EXHIBIT 10.1
EXECUTION
COUNTERPART
CREDIT AGREEMENT
$25,000,000
dated as of January 22, 1998
among
INTERNATIONAL SHIPHOLDING CORPORATION
as Borrower
CERTAIN LENDERS
CITICORP SECURITIES, INC.
as Arranger
CITIBANK, N.A.
as Administrative Agent
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. CERTAIN DEFINED TERMS................................. 1
Section 1.02. COMPUTATION OF TIME PERIODS........................... 15
Section 1.03. ACCOUNTING TERMS...................................... 15
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. THE ADVANCES.......................................... 15
Section 2.02. MAKING THE ADVANCES................................... 16
Section 2.03. REPAYMENT............................................. 17
Section 2.04. TERMINATION OR REDUCTION OF THE COMMITMENTS........... 17
Section 2.05. PREPAYMENTS, ETC...................................... 18
Section 2.06. INTEREST.............................................. 18
Section 2.07. FEES.................................................. 19
Section 2.08. CONVERSION AND CONTINUATION OF ADVANCES............... 19
Section 2.09. INCREASED COSTS, ILLEGALITY, ETC...................... 20
Section 2.10. PAYMENTS AND COMPUTATIONS............................. 22
Section 2.11. TAXES................................................. 23
Section 2.12. SHARING OF PAYMENTS, ETC.............................. 26
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. CONDITIONS PRECEDENT TO INITIAL BORROWING............. 26
Section 3.02. CONDITIONS PRECEDENT TO EACH BORROWING................ 27
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER........ 28
ARTICLE V
(1)
PAGE
COVENANTS
Section 5.01. AFFIRMATIVE COVENANTS................................. 31
Section 5.02. NEGATIVE COVENANTS.................................... 32
Section 5.03. REPORTING REQUIREMENTS................................ 34
Section 5.04. FINANCIAL COVENANTS................................... 35
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. EVENTS OF DEFAULT..................................... 36
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01. AUTHORIZATION AND ACTION.............................. 38
Section 7.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC.................. 38
Section 7.03. CITIBANK AND AFFILIATES............................... 39
Section 7.04. LENDER CREDIT DECISION................................ 39
Section 7.05. INDEMNIFICATION....................................... 39
Section 7.06. SUCCESSOR ADMINISTRATIVE AGENT........................ 40
ARTICLE VIII
MISCELLANEOUS
Section 8.01. AMENDMENTS, CONSENTS, ETC............................. 40
Section 8.02. NOTICES, ETC.......................................... 41
Section 8.03. NO WAIVER; REMEDIES................................... 42
Section 8.04. COSTS, EXPENSES AND INDEMNIFICATION................... 42
Section 8.05. GOVERNING LAW; SUBMISSION TO JURISDICTION............. 43
Section 8.06. ASSIGNMENTS AND PARTICIPATIONS........................ 44
Section 8.07. EXECUTION IN COUNTERPARTS............................. 47
Section 8.08. WAIVER OF JURY TRIAL.................................. 47
Section 8.09. SURVIVAL.............................................. 47
Section 8.10. CAPTIONS.............................................. 47
Section 8.11. SUCCESSORS AND ASSIGNS................................ 47
(2)
SCHEDULES
SCHEDULE 4.01(b) Subsidiaries
SCHEDULE 4.01(g) Litigation
SCHEDULE 4.01(m) Existing Debt
EXHIBITS
EXHIBIT A Form of Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Assignment and Acceptance
EXHIBIT D Form of Compliance Certificate
(3)
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of January 22, 1998 among INTERNATIONAL
SHIPHOLDING CORPORATION, a Delaware corporation (the "BORROWER"); each of the
lenders (the "INITIAL LENDERS") listed on the signature pages hereof and each
other Person that shall become a party hereto as a Lender pursuant to Section
8.06 (collectively with the Initial Lenders, the "LENDERS"); and CITIBANK, N.A.,
as administrative agent (together with its successors in such capacity, the
"ADMINISTRATIVE AGENT").
The Borrower has requested that the Lenders extend credit to the
Borrower in an aggregate principal amount at any one time outstanding not
exceeding $25,000,000 for the general corporate purposes of the Borrower
(including without limitation the financing of certain acquisitions).
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ACQUISITION" means any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which the
Borrower and/or any of its Subsidiaries (i) acquires any going business or
all or substantially all of the assets of any firm, corporation or
division thereof, whether through the purchase of assets, merger or
otherwise, (ii) directly or indirectly acquires (in one transaction or as
the most recent transaction in a series of transactions) control of at
least a majority of Voting Shares of another Person or (iii) directly or
indirectly acquires control of a 50% or more ownership interest in any
partnership, joint venture or other entity, or of any general partnership
(or equivalent) interest in any such entity.
"ADMINISTRATIVE AGENT" has the meaning specified in the recital of
parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent at Citibank,
Account No. 00000000, Attention: Savas Divan, or such other account
maintained by the Administrative Agent as may be designated by the
Administrative Agent in a written notice to the Lenders and the Borrower.
"ADVANCES" means, collectively, the Advances provided for in Section
2.01.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "CONTROL" (including the terms "CONTROLLING",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH") of a Person means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance.
"APPLICABLE MARGIN" means 1.00% per annum.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Assignee, accepted by the Administrative
Agent, in accordance with Section 8.06, in substantially the form of
Exhibit C.
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time to time, as Citibank's "base rate"; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
Each change in any interest rate provided for herein based upon the Base
Rate resulting from a change in the Base Rate shall take effect at the
time of such change in the Base Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as provided
in Section 2.06(a)(i).
"BONDS" means the 7-3/4% Senior Notes due 2007 to be issued pursuant
to the Indenture.
"BORROWER" has the meaning specified in the recital of parties to this
Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower maintained
with Citibank at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Account No. 00000000, or such other account maintained by the Borrower
with Citibank as may be designated by the Borrower in a written notice to
the Administrative Agent.
"BORROWING" means a borrowing consisting of simultaneous Advances of
the same Type made by the Lenders pursuant to Section 2.01.
"BUSINESS DAY" means a day on which banks are not required or
authorized to close in New York City and, if such Business Day relates to
a Eurodollar Rate Advance, on which dealings are carried on in the London
interbank market.
"CAPITAL LEASE OBLIGATIONS" means, for any Person, all obligations
of such Person to pay rent or other amounts under a lease of (or other
agreement conveying the right to use) property to the extent such
obligations are required to be classified and accounted for as a capital
lease on a balance sheet of such Person under GAAP, and, for purposes of
this Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"CHANGE IN CONTROL" means the occurrence of one or more of the
following events:
(a) a "person" or "group" (within the meaning of Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended),
other than the Xxxxxxx Family, is or becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934,
as amended) of the greater of (1) forty percent (40%) of the total
voting power of the then outstanding Voting Stock of the Borrower
and (2) the total voting power of the then outstanding Voting Stock
of the Borrower beneficially owned in the aggregate by the Xxxxxxx
Family;
(b) the individuals who, as of the date of this Agreement, are
members of the Board of Directors of the Borrower (the "INCUMBENT
BOARD") cease for any reason to constitute at least two-thirds of
the Board of Directors of the Borrower; PROVIDED, however, that if
either the election of any new director or the nomination for
election of any new director by the Borrower's stockholders was
approved by a vote of at least two-thirds of the Incumbent Board,
such new director shall be considered as a member of the Incumbent
Board;
(c) (1) the Borrower consolidates with or merges into any
other Person or conveys, transfers or leases all or substantially
all of its assets to any Person or (2) any Person merges into the
Borrower, in either event pursuant to a transaction in which any
Voting Stock of the Borrower outstanding immediately prior to the
effectiveness thereof is reclassified or changed into or exchanged
for cash, securities or other property (other than any such
transactions where (x) the outstanding Voting Stock of the Borrower
is converted into or exchanged for (I) Voting Stock (other than
Redeemable Capital Stock) of the surviving or transferee
corporation, or (II) cash, securities and/or other property in an
amount which could be paid as a restricted payment under the
Indenture (and is treated as such) and (y) immediately after the
consummation of such transaction, no "person" or "group" other than
the Xxxxxxx Family is or becomes the "beneficial owner," directly or
indirectly of more than 35% of the total Voting Stock of such
surviving or transferee corporation); or
(d) the Borrower is not in material compliance with the
citizenship requirements imposed under the Merchant Marine Act of
1920, as amended, the Merchant Marine Act of 1936, as amended, or
any other applicable United States laws for entities engaged in
coastwise trade or eligible to receive operating differential
subsidies.
For purposes of this definition, the following terms have the following
respective meanings: (i) "CAPITAL STOCK" of any Person means any and all
shares, interests, participations or other equivalents (however
designated) of such Person's capital stock, whether now outstanding or
issued after the date of this Agreement; (ii) "XXXXXXX FAMILY" means (A)
Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx, (B) the wives and issue of Xxxxx X.
Xxxxxxx and Xxxx X. Xxxxxxx and (C) any Affiliate of any of the foregoing;
and (iii) "REDEEMABLE CAPITAL STOCK" means any Capital Stock that, either
by its terms, by the terms of any security into which it is convertible or
exchangeable or otherwise, is, or upon the happening of an event or
passage of time would be, required to be redeemed prior to the final
Stated Maturity (as defined in the Indenture as in effect on the date
hereof) of the Bonds or is redeemable at the option of the Holder (as
defined in the Indenture as in effect on the date hereof) thereof at any
time prior to such final Stated Maturity (as defined in the Indenture as
in effect on the date hereof), or is convertible into or exchangeable for
debt securities at any time prior to such final Stated Maturity (as
defined in the Indenture as in effect on the date hereof).
"CITIBANK" means Citibank, N.A., a national banking association.
"CLOSING DATE" means the date on which the Administrative Agent
confirms to the Borrower that the conditions precedent set forth in
Section 3.01 are satisfied. The Administrative Agent will promptly notify
the Borrower of the occurrence of the Closing Date.
"COMMITMENT" means, as to any Initial Lender, the amount set forth
opposite its name on the signature pages hereof or, as to any Lender that
has entered into an Assignment and Acceptance, the amount set forth for
such Lender in the Register, in each case as the same may be reduced
pursuant to Section 2.05 or increased or reduced pursuant to assignments
effected in accordance with Section 8.06. The original aggregate amount of
the Commitments is $25,000,000.
"COMMITMENT TERMINATION DATE" means the earlier of (i) the earlier
of (a) March 31, 2000 or (b) the second anniversary of the Closing Date
(or, if any such date is not a Business Day, the immediately preceding
Business Day) and (ii) the date of termination or cancellation of the
Commitments pursuant to the terms of this Agreement.
