular date, all
amounts which, in conformity with generally accepted accounting principles,
would be included under shareholders' equity on a consolidated balance sheet of
the Company and its consolidated Subsidiaries; PROVIDED, however, such amounts
shall be net of amounts carried on the books of the Company and its consolidated
Subsidiaries for all intangibles (including goodwill, trademarks, patents, brand
names, unamortized debt discount and expense (net of premium) solely with
respect to Debt issued after May 1, 1987, organization or developmental expenses
and amounts on the asset
- 38 -
side of such balance sheet for capital stock of such corporation), as determined
in accordance with generally accepted accounting principles; and PROVIDED
FURTHER, goodwill of up to $25,000,000 arising in connection with the
acquisition of the gas compression division of Halliburton Company shall be
treated as if it were part of Consolidated Tangible Net Worth.
"Credit" shall mean the commitment of Lenders to extend the Line of
Credit to the Companies pursuant to this Agreement.
"Credit Facility" shall have the meaning specified in Section
1.1 hereof.
"Advances" shall have the meaning specified in Section 1.1
hereof.
"Credit Rating" shall mean the following indicative long-term rating of
the Company's senior debt by Xxxxx'x Investor Services, Inc. and the investment
grade indicative senior credit rating of the Company's senior debt by Standard &
Poor's from time to time:
LEVEL XXXXX'X CREDIT RATING S & P'S CREDIT RATING
Level I Baa1 or higher BBB+ or higher
Level II Baa2 or Baa3 BBB or BBB-
Level III Ba1 BB+
Level IV Below Ba1 Below BB+
Where the Credit Rating from one rating service is at one level (e.g., Level I)
and the Credit Rating for the other rating service is at another level (e.g.,
Level II), the lower of the two levels (Level II) shall be the applicable Credit
Rating level.
"Current Debt" shall mean any obligation for borrowed money (and any
notes payable and drafts accepted representing extensions of credit whether or
not representing obligations for borrowed money) payable on demand or within a
period of one year from the date of the creation thereof; provided that any
obligation shall be treated as Funded Debt regardless of its term, if such
obligation is renewable pursuant to the terms thereof or of a revolving credit
or similar agreement effective for more than one year after the date of the
creation of such obligation, or may be payable out of the proceeds of a similar
obligation pursuant to the terms of such obligation or of any such agreement.
Any obligation secured by a Lien on, or payable out of the proceeds of
production from, property of the Company or any Subsidiary shall be deemed to be
Funded Debt of the Company or such Subsidiary even though such obligation shall
not be assumed by the Company or such Subsidiary.
"Debt" shall mean Funded Debt and/or Current Debt, as the case
may be.
- 39 -
"Default" shall have the meaning specified in the definition
of Event of Default hereinafter.
"Domestic Subsidiary" shall mean any Subsidiary organized under the
laws of any State of the United States.
"EBITDA" shall mean Consolidated Net Income of the Company, PLUS (i)
interest expense, (ii) tax expense and (iii) depreciation and amortization
expense, to the extent that any of such items are deducted from consolidated
gross revenues of the Company for the purpose of determining Consolidated Net
Income.
"Environmental Authority" shall mean any foreign, federal, state, local
or regional government that exercises any form of jurisdiction or authority
under any Environmental Requirement.
"Environmental Judgments and Orders" shall mean all judgments, decrees
or orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated in a judgment,
decree or order.
"Environmental Liabilities" shall mean any liabilities, whether accrued
or contingent, arising from or relating in any way to any Environmental
Requirements.
"Environmental Notices" shall mean any written communication from any
Environmental Authority stating possible or alleged noncompliance with or
possible or alleged liability under any Environmental Requirement, including
without limitation any complaints, citations, demands or requests from any
Environmental Authority for correction of any purported violation of any
Environmental Requirements or any investigation concerning any purported
violation of any Environmental Requirements. Environmental Notices also means
(i) any written communication from any private Person threatening litigation or
administrative proceedings against or involving any Company relating to an
alleged violation of any Environmental Requirements and (ii) any complaint,
petition or similar documents filed by any private Person commencing litigation
or administrative proceedings against or involving any Company relating to
alleged violation of any Environmental Requirements.
"Environmental Proceedings" shall mean any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
- 40 -
"Environmental Releases" shall mean releases (as defined in CERCLA or
under any applicable state or local environmental law or regulation) of
Hazardous Materials. Environmental Releases do not include releases for which no
remediation or reporting is required by applicable Environmental Requirements
and which do not present a danger to health, safety or the environment.
"Environmental Requirements" shall mean any applicable local, state or
federal law, rule, regulation, permit, order, decision, determination or
requirement relating in any way to Hazardous Materials or to the protection of
human health or the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" shall mean any of the events specified in Section 9,
PROVIDED that there has been satisfied any requirements in connection with such
event for the giving of notice, or the lapse of time, or the happening of any
further condition, event or act, and "Default" shall mean any of such events,
whether or not any such requirement has been satisfied.
"Foreign Subsidiary" shall mean any Subsidiary other than a
Domestic Subsidiary.
"Funded Debt" shall mean and include without duplication,
(a) any obligation payable more than one year from the
date of creation thereof, which under generally
accepted accounting principles is shown on the
balance sheet as a liability (including, without
limitation, Capitalized Lease Obligations and
excluding reserves for deferred income taxes and
for foreign employee service indemnities and other
reserves to the extent that such reserves do not
constitute an obligation),
(b) Current Debt which is not repaid in full, and kept repaid, for
a period of at least 60 consecutive days during each fiscal
year of the debtor thereof,
(c) amounts equal to the aggregate net rentals (after
making allowance for any interest, taxes or other
expenses included therein), payable more than one
year from the date of the creation thereof under
any lease (whether or not such rentals accrue and
become payable only on an annual or other periodic
basis) which lease (i) constitutes the substantial
equivalent of a purchase of the property subject to
such lease, (ii) has an initial term materially
- 41 -
less than the useful life of such property and provides that
the lessee has the option to renew such lease for the
remaining useful life of such property at a rental which at
the inception of such lease appears to be substantially less
than the fair rental value of such property, or (iii) provides
an option to the lessee to acquire the property subject to
such lease at a price which, at the inception of such lease,
appears to be substantially less than the probable fair value
of such property at the time or times of permitted acquisition
by the lessee,
(d) indebtedness secured by any Lien existing on property owned
subject to such Lien, whether or not the indebtedness secured
thereby shall have been assumed,
(e) guarantees, endorsements (other than endorsements of
negotiable instruments for collection in the ordinary course
of business) and other contingent liabilities (whether direct
or indirect) in connection with the obligations, stock or
dividends of any Person,
(f) obligations under any contract providing for the making of
loans, advances or capital contributions to any Person, or for
the purchase of any property from any Person, in each case in
order to enable such Person primarily to maintain working
capital, net worth or any other balance sheet condition or to
pay debts, dividends or expenses,
(g) obligations under any contract for the purchase of materials,
supplies or other property if such contract (or any related
document) requires that payment for such materials, supplies
or other property shall be made regardless of whether or not
delivery of such materials, supplies or other property is ever
made or tendered,
(h) obligations under any contract to rent or lease (as
lessee) any real or personal property if such
contract (or any related document) provides that
the obligation to make payments thereunder is
absolute and unconditional under conditions not
customarily found in commercial leases then in
general use or requires that the lessee purchase or
otherwise acquire securities or obligations of the
lessor,
- 42 -
(i) obligations under any contract for the sale or use
of materials, supplies or other property if such
contract (or any related document) requires that
payment for such materials, supplies or other
property, or the use thereof, shall be subordinated
to any indebtedness (of the purchaser or user of
such materials, supplies or other property) owed or
to be owed to any Person, and
(j) obligations under any other contract which, in
economic effect, is substantially equivalent to a
guarantee;
all as determined in accordance with generally accepted accounting
principles.
"Hazardous Materials" includes, without limitation (a) hazardous waste
as defined in the Resource Conservation and Recovery Act of 1976, or in any
applicable state or local law or regulation, (b) hazardous substances, as
defined in CERCLA, or in any applicable state or local law or regulation, (c)
gasoline, or any other petroleum product or by-product, (d) toxic substances, as
defined in the Toxic Substances Control Act of 1976, or in any applicable state
or local law or regulation or (e) insecticides, fungicides, or rodenticides, as
defined in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or
in any applicable state or local law or regulation, as each such Act, statute or
regulation may be amended from time to time.