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONTINUATION", "CONTINUE" and "CONTINUED" each refers to a
continuation of Eurodollar Rate Advances from one Interest Period to the
next Interest Period pursuant to Section 2.08.
"CONVERSION", "CONVERT" and "CONVERTED" each refers to a conversion
of Advances of one Type into Advances of the other Type pursuant to
Section 2.08 or 2.09.
"DEBT" means, with respect to any Person (determined without
duplication): (a) all indebtedness of such Person for borrowed money; (b)
all obligations of such Person for the deferred purchase price of Property
or services (other than trade payables incurred in the ordinary course of
such Person's business but only if and for so long as the same remain
payable on customary trade terms and accrued expenses incurred in the
ordinary course of business); (c) all obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments; (d) all
obligations of such Person created or arising under any conditional sale
or other title retention agreement with respect to Property acquired by
such Person (even though the rights and remedies of the seller or the
lender under such agreement in the event of default are limited to
repossession or sale of such Property); (e) all Capital Lease Obligations
of such Person; (f) all obligations, contingent or otherwise, of such
Person in respect of acceptances, letters of credit or similar extensions
of credit (excluding trade payables to the extent excluded from clause (b)
above); (g) all obligations of such Person to redeem, retire, defease or
otherwise make any payment in respect of shares of capital stock of such
Person; (h) all Debt of other Persons referred to in clauses (a) through
(g) above or clause (i) below Guaranteed by such Person; and (i) all Debt
referred to in clause (a) through (h) above secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien on Property or revenues of such Person even though
such Person has not assumed or become liable for the payment of such Debt.
"DEFAULT" means any Event of Default and any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" below its
name on the signature pages hereof or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other office of such Lender
as such Lender may from time to time specify to the Administrative Agent.
"EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a Consolidated basis, the sum of (a) net income (or net
loss) PLUS (b) Interest Expense PLUS (c) income tax expense PLUS (d)
depreciation, amortization and other non-cash charges deducted in arriving
at such net income (or loss), determined in accordance with GAAP.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) a commercial bank
organized under the laws of the United States, or any State thereof, and
having total assets in excess of $1,000,000,000; (c) a savings bank
organized under the laws of the United States, or any state thereof, and
having a net worth in excess of $100,000,000; (d) a commercial bank
organized under the laws of any other country that is a member of the OECD
or that has concluded special lending arrangements with the International
Monetary Fund associated with its General Arrangements to Borrow, or a
political subdivision of any such country, and having total assets in
excess of $1,000,000,000; (e) the central bank of any country that is a
member of the OECD; (f) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership, trust
or other entity) that is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business, and
having total assets in excess of $100,000,000; and (g) any other Person
(other than the Borrower or an Affiliate of the Borrower) approved by the
Administrative Agent and the Borrower, such approval of the Borrower not
to be unreasonably withheld or delayed.
"ENVIRONMENTAL LAW" means any Federal, state, local or foreign
governmental law, rule, regulation, order, writ, judgment, injunction or
decree relating to pollution or protection of the environment or the
treatment, storage, disposal, release, threatened release or handling of
Hazardous Materials, including, without limitation, CERCLA, the
Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control Act,
the Clean Air Act, the Safe Drinking Water Act, the Atomic Energy Act, the
Federal Insecticide, Fungicide and Rodenticide Act and the Occupational
Safety and Health Act, in each case as amended from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of
Sections 414(b), (c), (m) and (o) of the Internal Revenue Code.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" below
its name on the signature pages hereof or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such office is specified,
its Domestic Lending Office), or such other office of such Lender as such
Lender may from time to time specify to the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum equal to the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such average is not
such a multiple) of the rates per annum at which deposits in U.S. Dollars
are offered to the principal office of the Reference Bank in London,
England by prime banks in the London interbank market at approximately
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurodollar Rate Advances comprising part of such Borrowing (determined
without giving effect to any assignments by such Reference Bank) and for a
period equal to such Interest Period. The Eurodollar Rate for each
Interest Period for each Eurodollar Rate Advance comprising part of the
same Borrowing shall be determined by the Administrative Agent on the
basis of applicable rates furnished to and received by the Administrative
Agent from the Reference Bank two Business Days before the first day of
such Interest Period, SUBJECT, HOWEVER, to the provisions of Section 2.10.
"EURODOLLAR RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period for
each Eurodollar Rate Advance comprising part of the same Borrowing means
the reserve percentage (if any) applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with deposits exceeding $1,000,000,000 with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become
friable, and radon gas, (b) any substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes",
"toxic substances", "toxic pollutants", "contaminants" or "pollutants", or
words of similar meaning and regulatory effect, under any Environmental
Law and (c) any other substance exposure to which is regulated under any
Environmental Law.
"HOSTILE ACQUISITION" means an Acquisition that has not been
approved by the board of directors of the target company prior to the
commencement of a tender offer or proxy contest in respect thereof.
"INDEMNIFIED PARTY" has the meaning specified in Section 8.04(b).
"INDENTURE" means the Indenture to be dated as of January 22, 1998
between the Borrower and The Bank of New York, as trustee, as amended,
restated or supplemented from time to time.
"INITIAL LENDERS" has the meaning specified in the recital of the
parties to this Agreement.
"INSUFFICIENCY" means, with respect to any Plan at any date, the
amount, if any, by which the "accumulated benefit obligation" (as defined
in Statement of Financial Accounting Standards 87) exceeds the fair market
value of the assets of such Plan as of the date of the most recent
actuarial valuation for such Plan, calculated using the actuarial methods,
factors and assumptions used in such valuation.
"INTEREST COVERAGE RATIO" means, for any period, the ratio of (a)
EBITDA for such period to (b) Interest Expense for such period.
"INTEREST EXPENSE" means, with respect to the Borrower and its
Subsidiaries on a Consolidated basis, for any period (without
duplication), interest expense, whether paid or accrued (including the
interest component of Capital Lease Obligations), on all Debt of the
Borrower and its Subsidiaries for such period, net of interest income, all
determined in accordance with GAAP.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; PROVIDED,
that:
(a) any Interest Period for any Advance that would otherwise
extend beyond the Commitment Termination Date shall end on the
Commitment Termination Date;
(b) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, PROVIDED that, if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day;
(c) whenever the first day of any Interest Period occurs on
the last day of a calendar month (or on any day for which there is
no numerically corresponding day in the appropriate subsequent
calendar month), such Interest Period shall end on the last Business
Day of the appropriate subsequent calendar month; and
(d) there shall not be more than three Interest Periods in
effect at any one time.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"LENDERS" has the meaning specified in the recital of the parties
hereto.
"LEVERAGE RATIO" means, at any time, the ratio of (1) the aggregate
amount outstanding of Debt of the Borrower and its Consolidated
Subsidiaries for or in respect of borrowed money to (2) EBITDA for the
then most recently concluded Rolling Period.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"LOAN DOCUMENTS" means, collectively, this Agreement and the Notes.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
financial condition, business, assets, liabilities, properties, prospects
or results of operations of the Borrower or of the Borrower and its
Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
financial condition, business, assets, liabilities, properties, prospects
or results of operations of the Borrower or of the Borrower and its
Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or any Lender under any of the Loan Documents or (c)
the ability of the Borrower to perform its obligations under the Loan
Documents.
"MATERIAL DEBT" means, at any time, Debt having an aggregate
outstanding principal amount of $2,000,000 or more.
"MULTIPLE EMPLOYER PLAN" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that is subject to Title IV of
ERISA and (a) is maintained for employees of such Person or any of its
ERISA Affiliates and at least one Person other than such Person and its
ERISA Affiliates or (b) was so maintained and in respect of which such
Person or any of its ERISA Affiliates has or would have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or wer to be
terminated.
"NET WORTH" means, as at any date for any Person, the sum for such
Person and its Subsidiaries (determined on a consolidated basis without
duplication in accordance with GAAP), of the following:
(a) the amount of capital stock; PLUS
(b) the amount of surplus and retained earnings (or, in the
case of a surplus or retained earnings deficit, MINUS the amount of
such deficit); PLUS
(c) deferred charges to the extent amortized and acquired
contract costs net of accumulated amortization as stated on the then
most recent audited balance sheet of such Person; MINUS
(d) the sum of the following: cost of treasury shares and the
book value of all assets that should be classified as intangibles
(without duplication of deductions in respect of items already
deducted in arriving at surplus and retained earnings) but in any
event including goodwill, minority interests, research and
development costs, trademarks, trade names, copyrights, patents and
franchises, unamortized debt discount and expense, all reserves and
any write-up in the book value of assets resulting from a
revaluation thereof subsequent to December 31, 1996.
"NOTE" means a promissory note of the Borrower payable to the order
of a Lender, in substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the
Advances made by such Lender.
"NOTICE OF BORROWING" has the meaning specified in Section 2.02(a).
"OECD" means the Organization for Economic Cooperation and
Development.
"OTHER TAXES" has the meaning specified in Section 2.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor.
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced (or, if such a proceeding has been commenced, such
proceeding is being contested in good faith by appropriate proceedings and
enforcement of any Lien has been and is stayed): (a) Liens existing on the
date hereof and heretofore disclosed to the Administrative Agent in
writing,
(b) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.01(b),
(c) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens, statutory landlord's
Liens and other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a period of
more than 30 days or which are being contested in good faith and by
appropriate proceedings,
(d) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations,
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases (other than
capital leases), surety and appeal bonds, and performance bonds and
other obligations of a like nature incurred, in each case arising in
the ordinary course of business,
(f) as to any particular property at any time, such easements,
encroachments, covenants, rights of way, minor defects,
irregularities or encumbrances on title which do not materially
impair the use of such property for the purpose for which it is held
by the owner thereof,
(g) municipal and zoning ordinances that are not violated in
any material respect by the existing improvements and the present
use made by the owner thereof,
(h) real estate taxes and assessments not yet delinquent,
(i) Liens consisting of bank set-off rights arising by
operation of law in the ordinary course of business,
(j) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or
the payment of which is covered in full (subject to a customary
deductible) by insurance,
(k) any Lien on property granted in connection with new
borrowings to finance the acquisition of such property (directly or
indirectly), PROVIDED, that the aggregate principal amount of the
Debt secured thereby does not exceed 80% of the purchase price of
the property so acquired and such Lien does not extend to any other
property,
(n) Liens in connection with the refinancing of Debt remaining
outstanding after issuance of the Bonds and prepayment of secured
Debt, PROVIDED, that the amount refinanced is not increased and such
Lien does not extend to any other property.
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"POST-DEFAULT RATE" means, in respect of any principal of any
Advance or any other amount whatsoever payable under this Agreement or any
Note that is not paid when due (whether at stated maturity, by
acceleration, by optional or mandatory prepayment or otherwise), a rate
per annum during the period from and including the due date to but
excluding the date on which such amount is paid in full equal to 2% per
annum PLUS the Base Rate as in effect from time to time (PROVIDED, that if
the amount s in default is principal of a Eurodollar Rate Advance and the
due date thereof is a day other than the last day of an Interest Period
therefor, the "Post-Default Rate" for such principal shall be, for the
period for and including such due date to but excluding the last day of
such Interest Period, 2% per annum PLUS the interest rate for such Advance
as provided in Section 2.08(a)(ii) and, thereafter, the rate provided for
above in this definition).
"QUARTERLY DATES" means March 31, June 30, September 30 and December
31 in each year, the first of which shall be the first such day after the
Closing Date, PROVIDED, that if any such day is not a Business Day, the
relevant Quarterly Date shall be the immediately succeeding Business Day.
"REFERENCE BANK" means the principal London office of Citibank.
"REGISTER" has the meaning specified in Section 8.06(c).
"REGULATION A", "REGULATION D", "REGULATION G", "REGULATION U" and
"REGULATION X" mean Regulations A, D, G, U and X of the Board of Governors
of the Federal Reserve System, respectively, as in effect from time to
time.
"REQUIRED LENDERS" means at any time Lenders holding in the
aggregate at least 66-2/3% of the Advances (or, if no Advances are
outstanding, at least 66-2/3% of the then aggregate amount of the
Commitments).
"ROLLING PERIOD" means each period of four consecutive fiscal
quarters of the Borrower, commencing with such period ending in March,
1998.
"SINGLE EMPLOYER PLAN" of any Person means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that is subject to Title IV of
ERISA and that (a) is maintained for employees or former employees of such
Person or any of its ERISA Affiliates and no Person other than such Person
and its ERISA Affiliates or (b) was so maintained and in respect of which
such Person or any of its ERISA Affiliates has or would have liability
under Section 4069 of ERISA in the event such plan has been o were to be
terminated.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect
a majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of suc
partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries or
by one or more of such Person's other Subsidiaries.
"TAXES" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, including interest and penalties thereon.
"TYPE" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"U.S. DOLLARS" and "$" means lawful money of the United States of
America.
"VOTING STOCK" means capital stock issued by a corporation or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right to so vote has been suspended by the
happening of such contingency.
"WITHDRAWAL LIABILITY" means, as of any determination date, the
aggregate amount of the liabilities, if any, pursuant to Section 4201 of
ERISA if the Borrower or any ERISA Affiliate made a complete withdrawal
from all Plans and any increase in contributions pursuant to Section 4243
of ERISA.
Section 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" mean
"to but excluding".
Section 1.03. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP; PROVIDED, that if any
change in GAAP proposed after the Closing Date materially affects the
calculation of any financial covenant in Section 5.04, the Administrative Agent
(at the request of the Required Lenders) may by notice to the Borrower require
that such covenant thereafter be calculated in accordance with GAAP as in
effect, and applied by the Borrower, immediately before such change in GAAP
occurs. If such notice is given, the compliance certificates delivered pursuant
to Section 5.03 after such change occurs shall be accompanied by reconciliations
of the difference between the calculation set forth therein and a calculation
made in accordance with GAAP as in effect from time to time after such change
occurs. To enable the ready determination of compliance with the covenants set
forth in Section 5.04 hereof, the Borrower will not change from December in each
year the date on which its fiscal year ends, nor from March 31, June 30 and
September 30 the dates on which the first three fiscal quarters in each fiscal
year end.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
Section 2.01. THE ADVANCES. (a) Each Lender severally agrees, on the terms
and conditions hereinafter set forth, to make advances (each an "ADVANCE") to
the Borrower from time to time on any Business Day during the period from the
date hereof until the Commitment Termination Date in an aggregate amount at any
one time outstanding not to exceed at any time the amount set forth opposite the
name of such Lender on the signature pages hereof under the heading "Commitment"
and, as to all Lenders in an aggregate principal amount at any one time
outstanding up to but not exceeding $25,000,000.
(b) Each Borrowing shall be in an aggregate amount not less than
$1,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall consist of Advances of the same Type made on the same day.
(c) The Advances shall be made by the Lenders ratably according to
their respective Commitments.
(d) Within the limits of each Lender's Commitment in effect from
time to time, the Borrower may borrow under this Section 2.01, prepay
pursuant to Section 2.05(a) and reborrow on and subject to the terms and
conditions hereof.
Section 2.02. MAKING THE ADVANCES.
(a) (i) Each Borrowing shall be made on notice, given not later than
12:00 p.m. (New York City time) on the Business Day of, in respect of Base
Rate Advances, or, with respect to a Borrowing of Eurodollar Rate
Advances, 12:00 p.m. (New York City time) on the third Business Day prior
to the date of, the proposed Borrowing, by the Borrower to the
Administrative Agent, which shall give to each Lender prompt notice
thereof by telecopier. Each such notice of a Borrowing (a "NOTICE OF
BORROWING") shall be by telecopier, confirmed immediately in writing, in
substantially the form of Exhibit B, specifying therein (1) the requested
date of such Borrowing, (2) the requested Type of Advances comprising such
Borrowing, (3) the requested aggregate amount of such Borrowing and (4) in
the case of a Borrowing consisting of Eurodollar Rate Advances, the
requested initial Interest Period for each such Advance.
(ii) In the case of a proposed Borrowing comprised of Eurodollar
Rate Advances, the Administrative Agent shall promptly notify the Borrower
and each Lender of the applicable interest rate under Section 2.06(a)(ii).
(iii) Each Lender shall, before 12:00 p.m. (New York City time) on
the date of each Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable
portion of such Borrowing. Promptly after the Administrative Agent's
receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will transfer same day
funds to the Borrower's Account.
(b) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before
the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III (other than losses, costs
or expenses relating to Taxes or Other Taxes which shall be governed
exclusively by Section 2.11), including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Advance to be made by such Lender as
part of such Borrowing when such Advance, as a result of such failure, is
not made on such date.
(c) Unless the Administrative Agent shall have received notice from
a Lender prior to 10:00 a.m. (New York City time) on the date of any
Borrowing that such Lender will not make available to the Administrative
Agent such Lender's ratable portion of such Borrowing, the Administrative
Agent may assume that such Lender has made such portion available to the
Administrative Agent on the date of such Borrowing in accordance with
Section 2.02(a) and the Administrative Agent may, in reliance upon suc
assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Administrative Agent and the
Administrative Agent shall have made available such corresponding amount
to the Borrower, such Lender and the Borrower severally agree to repay to
the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is
mad available to the Borrower until the date such amount is repaid to the
Administrative Agent, at (i) in the case of the Borrower, the interest
rate applicable at such time under Section 2.06 to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of
any Borrowing.
Section 2.03. REPAYMENT. The Borrower hereby promises to pay to the
Administrative Agent for the account of each Lender on the Commitment
Termination Date the full outstanding principal amount of the Advances of such
Lender. All repayments of principal of the Advances shall be made together with
interest accrued to the date of such repayment on the principal amount repaid.
Section 2.04. TERMINATION OR REDUCTION OF THE COMMITMENTS.
(a) MANDATORY. The Commitments shall automatically be reduced to
zero on the Commitment Termination Date.
(b) REDUCTIONS. The Borrower may, upon three Business Days' notice
to the Administrative Agent, reduce the Commitments in whole or in part in
the amount of $2,500,000 or an integral multiple thereof. Each reduction
of the Commitments shall be applied to the Commitments of the Lenders PRO
RATA according to their respective Commitments.
(c) REDUCTIONS PERMANENT. Commitments once terminated or reduced may
not be reinstated.
Section 2.05. PREPAYMENTS, ETC.
(a) OPTIONAL PREPAYMENTS. The Borrower may, upon at least three
Business Days' notice (in the case of prepayment of Eurodollar Rate
Advances) or upon notice given on the date of prepayment (in the case of
prepayments of Base Rate Advances) to the Administrative Agent (which
notice shall state the proposed date and aggregate principal amount of the
prepayment), and if such notice is given the Borrower shall, prepay the
outstanding principal amount of the Advances in the aggregate amount and o
the date specified in such notice, together with accrued interest to the
date of such prepayment on the principal amount prepaid; PROVIDED, that
(x) each partial prepayment shall be in an aggregate principal amount of
$1,000,000 or an integral multiple of $1,000,000 in excess thereof, (y)
any such prepayment of a Eurodollar Rate Advance other than on the last
day of the Interest Period therefor shall be accompanied by, and subject
to, the payment of any amount payable under Section 8.04(c) in respec of
such prepayment and (z) each such notice shall be made on the relevant day
not later than 12:00 p.m. (New York City time). Each prepayment of
Advances under this Section 2.05(a) shall be made for account of the
Lenders PRO RATA according to the aggregate outstanding principal amount
of Advances held by them.
(b) PAYMENTS WITH INTEREST. All prepayments under this Section 2.05
shall be made together with accrued interest to the date of such
prepayment on the principal amount prepaid.
Section 2.06. INTEREST.
(a) ORDINARY INTEREST. The Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender from the date of
such Advance until such principal amount shall be paid in full at the
following rates per annum:
(i) BASE RATE ADVANCES. If such Advance is a Base Rate
Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable quarterly in arrears on each
Quarterly Date and on the date such Base Rate Advance shall be
Converted (but only on the amount Converted) or paid in full.
(ii) EURODOLLAR RATE ADVANCES. If such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (1) the Eurodollar
Rate for such Interest Period for such Advance PLUS (2) the
Applicable Margin in effect from time to time, payable in arrears on
the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each three-month
anniversary of the first day of such Interest Period occurring
during such Interest Period.
(b) POST-DEFAULT INTEREST. Notwithstanding Section 2.06(a), the
Borrower shall pay interest on any amount that is not paid when due under
this Agreement (whether at stated maturity, by acceleration or otherwise)
at the Post-Default Rate. Interest under this Section 2.06(b) shall be
payable on demand.
Section 2.07. FEES. The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a commitment fee on the average daily unused
amount of such Lender's Commitment from the Closing Date (in the case of each
Initial Lender), and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender (in the case of each other
Lender), until the Commitment Termination Date, payable in arrears on each
Quarterly Date and on the Commitment Termination Date, at a rate equal to 0.25%
per annum.
Section 2.08. CONVERSION AND CONTINUATION OF ADVANCES.
(a) OPTIONAL CONVERSION. The Borrower may on any Business Day, upon notice
given to the Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed Conversion and
subject to the provisions hereof, Convert all or any portion of the Advances of
one Type outstanding (and, in the case of Eurodollar Rate Advances, having the
same Interest Period); PROVIDED, that any such Conversion of a Eurodollar Rate
Advance other than on the last day of the Interest Period therefor shall be
accompanied by, and subject to, the payment of any amount payable under Section
8.04(c) in respect of such Conversion, and any Conversion of Base Rate Advances
into Eurodollar Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.08(b)(i). Each such notice of Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the aggregate amount and Type of the Advances (and, in the case
of Eurodollar Rate Advances, the Interest Period therefor) to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) FAILURE TO SELECT; CERTAIN MANDATORY CONVERSIONS.