"Identified Subsidiaries" shall mean each of Tidewater Marine,
Inc., Tidewater Compression Service, Inc.; Tidewater Marine Alaska,
Inc.; and Xxxxxx Gulf Marine Corporation.
"Lease Rental Expenses" shall mean lease rentals payable by the Company
or any Subsidiary pursuant to any agreements to rent or lease any real or
personal property (excluding rentals or leases of data processing equipment and
sales offices, rentals treated as Funded Debt and rentals of real property which
have been subleased to others by the Company or any Subsidiary for the remaining
term of such leases at rents at least equal to those payable by the Company or
any Subsidiary).
"Lenders" shall have the meaning specified in the first
introductory paragraph hereof.
"LIBO Rate" means during any LIBO Rate Interest Period for any Tranche,
an interest rate per annum equal to the quotient (converted to a percentage) of
(i) the rate per annum as determined by the Administrative Agent at or about
9:00 o'clock A.M. (Central time) (or as soon thereafter as practicable) on the
second Business
- 43 -
Day prior to the first day of each LIBO Rate Interest Period, as being the rate
at which deposits of United States Dollars are offered to the Administrative
Agent in the London inter-bank market by the Reference Banks, at the time of
determination and in accordance with the normal practice in such market, for
delivery on the first day of such LIBO Rate Interest Period and for the number
of days comprised therein, in amounts equal (as nearly as may be) to the amount
of the Tranche as of the first day of such LIBO Rate Interest Period, divided by
(ii) 1.00 minus the LIBOR Reserve Requirement (as defined below), expressed as a
decimal, for such LIBO Rate Interest Period. "LIBOR Reserve Requirement" shall
mean for any day during a LIBO Rate Interest Period for any LIBO Rate Tranche,
that percentage which is specified by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any marginal reserve requirement)
for the Lender with respect to liabilities consisting of or including
"Eurocurrency liabilities" (as defined in Regulation D of the Board of Governors
of the Federal Reserve System) with a maturity equal to such LIBO Rate Interest
Period. In determining the percentage, the Administrative Agent may use any
reasonable averaging and attribution methods. "Reference Banks" shall mean (i)
the principal London offices of the banks shown on page 16 of the Telerate
screen (or such other page as may replace the LIBO page on that service for the
purpose of displaying London interbank offered rates of major banks), in the
case of LIBO Rate Interest Periods of 1 month, 2 months, 3 months or 6 months,
or (ii) secondary sources selected by the Agent in its sole discretion in the
case of LIBO Rate Interest Periods of 1 week or 2 weeks. "LIBO Rate Interest
Period" shall be the period between the Business Day on which the LIBO Rate plus
the Applicable LIBO Rate Margin shall begin and the day on which the LIBO Rate
plus the Applicable LIBO Rate Margin shall end. The duration of each LIBO Rate
Interest Period for a LIBO Rate Advance shall be 1 week, 2 weeks, 1 month, 2
months, 3 months or 6 months as the Company may select, subject to the
following: (i) no LIBO Rate Interest Period shall extend past the maturity date
of either the Line of Credit Notes or the Term Notes; (ii) whenever the last day
of any LIBO Rate Interest Period would otherwise occur on a day other than a
Business Day, the last day of such LIBO Rate Interest Period shall be extended
to occur on the next succeeding Business Day, except that if the next succeeding
Business Day would occur in the next following calendar month, the last day of
such LIBO Rate Interest Period shall be shortened to occur on the next preceding
Business Day; and (iii) LIBOR Rate Tranches outstanding under each Term Loan may
not at any time exceed the aggregate principal amount outstanding on such
respective Term Loan.
"LIBO Rate Advances" shall mean Advances bearing interest at the LIBO
Rate plus the Applicable LIBO Rate Margin.
- 44 -
"LIBO Rate Interest Period" shall have the meaning specified in the
definition of LIBO Rate.
"LIBO Rate Tranche" shall mean any part of the principal amount of the
Loans that constitutes LIBO Rate Advances for a specific LIBO Rate Interest
Period.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing of any
financing statement under the Uniform Commercial Code of any jurisdiction) or
any other type of preferential arrangement for the purpose of, or having the
effect of protecting a creditor against loss or securing the payment or
preference of any obligation. "Liens" shall not include unsecured guarantees.
"Line of Credit" shall have the meaning specified in Section
1.1 hereof.
"Line of Credit Notes" shall have the meaning specified in Section 2.1
hereof.
"Loan" shall mean the loans under the Credit Facility (including the
Term Loan).
"Multiemployer Plan" shall have the meaning specified in
Section 5.10.
"Net Equity Proceeds" shall mean (i) the amounts received by the
Company (after payment of underwriting fees, attorneys' fees, filing fees and
related costs) in connection with the issuance of securities of the Company for
cash, (ii) the net value of assets less liabilities (after payment of
underwriting fees, attorneys' fees, filing fees and related costs) in connection
with the issuance of securities of the Company for assets, and (iii) the net
worth of another company in connection with the issuance of securities of the
Company for securities of the other company (if the transaction is accounted for
as a pooling of interest) or the net value of assets less liabilities (if the
transaction is accounted for as a purchase of assets), in either case, after
payment of underwriting fees, attorneys' fees, filing fees and related costs.
"Notes" shall mean the Line of Credit Notes and the Term Notes,
collectively, and any and all modifications, amendments, supplements, renewals,
rearrangements and/or extensions thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation.
- 45 -
"Plan" shall have the meaning specified in Section 5.10
hereof.
"Persons" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a government
or any department or agency thereof.
"Prime Rate" shall mean the rate of interest announced publicly by
Chemical Bank, in New York, New York, from time to time as its prime or base
rate.
"Prime Rate Advances" shall mean advances bearing interest at the Prime
Rate.
"Prime Rate Tranche" shall mean any part of the principal amount of the
Loans that constitutes Prime Rate Advances.
"Projected Fixed Charges" shall mean the sum of all scheduled payments
of principal and interest (calculated a the 90-day LIBO Rate as of the date of
calculation) due on all Debt of the Company and its Subsidiaries for the next
consecutive 12 months, under which the Company or any of its Subsidiaries is the
obligor.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Company or any Subsidiary, wherever located.
"Required Lenders" shall mean Lenders holding at least 60% of the
aggregate principal amount of the Notes.
"Restricted Investments" shall have the meaning set forth in
Section 6.10.
"Subsidiary" shall mean any corporation all of the stock of every class
of which, except directors' qualifying shares, shall, at the time as of which
any determination is being made, be beneficially owned or effectively controlled
by the Company, either directly or through Subsidiaries.
"Term Loans" shall mean the Term Loan.
"Term Notes" shall mean the Term Notes.
"Third Party" shall mean all lessees, sublessees, licensees and other
users of the Properties, excluding those users of the Properties in the ordinary
course of the Company's business (consistent with its practices on the date of
this Agreement) and on a temporary basis.
- 46 -
"Tranche" shall mean a part of the Loans that bears interest at a
particular rate depending on whether such tranche is a LIBO Rate Tranche or
Prime Rate Tranche.
"Term Loan" shall have the meaning specified in Section 1.1
hereof.
"Term Notes" shall have the meaning specified in Section 2.2
hereof.
11.2 FINANCIAL TERMS. Unless otherwise defined or the
context otherwise requires, all financial and accounting terms
shall be defined under generally accepted accounting principles.
11.3 DELAY. No delay on the part of the Lenders or any holder of the
Notes, in the exercise of any power or right shall operate as a waiver thereof,
nor shall any single or partial exercise of any power or right preclude other or
further exercise thereof, or the exercise of any other power or right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law (except to the extent waived by Section 9.3 hereof).
11.4 NOTICES. Any notice or demand which, by any provision of this
Agreement, is required or permitted to be given or served by Administrative
Agent or Lenders to or on the Companies shall be deemed to have been
sufficiently given and served for all purposes (if mailed) three calendar days
after being deposited, postage prepaid, in the United States mail, registered or
certified mail, or (if delivered by express courier) one calendar day after
being delivered to such courier, or (if delivered in person) the same day as
delivery, in each case addressed (until another address or addresses are given
in writing by the Companies to Administrative Agent or Lenders) as follows:
Tidewater Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
With a copy to:
Tidewater Inc.