(i) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $1,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any outstanding Eurodollar Rate Advances in accordance
with the provisions contained in the definition of "Interest Period" in
Section 1.01 and in clause (a) or (c) of this Section 2.08, the
Administrative Agent will forthwith so notify the Borrower and the
Lenders, and the Borrower shall automatically be deemed irrevocably to
have selected an Interest Period of one month.
(iii) Upon the occurrence and during the continuance of any Event of
Default, unless the Required Lenders otherwise agree, (x) each Eurodollar
Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances into, or to
Continue, Eurodollar Rate Advances shall be suspended.
(c) CONTINUATIONS. The Borrower may, on any Business Day, upon notice
given to the Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed Continuation,
Continue all or any portion of the outstanding Eurodollar Rate Advances having
the same Interest Period as such Eurodollar Rate Advances; PROVIDED, that any
such Continuation shall be in an amount not less than the minimum Borrowing
amount specified in Section 2.01(b). Each such notice of Continuation shall,
within the restrictions specified above, specify (i) the date of such
Continuation, (ii) the aggregate amount of, and the initial Interest Period for,
the Advances being Continued and (iii) the duration of the initial Interest
Period for the Eurodollar Rate Advances subject to such Continuation. Each
notice of Continuation shall be irrevocable and binding on the Borrower.
Section 2.09. INCREASED COSTS, ILLEGALITY, ETC.
(a) If, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation (to the extent any such introduction or
change occurs after the date hereof) after the date hereof or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority adopted or made after the date hereof (whether or not
having the force of law), there shall be any increase in the cost to any Lender
of agreeing to make or making, funding or maintaining Eurodollar Rate Advances
(except with respect to costs relating to Taxes which shall be governed
exclusively by Section 2.11), then the Borrower shall from time to time, within
ten Business Days after demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost; PROVIDED, that, before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Applicable Lending Office
if the making of such a designation would avoid the need for, or reduce the
amount of, such increased cost and would not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender. A certificate as to the
amount of such increased cost, submitted to the Borrower by such Lender in good
faith and setting forth in reasonable detail the basis for such increased cost,
shall be conclusive and binding on the Borrower, absent manifest error.
(b) If any Lender determines that compliance with any law or regulation
enacted or introduced after the date hereof or any guideline or request from any
central bank or other governmental authority adopted or made after the date
hereof (whether or not having the force of law) affects the amount of capital
required or expected to be maintained by such Lender or any corporation or other
entity controlling such Lender and that the amount of such capital is increased
by or based upon the existenc of such Lender's commitment to lend hereunder and
other commitments of this type (or similar contingent obligations), then, within
ten Business Days after demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender (or such corporation or
other entity) in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower by such Lender in good faith and setting forth in
reasonable detail the basis for such increased cost shall be conclusive and
binding on the Borrower, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances, (i) the Required
Lenders reasonably determine and notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will not adequately
reflect the cost to such Required Lenders of making, funding or maintaining
their respective Eurodollar Rate Advances for such Interest Period, or (ii) the
Reference Bank does not furnish timely information to the Administrative Agent
for determining the Eurodollar Rate for any Eurodollar Rate Advances, the
Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon (x) each Eurodollar Rate Advance will automatically, on the last day
of any then existing Interest Period therefor, Convert to a Base Rate Advance,
and (y) the obligation of the Lenders to make, or to Convert Advances into, or
to Continue, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and such Lenders that the
circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation (to the extent any such introduction or change occurs after the date
hereof) shall make it unlawful, or any central bank or other governmental
authority having appropriate jurisdiction shall assert in writing that it is
unlawful, for any Lender or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Advances or to continue to fund or
maintain Eurodollar Rate Advances hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrower through the Administrative Agent, (i)
each Eurodollar Rate Advance of such Lender will automatically, on the last day
of the then current Interest Period or on such earlier date as may be required
by law, Convert to a Base Rate Advance and (ii) the obligation of such Lender to
make, or to Convert Advances into, or to Continue, Eurodollar Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower that
such Lender has determined that the circumstances causing such suspension no
longer exist; PROVIDED, that, before making any such demand, such Lender agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurodollar Lending Office if
the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would
not, in the sole judgment of such Lender, be otherwise disadvantageous to such
Lender.
Section 2.10. PAYMENTS AND COMPUTATIONS.
(a) The Borrower shall make each payment hereunder and under the
Notes not later than 12:00 Noon (New York City time) on the day when due in U.S.
Dollars to the Administrative Agent at the Administrative Agent's Account in
same day funds and, except as expressly set forth herein, without deduction,
set-off or counterclaim. The Administrative Agent will promptly thereafter cause
to be distributed like funds relating to the payment of principal, interest or
facility fees ratably (other than amounts payable pursuant to Section 2.09(a),
2.09(b), 2.11 or 8.04(c)) to the Lenders for the account of their Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.06(d),
from and after the effective date of such Assignment and Acceptance, the
Administrative Agent shall make all payments hereunder and under the Notes in
respect of the interest assigned thereby to the Lender assignee thereunder, and
the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) If the Administrative Agent receives funds for application to
the obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances to which, or the manner in which, such
funds are to be applied, and the Borrower has not otherwise directed how such
funds are to be applied (which direction is consistent with the terms of the
Loan Documents), the Administrative Agent may, but shall not be obligated to,
elect to distribute such funds to each Lender ratably in accordance with such
Lender's proportionate share of the principal amount of all outstanding
Advances, in repayment or prepayment of such of the outstanding Advances or
other Obligations owed to such Lender as the Administrative Agent shall direct.
(c) The Reference Bank agrees to furnish to the Administrative Agent
timely information for the purpose of determining each Eurodollar Rate.
(d) All computations of interest (other than interest determined
under paragraphs (a) and (b) of the definition of "Base Rate" in Section 1.01)
and commitment fees shall be made by the Administrative Agent on the basis of a
year of 360 days, and all computations of interest under paragraphs (a) or (b)
of the definition of "Base Rate" shall be made by the Administrative Agent on
the basis of a year of 365 or 366 days, in each case for the actual number of
days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable. Each determination by the
Administrative Agent of an interest rate or fee hereunder made in accordance
with the provisions of this Agreement shall be conclusive and binding for all
purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; PROVIDED, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the immediately
preceding Business Day.
(f) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
Section 2.11. TAXES.
(a) Unless otherwise provided in this Section 2.11, any and all
payments by the Borrower hereunder or under the Notes shall be made, in
accordance with Section 2.10, free and clear of and without deduction for any
and all present or future Taxes imposed by the laws and regulations of the
United States or any state or local jurisdiction thereof or therein, EXCLUDING,
in the case of each Lender and the Administrative Agent (each, a "TAX
INDEMNITEE"), (i) net income taxes that are imposed by the United States and
franchise taxes and net income taxes that are imposed on such Tax Indemnitee by
any state or local jurisdiction under the laws of which such Tax Indemnitee is
organized or any political subdivision thereof and, (ii) in the case of such Tax
Indemnitee, net income taxes that are imposed by the United States and franchise
taxes and net income taxes that are imposed on it by the state or local
jurisdiction of such Person's Applicable Lending Office or any political
subdivision thereof (all such non-excluded Taxes being hereinafter referred to
as "INDEMNIFIED TAXES"). If the Borrower shall be required by law to deduct any
Indemnified Taxes from or in respect of any sum payable hereunder or under any
Note to any Tax Indemnitee, (i) subject to Section 2.11(f), the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.11) such Tax Indemnitee receives an amount equal to the sum it
would have received had no such deductions been made ("ADDITIONAL AMOUNTS"),
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant taxation authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies imposed under the laws of the United States or any state or local
jurisdiction thereof or therein, that arise from any payment made by it
hereunder or under the Notes or from the execution, delivery or registration of
this Agreement or the Notes (hereinafter referred to as "OTHER TAXES").
(c) The Borrower will indemnify each Tax Indemnitee for the full
amount of Indemnified Taxes or Other Taxes reasonably and in good faith paid by
such Tax Indemnitee and any penalties and interest arising from the failure of
the Borrower to pay such Indemnified Taxes or Other Taxes. This indemnification
shall be made within 30 days from such date such Tax Indemnitee makes written
demand therefor, which demand shall contain an itemized summary of the amounts
so payable.
(d) Within 30 days after the date of any payment of Indemnified
Taxes, the Borrower will furnish to the Administrative Agent, at its address
referred to in Section 8.02, appropriate evidence of payment thereof. If the
Borrower shall make a payment hereunder or under the Notes through an account or
branch outside the United States, or a payment is made on behalf of the Borrower
by a payor that is not a United States Person, the Borrower will, if no Taxes
are payable in respect of such payment furnish, or will cause such payor to
furnish, to the Administrative Agent, at such address, a certificate from the
appropriate taxing authority or authorities, or an opinion of counsel acceptable
to the Administrative Agent, in either case stating that such payment is exempt
from or not subject to Taxes. For purposes of this subsection (d) and subsection
(e), the terms "UNITED STATES" and "UNITED STATES PERSON" shall have the
meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Tax Indemnitee that is not a United States Person for U.S.
federal income tax purposes shall, on or prior to the date of its execution and
delivery of this Agreement (in the case of each Initial Lender and on the date
of the Assignment and Acceptance pursuant to which it became a Lender (in the
case of each other Lender), and from time to time thereafter if requested in
writing by the Borrower or the Administrative Agent (but only so long as such
Tax Indemnitee remains lawfully able to do so after the date such Person becomes
a party hereto), provide the Administrative Agent and the Borrower with either
(i) Internal Revenue Service form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Tax
Indemnitee is entitled to benefits under an income tax treaty to which the
United States is a party that reduces the rate of withholding tax on payments
under this Agreement and the Notes or certifying that the income receivable
pursuant to this Agreement and the Notes is effectively connected with the
conduct of a trade or business in the United States or (ii) Internal Revenue
Service form W-8, upon which the Borrower is entitled to rely, from a Tax
Indemnitee that has not at the time it becomes a party hereto been named in any
notice issued by the Secretary of the Treasury (or such Secretary's authorized
delegate) pursuant to Sections 881(c)(2)(B) or 871(h)(5) of the Internal Revenue
Code, or any successor form or statement prescribed by the Internal Revenue
Service in order to establish that such Tax Indemnitee is entitled to treat the
interest payments under this Agreement and the Notes as portfolio interest that
is exempt from withholding tax under the Internal Revenue Code, together with a
certificate stating that such Tax Indemnitee is not described in Section
881(c)(3) of the Internal Revenue Code. If the form provided by a Tax Indemnitee
at the time it first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero (or if such Tax Indemnitee
cannot provide at such time such form because it is not entitled to reduced
withholding under a treaty, the payments are not effectively connected income
and the payments do not qualify as portfolio interest), withholding tax at the
rate indicated in such form (or at the then existing U.S. statutory rate if the
Tax Indemnitee cannot provide such a form) shall be excluded from Indemnified
Taxes unless and until such Lender provides the appropriate form certifying that
a zero rate applies; PROVIDED, that, if at the date of the Assignment and
Acceptance pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to the extent such tax results in liability for such payments, the
term Taxes shall include (in addition to withholding taxes that may be imposed
in the future or other amounts otherwise includable in Taxes) United States
interest withholding tax, if any, applicable with respect to the Lender assignee
on such date.