0000 Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Cliffe X. Xxxxxxx, General Counsel
Any notice or demand which, by any provision of this Agreement, is
required or permitted to be given or served by the Companies to or on
Administrative Agent shall be deemed to have
- 47 -
been sufficiently given and served for all purposes (if mailed) three calendar
days after being deposited, postage prepaid, in the United States mail,
registered or certified mail, or (if delivered by express courier) one calendar
day after being delivered to such courier, or (if delivered in person) the same
day as delivery, in each case addressed (until another address or addresses are
given in writing by Administrative Agent to the Companies) as follows:
First National Bank of Commerce
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Mr. J. Xxxxxxx Xxxxx, Xx., Vice President
With a copy to:
Xxxxxx deV. Xxxxxxxx, Esq.
Xxxxxx Xxxxxx, L.L.P.
Texaco Center - 30th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Any notice or demand which, by any provision of this Agreement, is
required or permitted to be given or served by the Companies to or on Lenders
shall be deemed to have been sufficiently given and served for all purposes (if
mailed) three calendar days after being deposited, postage prepaid, in the
United States mail, registered or certified mail, or (if delivered by express
courier) one calendar day after being delivered to such courier, or (if
delivered in person) the same day as delivery, in each case addressed (until
another address or addresses are given in writing by Lenders to the Companies)
as follows:
First National Bank of Commerce
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Mr. J. Xxxxxxx Xxxxx, Xx., Vice President
AmSouth Bank of Alabama
0000 0xx Xxxxxx, Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxx, Assistant
Vice President
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Transportation Division
- 48 -
Whitney National Bank
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx, Vice President
Hibernia National Bank
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxx, Vice President
Premier Bank National Association
Place St. Xxxxxxx, Suite 1410
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxx, Vice President
Texas Commerce Bank National Association
000 Xxxxxx, 0xx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxx Xxxx, Vice President
With a copy to:
Xxxxxx deV. Xxxxxxxx, Esq.
Xxxxxx Xxxxxx, L.L.P.
Texaco Center - 30th Floor
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
11.5 COSTS, EXPENSES AND TAXES. The Companies shall pay on demand the
reasonable out-of-pocket costs and expenses of the Administrative Agent in
connection with the negotiation, preparation, execution and delivery of this
Agreement and any amendments thereto or waivers thereof which may be requested
by the Companies, INCLUDING the reasonable fees and out-of-pocket expenses of
legal counsel to Administrative Agent. The Companies shall pay on demand the
reasonable out-of-pocket costs and expenses of the Administrative Agent and each
of the Lenders in connection with the enforcement of this Agreement and/or the
Notes and in connection with any amendments thereto or waivers thereof which may
be requested by the Companies during the continuance of, or to avoid, a Default
or Event of Default, INCLUDING any amendments or waivers tantamount to a
refinancing, restructuring, or reorganization (whether or not under any
Bankruptcy Law). The out-of-pocket costs and expenses referred to in the
previous sentence shall include the reasonable fees and out-of-pocket expenses
of any legal counsel retained by the Administrative Agent or by any Lender, and
the reasonable fees and out-of-pocket expenses of any independent public
accountants and other outside experts retained by the
- 49 -
Administrative Agent on behalf of the Lenders. The Lenders agree that, with
respect to the retention of separate legal counsel for each Lender under such
circumstances, each will consider in good faith whether separate legal counsel
is reasonably appropriate under the policies of that Lender and, in any event,
endeavor to avoid unreasonable duplication of work effort by such legal counsel.
The Companies shall pay any and all documentary and other taxes (other than
income or gross receipts taxes generally applicable to banks) and shall
reimburse, hold harmless, and indemnify the Administrative Agent and each Lender
from and against any and all loss, liability, or legal or other expense with
respect to or resulting from any delay in paying or failure to pay any tax,
cost, expense, fee, or charge or that any of them may suffer or incur by reason
of the failure of the Companies to perform any of its obligations under this
Agreement or the Notes. Any amount payable to the Administrative Agent or any
Lender under this Section shall bear interest from the date of receipt of demand
for payment at the Prime Rate plus one percent (1%).