(f) For any period with respect to which a Tax Indemnitee has failed
to provide the Borrower and the Administrative Agent with the appropriate form
described in Section 2.11(e) (OTHER THAN if such failure is due to a change in
law occurring after the date on which a form originally was required to be
provided or if such form otherwise is not required under subsection (e)), such
Lender shall not be entitled to indemnification under subsection (a) or (c) with
respect to Indemnified Taxes impose by the United States or any state or other
political subdivision thereof.
(g) Any Lender claiming any Additional Amounts payable pursuant to
this Section 2.11 shall use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Applicable Lending Office(s) if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the sole judgment of such Lender, be otherwise
disadvantageous to such Lender.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.11 shall survive the payment in full of principal and interest
hereunder and under the Notes.
Section 2.12. SHARING OF PAYMENTS, ETC. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.09(a), 2.09(b), 2.11 or 8.04(c)) in excess of its ratable
share of payments on account of the Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such participations in
the Advances owing to them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them; PROVIDED, that if all or
any portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.12 may exercise all its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation.
ARTICLE III
CONDITIONS OF LENDING
Section 3.01. CONDITIONS PRECEDENT TO INITIAL BORROWING. The
obligation of each Lender to make an Advance on the occasion of the initial
Borrowing is subject to the satisfaction of the following conditions precedent
on or before March 31, 1998:
(a) DOCUMENTS. The Administrative Agent shall have received the
following documents (with, except in the case of the Notes, sufficient
copies for each Lender), each of which shall be satisfactory to the
Administrative Agent in form and substance:
(1) NOTES. The Notes payable to the order of the Lenders.
(2) CORPORATE DOCUMENTS. Certified copies of the charter and
by-laws (or equivalent documents) of the Borrower and of all
corporate authority for the Borrower (including, without limitation,
board of director resolutions and evidence of the incumbency,
including specimen signatures, of officers) with respect to the
execution, delivery and performance of the Loan Documents and each
other document to be delivered by the Borrower from time to time in
connection herewith and the extensions of credit hereunder (and the
Administrative Agent and each Lender may conclusively rely on such
certificate until it receives notice in writing from the Borrower to
the contrary).
(3) OPINION OF COUNSEL. A favorable written opinion of Jones,
Walker, Waechter, Poitevent, Carrere & Xxxxxxx, L.L.P., counsel to
the Borrower, with respect to such matters relating to the Loan
Documents as the Administrative Agent or any Lender may request.
(4) OPINION OF ADMINISTRATIVE AGENT'S COUNSEL. An opinion of
Milbank, Tweed, Xxxxxx & XxXxxx, special New York counsel for the
Administrative Agent, covering such matters relating to this
Agreement and the Notes as the Administrative Agent may require.
(5) PROCEEDS OF BONDS. Evidence (i) of receipt by the Borrower
of at least $95,000,000 net of fees from the public sale of the
Bonds by the Borrower and (ii) that the Borrower and/or one or more
of its Subsidiaries have given irrevocable notice of prepayment of
outstanding accrued Debt thereof described in Part II of Schedule
4.01(m) hereto, in an aggregate amount at least equal to
$95,000,000.
(6) GOVERNMENTAL APPROVALS. Evidence of receipt of all
governmental and third party consents and approvals necessary in
connection with this Agreement and the Notes (without the imposition
of any conditions except those that are acceptable to the Lenders)
and that the same remain in effect.
(b) FEES. The Borrower shall have paid all accrued fees and expenses
of the Lenders and the Administrative Agent (including without limitation
the reasonable and documented fees and expenses of counsel to the
Administrative Agent in connection with this Agreement).
(c) OTHER ITEMS. The Administrative Agent shall have received such
other approvals, opinions and documents relating to this Agreement and the
transactions contemplated hereby as any Lender may, through the
Administrative Agent, reasonably request.
Section 3.02. CONDITIONS PRECEDENT TO EACH BORROWING. The obligation of
each Lender to make an Advance on the occasion of each Borrowing shall be
subject to the further conditions precedent that on the date of such Borrowing
the following statements shall be true (and each of the giving of the applicable
Notice of Borrowing and the acceptance by the Borrower of the proceeds of such
Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing suc statements are true):
(i) the representations and warranties contained in the Loan
Documents are correct on and as of the date of such Borrowing before and
after giving effect to such Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date; and
(ii) no Default has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which the conduct of its
business requires it to so qualify or be licensed and where, in each case,
failure so to qualify and be in good standing could reasonably be expected
to have a Material Adverse Effect and (iii) has all requisite power
(corporate or other) and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed
to be conducted.
(b) Set forth on Schedule 4.01(b) is a complete and accurate list of
all Subsidiaries of the Borrower as of the Closing Date, showing as of
such date (as to each such Subsidiary) the jurisdiction of its
organization and the percentage of the outstanding shares or interests of
each class of capital stock or partnership interests owned (directly or
indirectly) by the Borrower. All of the outstanding capital stock or
partnership interests of all of such Subsidiaries has been validly issued,
is fully paid and non-assessable and, except as otherwise specified on
Schedule 4.01(b), is owned by the Borrower or one or more of its
Subsidiaries free and clear of all Liens except Permitted Liens.
(c) The execution, delivery and performance by the Borrower of each
Loan Document, and the consummation of the other transactions contemplated
hereby, are within the Borrower's powers (corporate or other), have been
duly authorized by all necessary corporate action, and do not (i)
contravene the Borrower's charter or by-laws, (ii) violate any applicable
law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting
the Borrower, any of its Subsidiaries or any of their properties or (iv)
result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of the Borrower or any of its
Subsidiaries.
(d) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the due execution, delivery,
recordation, filing or performance by the Borrower of any Loan Document,
for the consummation of the transactions contemplated thereby or (ii) the
exercise by the Administrative Agent or any Lender of its rights under the
Loan Documents, except for the authorizations, approvals, actions, notices
and filings which have been duly obtained, taken, given or made and are in
full force and effect. No authorization or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for the consummation of the
transactions contemplated thereby, except for the authorizations,
approvals, actions, notices and filings (x) the failure to obtain could
not reasonably be expected to have a Material Adverse Effect or (y which
have been duly obtained, taken, given or made and are in full force and
effect.
(e) This Agreement is, and each of the Notes when delivered will
have been, duly executed and delivered by the Borrower. This Agreement is,
and each of the Notes when delivered hereunder for value will be, the
legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency and other similar laws affecting
creditors generally and by general principles of equity (regardles of
whether enforcement is sought in equity or at law).
(f) The audited consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 1996, and the related consolidated
statements of income or operations and cash flows for the fiscal year
ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly
noted therein; and
(ii) fairly present in all respects the financial condition of
the Borrower and its Subsidiaries as of the date thereof and results
of operations for such year.
Since December 31, 1996, there has been no Material Adverse Change.
(g) Except as set forth on Schedule 4.01(g), as of the Closing Date
there is no action, suit, litigation or proceeding against the Borrower or
any of its Subsidiaries or any of their respective property, including any
action in connection with any Environmental Laws, pending before any
court, governmental agency or arbitrator, or (to the knowledge of the
Borrower) threatened, nor (to the knowledge of the Borrower) is there any
investigation pending in respect of the Borrower, that could reasonably be
expected to have a Material Adverse Effect.
(h) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock and no proceeds of
any Advance will be used to buy or carry any Margin Stock or to extend
credit to others for the purpose of buying or carrying any Margin Stock.
(i) Except to the extent any of the following could not reasonably
be expected to have a Material Adverse Effect, (i) the operations and
properties of the Borrower and each of its Subsidiaries comply in all
material respects with all Environmental Laws, all necessary Environmental
permits have been obtained and are in effect for the operations and
properties of the Borrower and its Subsidiaries, the Borrower and its
Subsidiaries are in compliance in all material respects with all such
Environmental permits, and (ii) to the best of the Borrower's knowledge,
no circumstances exist that could (x) form the basis of an action in
connection with any Environmental Law against the Borrower or any of its
Subsidiaries or (y) cause any such property to be subject to any material
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(j) Except to the extent any of the following could not reasonably
be expected to have a Material Adverse Effect, as of the Closing Date none
of the properties of the Borrower or any of its Subsidiaries is listed or
proposed for listing on the National Priorities List under CERCLA or on
the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the Environmental Protection Agency or
any analogous state list of sites requiring investigation or cleanup
(k) Except to the extent any of the following could not reasonably
be expected to have a Material Adverse Effect, as of the Closing Date
neither the Borrower nor any of its Subsidiaries has been notified in
writing by any federal, state or local governmental agency or any other
Person that the Borrower or any of its Subsidiaries is potentially liable
for the remedial or other costs with respect to treatment, storage,
disposal, release, arrangement for disposal or transportation of any
Hazardous Material generated by the Borrower or any of its Subsidiaries,
except for costs incurred in the ordinary course of business with respect
to treatment, storage, disposal or transportation of such Hazardous
Materials.
(l) Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
Borrower nor any of its Subsidiaries is a "holding company", or an
"affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of
1935, as amended.
(m) Part I of Schedule 4.01(m) is a complete list of all Debt of the
Borrower and its Subsidiaries for or in respect of borrowed money, and any
Material Debt other than for or in respect of borrowed money, as of the
Closing Date or such other date as is set forth therein.
(n) Not more than 25% of the assets of the Borrower which are
subject to Sections 5.02(a) or 5.02(c) consists of Margin Stock.
ARTICLE V
COVENANTS
Section 5.01. AFFIRMATIVE COVENANTS. So long as any principal of or
interest on any Advance or any other amount payable under this Agreement or any
Note shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will, and will cause each of its Subsidiaries to:
(a) COMPLIANCE WITH LAWS, ETC. Comply with all applicable laws,
rules, regulations and orders, including, without limitation, compliance
with ERISA and all Environmental Laws and Environmental permits, except to
the extent that non-compliance with any thereof could not reasonably be
expected to have a Material Adverse Effect.
(b) PAYMENT OF TAXES, ETC. Pay and discharge, before the same shall
become delinquent, (i) all Taxes imposed upon it or upon its property or
assets, (ii) all lawful claims that, if unpaid, might by law become a Lien
upon its property or assets, and (iii) all other material obligations;
PROVIDED, that neither the Borrower nor any of its Subsidiaries shall be
required to pay or discharge any such Tax that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are
being maintained to the extent required by GAAP.
(c) MAINTENANCE OF INSURANCE. Maintain with responsible and
reputable insurance companies or associations, insurance, in such amounts
and covering such risks as is usually carried by companies engaged in
similar businesses.
(d) PRESERVATION OF CORPORATE EXISTENCE, ETC. Subject to Section
5.02(c), preserve and maintain its corporate existence, rights (charter
and statutory) and franchises; PROVIDED, that neither the Borrower nor any
of its Subsidiaries shall be required to preserve any right or franchise
if the Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Borrower or such Subsidiary, as the case may be, and that the loss thereof
could not reasonably be expected to have a Material Adverse Effect.
(e) VISITATION RIGHTS. At any reasonable time during normal business
hours and as may be reasonably requested from time to time (and, so long
as no Event of Default shall have occurred and is continuing, upon
reasonable advance notice), permit the Administrative Agent, and its
designated officers, employees, agents and representatives, to have access
thereto and to make examination thereof at all reasonable times, to make
audits and to inspect and otherwise check its properties, real, personal
and mixed.
(f) KEEPING OF BOOKS. Keep proper books of record and account, in
which full and materially correct entries shall be made of all financial
transactions and the assets and business of the Borrower and each
Subsidiary in accordance with GAAP.
(g) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve, except to
the extent the failure to do so could not reasonably be expected to have a
Material Adverse Effect, all of its properties and assets that are used or
useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted.
(h) TRANSACTIONS WITH AFFILIATES. Conduct all transactions with each
of its Affiliates on terms that are no less favorable to the Borrower than
those that would obtain in a comparable arm's-length transaction with a
Person that is not an Affiliate.
(i) USE OF PROCEEDS. Use the proceeds of the Advances solely for the
general corporate purposes of the Borrower and its Subsidiaries including,
without limitation, the making of Acquisitions; PROVIDED, that none of
such proceeds shall be used to finance a Hostile Acquisition; and
PROVIDED, further, that none of such proceeds shall be used to repurchase
any of the Bonds; and PROVIDED, further, that neither any Lender nor the
Administrative Agent shall have any responsibility for the use of an of
the proceeds of the Advances.
Section 5.02. NEGATIVE COVENANTS. So long as any principal of or interest
on any Advance or any other amount payable under this Agreement or any Note
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will not, and will not permit any of its Subsidiaries to:
(a) LIENS, ETC. Create, assume or suffer to exist any Lien on or in
respect of any of its property, assets or revenues, except Permitted
Liens.
(b) DEBT. Create, incur, assume or suffer to exist any Debt other
than:
(i) Debt hereunder;
(ii) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business;
(iii) Debt outstanding on the date hereof and heretofore
disclosed to the Lenders in writing;
(iv) Debt evidenced by the Bonds, to the extent permitted
hereunder and Debt of any Subsidiary outstanding after giving effect
to the application of the proceeds of the Bonds; and
(v) other Debt in an aggregate principal amount of up to
$60,000,000.
(c) MERGERS, RESTRICTED INVESTMENTS, ETC. Merge with or into or
consolidate with or into, or sell all or substantially all of its assets
to, any Person, except that if at the time of such merger, consolidation
or sale, no Default has occurred and is continuing or would result
therefrom:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (PROVIDED, that the Borrower
shall be the continuing or surviving corporation) or any other
Subsidiary of the Borrower; and
(b) the Borrower may merge or consolidate with any other
Person (PROVIDED, that the Borrower shall be the continuing or
surviving corporation).
(d) CHANGE IN NATURE OF BUSINESS. Make any material change in the
nature of the business of the Borrower and its Subsidiaries as carried on
at the Closing Date.
(e) NO RESTRICTIONS ON UPSTREAMING. Permit any Subsidiary to create,
incur or have outstanding any contractual restriction on the ability of
such Subsidiary to declare or pay any dividend on its capital stock or to
make any loan or advance to or transfer any property to the Borrower,
except for contractual restrictions existing on the date hereof and
heretofore disclosed to the Lenders in writing.
Section 5.03. REPORTING REQUIREMENTS. So long as any principal of or
interest on any Advance or any other amount payable under this Agreement or any
Note shall remain unpaid or any Lender shall have any Commitment hereunder:
(a) DEFAULT NOTICE. The Borrower will furnish to the Administrative
Agent, promptly upon the occurrence of a Default, a statement of a senior
financial officer of the Borrower setting forth details of such Default
and the action that the Borrower has taken and proposes to take with
respect thereto.
(b) QUARTERLY FINANCIALS. As soon as available and in any event
within 60 days after the end of each of the first three quarters of each
fiscal year of the Borrower, the Borrower will furnish to the
Administrative Agent, with sufficient copies for each Lender, a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of such quarter and Consolidated statements of income and cash flows
of the Borrower and its Subsidiaries for the period commencing at the end
of the previous fiscal year and ending with the end of such quarter,
setting forth in each case in comparative form the corresponding figures
for the corresponding period of the preceding fiscal year in reasonable
detail and duly certified (subject to year-end audit adjustments) by a
senior financial officer of the Borrower as having been prepared in
accordance with GAAP, together with (i) a certificate of said officer in
substantially the form of Exhibit D hereto (A) stating that no Default has
occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that the
Borrower has taken and proposes to take with respect thereto and (B)
stating that since the last fiscal quarter, there has been no Material
Adverse Change and (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by the Borrower in
determining compliance with the covenants contained in Section 5.04.
(c) ANNUAL FINANCIALS. As soon as available and in any event within
120 days after the end of each fiscal year of the Borrower, the Borrower
will furnish to the Administrative Agent, with sufficient copies for each
Lender, the Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated statements
of income and cash flows of the Borrower and its Subsidiaries for such
fiscal year, setting forth in each case in comparative form the
corresponding figures for the preceding fiscal year and accompanied by an
unqualified opinion thereon of Xxxxxx Xxxxxxxx LLP or other independent
public accountants of nationally recognized standing, together with (i) a
certificate of a senior financial officer of the Borrower in substantially
the form of Exhibit D hereto (A) stating that no Default has occurred and
is continuing or, if a Default has occurred and is continuing, a statement
as to the nature thereof and the action that the Borrower ha taken and
proposes to take with respect thereto and (B) stating that since the last
fiscal quarter, there has been no Material Adverse Change and (ii) a
schedule in form satisfactory to the Administrative Agent of the
computations used by the Borrower in determining compliance with the
covenants contained in Section 5.04.
(d) LITIGATION. Promptly after the commencement thereof, the
Borrower will furnish to the Administrative Agent notice of any action,
suit, litigation or proceeding of the kind described in Section 4.01(g).
(e) PUBLIC FILINGS. The Borrower shall, promptly upon their becoming
available, deliver to the Administrative Agent and each Lender copies of
any and all registration statements and regular periodic reports that the
Borrower shall have filed with the Securities and Exchange Commission (or
any governmental agency substituted therefor) or any national securities
exchange.
(f) OTHER INFORMATION. The Borrower shall promptly furnish to the
Lenders through the Administrative Agent such other information respecting
the business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may from time to time reasonably
request.
Section 5.04. FINANCIAL COVENANTS. So long as any principal of or interest
on any Advance or any other amount payable under this Agreement or any Note
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) LEVERAGE RATIO. Cause the Leverage Ratio as of the last day of
each fiscal quarter of the Borrower to be not greater than 4.25 to 1.00.
(b) NET WORKING CAPITAL. Cause the current assets of the Borrower
and its Subsidiaries at all times to exceed the current liabilities of the
Borrower and its Subsidiaries (all determined on a Consolidated basis in
accordance with GAAP).
(c) INTEREST COVERAGE RATIO. Cause the Interest Coverage Ratio for
each Rolling Period to be at least equal to 2.50 to 1.00.
(d) NET WORTH. Cause Net Worth to exceed at all times the sum of (i)
$150,000,000 PLUS (ii) an amount equal to 50% of consolidated net income
(if positive) of the Borrower and its Subsidiaries for each fiscal quarter
of the Borrower commencing after September 30, 1997 PLUS (iii) an amount
equal to the net proceeds received by the Borrower from any issuance of
stock of the Borrower after the Closing Date.