11.6 SEVERABILITY. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
11.7 COUNTERPARTS. This Agreement may be executed in as many
counterparts as may be deemed necessary or convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original but all such counterparts shall constitute but one and the
same instrument.
11.8 LAW. This Agreement and the Notes shall be contracts
made under and governed by the laws of the State of Louisiana.
11.9 SUCCESSORS. This Agreement shall be binding upon the Companies and
Lenders, and their respective successors and assigns, and shall inure to the
benefit of the Companies and Lenders, and the successors and assigns of Lenders.
The Companies shall not assign their rights or duties hereunder without the
consent of Lenders.
11.10 SINGULAR AND PLURAL. Words used herein in the singular, where the
context so permits, shall be deemed to include the plural and vice versa. The
definition of words in the singular herein shall apply to such words when used
in the plural where the context so permits and vice versa.
11.11 AMENDMENTS. No amendment or waiver of any provision of
this Agreement or consent to any departure therefrom by the
- 50 -
Companies or Lenders shall be effective unless the same shall be in writing and
signed by the Companies, the Administrative Agent and the Required Lenders,
PROVIDED that, without the written consent of all of the Lenders, no amendment
to this Agreement shall change the maturity of any Note, or change the principal
of or the rate or time of payment of interest or any premium payable with
respect to any Note, or change the principal payment date of any installment of
the Term Notes, or increase the Commitments, or release any of the Companies, or
affect the time, amount or allocation of any required prepayments, or reduce the
proportion of the Required Lenders required with respect to any consent, or
change the definition of Required Lenders or amend this Section 11.11. No course
of dealing between any of the Companies and the Lenders nor any delay in
exercising any rights hereunder or under any Note shall operate as a waiver of
any rights of any of the Lenders. In the case of a waiver or consent, such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
11.12 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties and supersedes any and all prior agreements with respect to
the transactions contemplated hereby, including specifically the Revolving
Credit and Term Loan Agreement by and among the Administrative Agent, Lenders,
the Company and certain of the Subsidiaries, dated as of November 30, 1994,
which is hereby terminated.
- 51 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
TIDEWATER INC.
By: XXX X. XXXXXXX
Name: Xxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial
Officer
GULF FLEET SUPPLY VESSELS, INC.
XXXXXXXX OIL & GAS, INC.
XXXXXXX MARINE CORPORATION
JAVA BOAT CORPORATION
QUALITY SHIPYARDS, INC.
S.O.P., INC.
SEAFARER BOAT CORPORATION
TIDEWATER COMPRESSION SERVICE, INC.
TIDEWATER EXPANSION, INC.
TIDEWATER MARINE, INC.
TIDEWATER MARINE ALASKA, INC.
TIDEWATER MARINE ATLANTIC, INC.
TIDEWATER MARINE SERVICE, INC.
TIDEWATER MARINE WESTERN, INC.
TIDEWATER SERVICES, INC.
TT BOAT CORPORATION
TWENTY GRAND MARINE SERVICE, INC.
TWENTY GRAND OFFSHORE, INC.
XXXXXX GULF MARINE CORPORATION
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XXXXXX GULF MARINE OPERATORS, INC.
XXXXXX GULF PACIFIC, INC.
By: XXX X. XXXXXXX
Name: Xxx X. Xxxxxxx
Title: Authorized Officer
FIRST NATIONAL BANK OF COMMERCE,
as Administrative Agent,
Agent and Lender
By: J. XXXXXXX XXXXX, XX.
Name: J. Xxxxxxx Xxxxx, Xx.
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as Agent and Lender
By: XXXXXX X'XXXXXX
Name: Xxxxxx X'Xxxxxx
Title: Director
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Agent and Lender
By: XXXX XXXX
Name: Xxxx Xxxx
Title: Vice President
AMSOUTH BANK OF ALABAMA, as Lender
By: XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice President
- 53 -
WHITNEY NATIONAL BANK, as Lender
By: XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
HIBERNIA NATIONAL BANK, as Lender
By: XXXXX X. XXXX
Name: Xxxxx X. Xxxx
Title: Vice President
PREMIER BANK NATIONAL ASSOCIATION,
as Lender
By: XXXXX X. XXXXXXXX
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
- 54 -