ARTICLE VI
EVENTS OF DEFAULT
Section 6.01. EVENTS OF DEFAULT. If any of the following events ("EVENTS
OF DEFAULT") shall occur and be continuing:
(a) the Borrower shall fail to pay when due any principal of or
interest on any Advance or any other amount payable by it under any Loan
Document; or
(b) any representation or warranty made by the Borrower under or in
connection with any Loan Document shall prove to have been incorrect in
any material respect when made; or
(c) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 5.01(i), Section 5.02, or Section 5.03,
or Section 5.04; or
(d) the Borrower shall fail to perform any other term, covenant or
agreement contained in any Loan Document on its part to be performed or
observed if such failure shall remain unremedied for a period of 30 days
after notice thereof from the Administrative Agent or any Lender (through
the Administrative Agent); or
(e) the Borrower or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in
respect of any other Material Debt of the Borrower or such Subsidiary (as
the case may be) when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or
otherwise); or any other event shall occur or condition shall exist under
any agreement or instrument relating to any Material Debt and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of Material
Debt or otherwise to cause, or to permit the holder or holders (or an
agent or trustee on its or their behalf) thereof to cause, such Material
Debt to become due in advance of its scheduled maturity; or
(f) the Borrower or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against the Borrower or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall
remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the
entry of an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or any substantial
part of its property) shall occur; or the Borrower or any of its
Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess of
$2,000,000 shall be rendered against the Borrower or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect, unless such judgment or order shall have been vacated,
satisfied or dismissed or bonded pending appeal; or
(h) a Change in Control shall occur; or
(i) there shall occur a "reportable event" within the meaning of
Section 4043 of ERISA with respect to any Plan of the Borrower or any of
its ERISA Affiliates; any fact or circumstance (including without
limitation an ERISA Event), which results in, or which the Required
Lenders determine in good faith could reasonably be expected to result in,
the termination of any Plan of the Borrower, any of its Subsidiaries or an
ERISA Affiliate by the PBGC or the appointment by an appropriate United
States District Court of a trustee to administer any such Plan, shall
occur and shall continue for 30 days after written notice of such
determination shall have been given to Borrower or any of its Subsidiaries
by the Administrative Agent, or a trustee shall be appointed by the
appropriate United States District Court to administer any Plan of the
Borrower or any of its Subsidiaries, or the PBGC shall institute
proceedings to terminate any Plan of the Borrower or any of its
Subsidiaries or to appoin a trustee to administer any such Plan and, upon
the occurrence of any of the foregoing, the aggregate amount of the
unfunded vested liability for the benefits guaranteed by the PBGC under
all such Plans and the present value of any Withdrawal Liability which
remains unpaid is reasonably estimated to be in excess of $75,000,000 and
such liability is not covered by insurance; or
(j) any Loan Document or any material provision thereof shall be
held to be invalid or unenforceable;
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice
to the Borrower, declare the Advances and the Notes, all interest thereon
and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Advances and the
Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the
Borrower; PROVIDED, that in the event of an actual or deemed entry of an
order for relief with respect to the Borrower under the Federal Bankruptcy
Code, (x) the obligation of each Lender to make Advances shall
automatically be terminated and (y) the Advances and the Notes, all such
interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01. AUTHORIZATION AND ACTION. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents, including,
without limitation, enforcement or collection of the Notes, the Administrative
Agent shall not be required to exercise any discretion or take any action, and
shall not be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) except upon the instructions
of the Required Lenders, and such instructions shall be binding upon all Lenders
and all holders of the Notes; PROVIDED, that the Administrative Agent shall not
be required to take any action that exposes it to persona liability or that is
contrary to this Agreement or applicable law. The Administrative Agent agrees to
give to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
Section 7.02. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative Agent nor any of its 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 the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.06;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by them 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
of them for any statements, warranties or representations made in or in
connection with the Loan Documents; (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 any Loan Document on the part of the Borrower or to inspect the
property (including the books and records) of the Borrower; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of any Loan Document or any
other instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
Section 7.03. CITIBANK AND AFFILIATES. With respect to its Commitments,
the Advances made by it and the Notes issued to it, Citibank shall have the same
rights and powers under the Loan Documents as any other Lender and may exercise
the same as though it were not the Administrative Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include Citibank in
its individual capacity. Citibank and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures for, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries, any of its Affiliates and any Person who may
do business with or own securities of the Borrower or any such Subsidiary or
Affiliate, all as if Citibank were not the Administrative Agent and without any
duty to account therefor to the Lenders.
Section 7.04. LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section 4.01
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
Administrative Agent 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.
Section 7.05. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent (to the extent not promptly reimbursed by the Borrower),
ratably according to the principal amounts of the Notes then held by each of
them (or if no Advances are at the time outstanding, ratably according to the
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against any of them in any way relating to or
arising out of the Loan Documents or any action taken or omitted by any of them
under the Loan Documents; PROVIDED, that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent. Without limitation
of the foregoing, each Lender agrees to reimburse the Administrative Agent
promptly upon demand for its ratable share of any costs and expenses payable by
the Borrower under Section 8.04 of this Agreement to the extent that the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Borrower.
Section 7.06. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint (subject, so long as no Default has occurred and is
continuing, to the consent of the Borrower, which consent shall not be
unreasonably withheld) a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the Administrative Agent, as the case may be, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint (subject, so long as
no Default has occurred and is continuing, to the consent of the Borrower, which
consent shall not be unreasonably withheld) a successor Administrative Agent,
which shall be an Initial Lender or a commercial bank organized under the laws
of the United States or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent such
successor Administrative Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Administrative
Agent, as the case may be, and such retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to the
benefit of the Administrative Agent as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. AMENDMENTS, CONSENTS, ETC. No amendment or waiver of any
provision of this Agreement or the other Loan Documents, nor any consent to any
departure by the Borrower from any provision of this Agreement or the other Loan
Documents, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; PROVIDED, that (i) no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (1) waive any of
the conditions specified in Section 3.01, (2) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Advances, or the
number or percentage of Lenders, that shall be required for the Lenders or any
of them to take any action hereunder, (3) amend this Section 8.01, (4) reduce
the principal of, or interest on, the Notes or any fees or other amounts payable
hereunder or (5) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, and (ii)
no amendment, waiver or consent shall, unless in writing and signed by the
Required Lenders and each Lender that would be adversely affected by such
amendment, waiver or consent, increase the Commitments of such Lender or subject
such Lender to any additional obligations; and PROVIDED, FURTHER, that no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Administrative Agent under this
Agreement or any Note. This Agreement and the other Loan Documents constitute
the entire agreement of the parties with respect to the subject matter hereof
and thereof.
Section 8.02. NOTICES, ETC. All notices and other communications provided
for hereunder shall be in writing (including telecopy communication) and mailed,
telecopied or delivered:
(a) if to the Borrower, at Xxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention Xxxxx X. Xxxxxxx, telephone number (000) 000-0000, telecopier
number (000) 000-0000;
(b) if to any Initial Lender, at its Domestic Lending Office
specified opposite its name on the signature pages hereof;
(c) if to any other Lender, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender;
(d) if to the Administrative Agent, at its address at 0 Xxxxx Xxx,
Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Savas Divan, telephone
number 000-000-0000, telecopier number 000-000-0000; with copies to Xxxxxx
Xxx, telephone number 000-000-0000, telecopier number 000-000-0000;
or, as to each party, at such other address as shall be designated by such
party in a written notice to the other parties. All such notices and
communications shall, when mailed or telecopied, be effective when
deposited in the mails or transmitted by telecopier, respectively, except
that notices and communications to the Administrative Agent pursuant to
Article II or III shall not be effective until received by the
Administrative Agent.
Section 8.03. NO WAIVER; REMEDIES. No failure on the part of any Lender or
the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 8.04. COSTS, EXPENSES AND INDEMNIFICATION.
(a) The Borrower agrees to pay on demand (i) all reasonable
out-of-pocket costs and expenses of the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification
and amendment of the Loan Documents, including, without limitation, the
reasonable and documented fees and expenses of Milbank, Tweed, Xxxxxx &
XxXxxx, special New York counsel to the Administrative Agent, whether or
not any of the transactions contemplated by this Agreement are
consummated, and the fees and expenses of counsel for the Administrative
Agent, with respect to advising the Administrative Agent as to its rights
and responsibilities, or the protection or preservation of rights or
interests, under the Loan Documents, and (ii) all out-of-pocket costs and
expenses of the Administrative Agent and the Lenders in connection with
the enforcement of the Loan Documents, whether in any action, suit or
litigation, any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally or otherwise (including, without
limitation, the reasonable fees and expenses of counsel for the
Administrative Agent and each Lender with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent and each Lender and each of their Affiliates and
their officers, directors, employees, agents, advisors and representatives
(each, an "INDEMNIFIED PARTY") from and against any and all claims,
damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party (other than a claim by a
Lender against another Lender or the Administrative Agent or by the
Administrative Agent against a Lender), in each case arising out of the
entering into and performance of the Loan Documents, the preparation for a
defense of, any investigation, litigation or proceeding arising therefrom
or any of the other transactions contemplated hereby or thereby, in each
case whether or not such investigation, litigation or proceeding is
brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any Indemnified Party is otherwise a party thereto,
except to the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's negligence or
willful misconduct. The Borrower also agrees that the Administrative
Agent, the Lenders, their Affiliates and their respective directors,
officers, employees, attorneys, agents or representatives shall have no
liability on any theory of liability, for special, indirect, consequential
or punitive damages arising out of or otherwise relating to the
transactions contemplated herein or in any other Loan Document or the
actual or proposed use of the proceeds of the Advances.
(c) If for any reason any payment of principal of, or Conversion of,
any Eurodollar Rate Advance is made by the Borrower to or for the account
of a Lender other than on the last day of an Interest Period for such
Advance, the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent
for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that it may incur as a
result of such payment, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such
Lender to fund or maintain such Advance. A certificate of such Lender
setting forth in reasonable detail the amount to which such Lender is then
entitled under this clause (c) shall be conclusive and binding on the
Borrower in the absence of manifest error.
(d) The Borrower agrees to pay to each Lender, so long as such
Lender shall be required under regulations of the Board of Governors of
the Federal Reserve System to maintain reserves with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or the equivalent), additional interest on the unpaid principal amount of
each Eurodollar Rate Advance, from the date of such Eurodollar Rate
Advance until such principal amount is paid in full, at an interest rate
per annum equal at all times to the remainder obtained by subtracting (i)
the Eurodollar Rate for the then current Interest Period for such
Eurodollar Rate Advance from (ii) the rate obtained by dividing such
Eurodollar Rate by a percentage equal to 100% MINUS the Eurodollar Rate
Reserve Percentage for such Interest Period, payable on each date on which
interest is payable on such Eurodollar Rate Advance. A certificate of such
Lender setting forth in reasonable detail the amount to which such Lender
is then entitled under this clause (d) shall be conclusive and binding on
the Borrower in the absence of manifest error.
(e) If the Borrower fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, reasonable fees and expenses of counsel and indemnities, such
amount may be paid on behalf of the Borrower by the Administrative Agent
or any Lender, in its sole discretion.
Section 8.05. GOVERNING LAW; SUBMISSION TO JURISDICTION. This
Agreement and the Notes shall be governed by, and construed in accordance with,
the law of the State of New York. The Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York state court sitting in New York County
for the purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby, and hereby irrevocably
appoints CT Corporation System having offices on the date hereof at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its true and lawful attorney-in-fact in
its name, place and stead to accept such service of process. The Borrower
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
Section 8.06. ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign to one or more banks or other entities
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and the Note or Notes held by it); PROVIDED, that:
(i) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all
of a Lender's rights and obligations under this Agreement, the amount of
the Commitment of the assigning Lender being assigned pursuant to each
such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
the lesser of (x) such Lender's Commitments hereunder and (y) $5,000,000
or an integral multiple of $1,000,000 in excess thereof (except as
otherwise agreed by the Borrower and the Administrative Agent),
(ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender, each such assignment
shall be made only upon the prior written approval of the Administrative
Agent and (unless an Event of Default has occurred and is continuing) the
Borrower, such approvals not to be unreasonably withheld or delayed,
(iii) each such assignment shall be to an Eligible Assignee,
(iv) each such assignment by a Lender of its Advances, Commitment or
Note shall be made in such manner so that the same portion of its
Advances, Commitment and Note is assigned to the respective assignee, and
(v) the parties to each such assignment shall execute and deliver to
the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes
subject to such assignment and a processing and recordation fee of $3,000.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such assigning Lender, 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; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; (vii) such assignee agrees to comply with its obligations
under Section 2.11(e); and (viii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at its address referred to in Section 8.02 a copy
of each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Advances owing to, each Lender from time to time
(the "REGISTER"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Administrative
Agent and the Lenders shall treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. No assignment
shall be effective until it is recorded in the Register pursuant to this Section
8.06(c). The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form prescribed
herein, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. Within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note or Notes to the
order of such assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment, a new Note or Notes to the order of the assigning Lender
in an amount equal to the portion so retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A.
(e) Each Lender may sell participations in or to all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Advances owing to it and the Note or
Notes held by it); PROVIDED, that (i) such Lender's obligations under this
Agreement (including, without limitation, its Commitment) shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by the Borrower
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation,
postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.06, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; PROVIDED, that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree in
writing to preserve the confidentiality of any confidential information received
by it from such Lender in form and substance reasonably satisfactory to the
Borrower.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A.
(h) Anything in this Section 8.06 to the contrary notwithstanding,
neither the Borrower nor any of its Subsidiaries or Affiliates may acquire
(whether by assignment, participation or otherwise), and no Lender shall assign
or participate to the Borrower or any of its Subsidiaries or Affiliates, any
interest in any Commitment, Advance or other amount owing hereunder without the
prior consent of each Lender.
Section 8.07. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
Section 8.08. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE ADVANCES OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 8.09. SURVIVAL. The obligations of the Borrower under
Sections 2.09, 2.11 and 8.04, and the obligations of the Lenders under Section
7.05, shall survive the repayment of the Advances and the termination of the
Commitments. In addition, each representation and warranty made, or deemed to be
made by a notice of any extension of credit, herein or pursuant hereto shall
survive the making of such representation and warranty, and no Lender shall be
deemed to have waived, by reason of making any extension of credit hereunder,
any Default that may arise by reason of such representation or warranty proving
to have been false or misleading, notwithstanding that such Lender or the
Administrative Agent may have had notice or knowledge or reason to believe that
such representation or warranty was false or misleading at the time such
extension of credit was made.
Section 8.10. CAPTIONS. The table of contents and captions and
section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
Section 8.11. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, PROVIDED, that the Borrower may not assign any
of its rights or obligations hereunder or under the other Loan Documents without
the prior consent of all of the Lenders and the Administrative Agent.
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 above written.
BORROWER
INTERNATIONAL SHIPHOLDING CORPORATION
By
Title:
ADMINISTRATIVE AGENT
CITIBANK, N.A., as
Administrative Agent
By
Title:
LENDERS
COMMITMENT
$25,000,000 CITIBANK, N.A.
By
Title:
Domestic Lending Office:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Eurodollar Lending Office:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
SCHEDULE 4.01(b)
SUBSIDIARIES
See attached.
SCHEDULE 4.01(g)
LITIGATION
None.
SCHEDULE 4.01(m)
EXISTING DEBT
PART I
See attached.
PART II
See attached.
EXHIBIT A
FORM OF NOTE
U.S.$________________ Dated: ___________, _____
FOR VALUE RECEIVED, the undersigned, INTERNATIONAL SHIPHOLDING
CORPORATION, a Delaware corporation (the "BORROWER"), HEREBY PROMISES TO PAY to
the order of _________________________ (the "LENDER") for the account of its
Applicable Lending Office (as defined in the Credit Agreement referred to below)
on the Commitment Termination Date (as so defined) the aggregate principal
amount of ________________ U.S. DOLLARS or, if less, the aggregate principal
amount of the Advances (as defined in the Credit Agreement referred to below)
owing to the Lender by the Borrower pursuant to the Credit Agreement on the
Commitment Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, for the
account of the Lender at the office of Citibank, N.A. at Account No. 00000000 in
same day funds. Each Advance made by the Lender to the Borrower and the maturity
thereof, and all payments made on account of principal thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Note; PROVIDED, that the failure of the
Lender to make any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, the $25,000,000 Credit Agreement dated as of January 22, 1998 (said
Agreement, as amended, supplemented or otherwise modified from time to time,
being the "CREDIT AGREEMENT"), among the Borrower, the Lender and certain other
lenders parties thereto, and Citibank, N.A., in its capacity as Administrative
Agent.
The Borrower hereby waives presentment, demand, protest and notice
of any kind. No failure to exercise, and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Note shall be governed by, and construed in accordance with,
the law of the State of New York.
INTERNATIONAL SHIPHOLDING CORPORATION
By________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
AMOUNT OF
AMOUNT PRINCIPAL UNPAID
AND TYPE OF PAID OR PRINCIPAL NOTATION
DATE ADVANCE PREPAID BALANCE MADE BY
EXHIBIT B
FORM OF NOTICE OF BORROWING
Citibank, N.A., as
Administrative Agent
for the Lenders party
to the Credit Agreement
referred to below
0 Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
Attention:
Telephone:
Telecopy:
Ladies and Gentlemen:
The undersigned, International Shipholding Corporation, refers to
the $25,000,000 Credit Agreement dated as of January 22, 1998 (said agreement,
as amended, supplemented or otherwise modified from time to time, being the
"CREDIT AGREEMENT"), among the undersigned, as Borrower, certain Lenders party
thereto, and Citibank, N.A., in its capacity as Administrative Agent. The terms
defined in the Credit Agreement are used herein as defined therein.
The undersigned hereby requests a Borrowing under the Credit
Agreement (the "PROPOSED BORROWING"), as follows:
(1) The Business Day of the Proposed Borrowing is ___________ __,
_____.
(2) The Proposed Borrowing is to be comprised of [Base Rate
Advances] [Eurodollar Rate Advances].
(3) The aggregate amount of the Proposed Borrowing is $___________.
[(4) The initial Interest Period for each Advance made as part of
the Proposed Borrowing is ______ month[s]].
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties contained in the Loan
Documents are correct, before and after giving effect to the Proposed Borrowing
and to the application of the proceeds therefrom, as though made on and as of
such date; and
(B) no Default has occurred and is continuing, or would result from
the Proposed Borrowing or from the application of the proceeds therefrom.
Very truly yours,
INTERNATIONAL SHIPHOLDING CORPORATION
By___________________________
Title:
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the $25,000,000 Credit Agreement dated as of
January 22, 1998 (said agreement, as amended, supplemented or otherwise modified
from time to time, being the "CREDIT AGREEMENT"), among International
Shipholding Corporation, a Delaware corporation (the "BORROWER"), Citibank,
N.A., in its capacity as administrative agent (in such capacity, the
"ADMINISTRATIVE AGENT"), and certain Lenders party thereto. Terms defined in the
Credit Agreement are used herein with the same meaning
_________________ (the "ASSIGNOR") and _______________ (the
"ASSIGNEE") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
the Assignor's rights and obligations under the Credit Agreement as of the date
hereof, without recourse, equal to the percentage interest specified on Schedule
1. After giving effect to such sale and assignment, the Assignee's Commitment
and the amount of the Advances owing to the Assignee will be as set forth in
Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
(iv) certifies that as of the date hereof there are no taxes or increased costs
payable under Sections 2.09 and 2.11 of the Credit Agreement, respectively, with
respect to its interest being assigned by it hereunder [except as disclosed on
Schedule 1 hereto]; and (v) attaches the Note(s) payable to its order and
requests that the Administrative Agent exchange such Note(s) for new Notes
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and to the order of the Assignor in an
amount equal to the Commitment retained by the Assignor under the Credit
Agreement, respectively, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor 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 the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender; (vi) specifies
as its address for its Domestic Lending Office and Eurodollar Lending Office the
offices set forth beneath its name on the signature pages hereof; (vii) attaches
any U.S. Internal Revenue Service forms required under Section 2.11 of the
Credit Agreement; and (viii) certifies that as of the Effective Date there are
no taxes or increased costs payable under Sections 2.09 or 2.11 of the Credit
Agreement [except as disclosed on Schedule 1 hereto, which taxes or increased
costs do not increase the amount of taxes or increased costs payable under said
Sections 2.09 or 2.11, respectively].
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date for this Assignment and Acceptance
(the "EFFECTIVE DATE") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1.
5. Upon such acceptance and recording by the Administrative Agent,
as of the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of, and be deemed for all purposes under the Credit
Agreement to be, a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Administrative Agent,
from and after the Effective Date, the Administrative Agent shall make all
payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest, facility fees and letter of credit fees and commissions with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the law of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and both of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Agreement and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage of Commitment being
assigned: _____________%
Assignee's Commitment: $_____________
Aggregate outstanding principal
amount of Advances assigned: $_____________
Principal amount of Note
payable to Assignee: $_____________
Principal amount of Note
payable to Assignor: $_____________
[Amount of Taxes or Increased
Costs of Assignor:] $_____________
[Amount of Taxes or Increased
Costs of Assignee:] $_____________
Effective Date (if other than
date of acceptance by the
Administrative Agent): ______, _____
[NAME OF ASSIGNOR], as Assignor
By:___________________________
Title:
Dated: __________, ____
[NAME OF ASSIGNEE], as Assignee
By:____________________________
Title:
Domestic Lending Office:
===================================
===================================
Eurodollar Lending Office:
===================================
===================================
Accepted this ____ day
of __________, _____
CITIBANK, N.A.,
as Administrative Agent
By:_______________________
Title:
Consented to:
INTERNATIONAL SHIPHOLDING CORPORATION
By:_______________________
Title:
--------
This date should be no earlier than five Business Days after delivery of
this Assignment and Acceptance to the Administrative Agent.
EXHIBIT D
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
I, , the [senior financial officer] of INTERNATIONAL SHIPHOLDING
CORPORATION, hereby certify that:
1. I am the duly appointed [senior financial officer] of
International Shipholding Corporation, and as such I am providing this
Certificate for and on behalf of the Borrower pursuant to the Credit Agreement
dated as of January 22, 1998 between the Borrower, the lenders referred to
therein, and Citibank, N.A. as Administrative Agent (the "CREDIT AGREEMENT").
2. I am familiar with and have examined the provisions of the Credit
Agreement including, without limitation, those of Articles IV, V and VI therein.
3. No Default has occurred and is continuing as at the date hereof.
4. As of or for the relevant period ending , , the amounts and
financial ratios as contained in Sections 5.04(a) and 5.04(b) of the Credit
Agreement are as follows and detailed calculations thereof are attached hereto:
REQUIRED AMOUNT
ACTUAL AMOUNT OR LIMIT
(a) Leverage Ratio :1 :1
(b) Net Working Capital :1 :1
(c) Interest Coverage
Ratio :1 :1
(d) Net Worth
5. Since the end of the last fiscal quarter, there has been no
Material Adverse Change.
6. Unless the context otherwise requires, capitalized terms in the
Credit Agreement which appear herein without definitions shall have the meanings
ascribed thereto in the Credit Agreement.
DATED this day of , .
(Signature)
(Name - please print)
(Title of Senior Financial Officer)