EXHIBIT 10.34
______________________________________________________________________________
______________________________________________________________________________
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Effective December 31, 1996
BY AND AMONG
HALTER MARINE GROUP, INC.
as Borrower,
THE BANKS NAMED HEREIN,
as Banks,
and
WHITNEY NATIONAL BANK,
as Agent
______________________________________________________________________________
______________________________________________________________________________
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this "Agreement") is
effective the 31st day of December, 1996, and is made and entered into by and
among HALTER MARINE GROUP, INC., a Delaware corporation ("Borrower") and the
undersigned Banks, including Whitney National Bank in its capacity as a Bank
hereunder and as Agent for the Banks under this Agreement.
WITNESSETH:
WHEREAS, the Borrower, Whitney, First National Bank of Commerce, Hibernia
National Bank, NBD Bank and The Bank of Nova Scotia entered into a Revolving
Credit Agreement, effective as of September 30, 1996, which provided for
revolving loans to the Borrower in an aggregate principal amount not to exceed
the Revolving Credit Commitment of One Hundred Five Million Dollars
($105,000,000.00), a swing line from Whitney in an aggregate principal amount
not to exceed Five Million Dollars ($5,000,000.00) as part of the Revolving
Credit Commitment, and the issuance of letters of credit for the account of the
Borrower and its Subsidiaries from time to time during the Letter of Credit
Period in an amount not to exceed at any one time outstanding the aggregate
amount of Sixty Million Dollars ($60,000,000.00) as part of the Revolving Credit
Commitment;
WHEREAS, the Revolving Credit Agreement was amended by that certain First
Amendment to Revolving Credit Agreement by and among the Borrower, Whitney,
First National Bank of Commerce, Hibernia National Bank, NBD Bank and The Bank
of Nova Scotia effective as of September 30, 1996 and by that certain Second
Amendment to Revolving Credit Agreement by and among Borrower, Whitney, First
National Bank of Commerce, Hibernia National Bank, NBD Bank and The Bank of Nova
Scotia effective as of October 1, 1996 (collectively, the "Original Credit
Agreement"); and
WHEREAS, the parties desire to amend and restate the Original Credit
Agreement to provide for additional Banks and to increase the Revolving Credit
Commitment to the principal amount of One Hundred Thirty Five Million Dollars
($135,000,000.00).
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby mutually promise and agree as follows:
SECTION l. TERM.
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The "Term" of this Agreement shall commence on the effective date hereof
and shall end on September 30, 1999, unless extended from time to time with the
unanimous
consent of the Banks as provided in Section 3.6 hereof and unless earlier
terminated pursuant to the terms hereof.
SECTION 2. DEFINITIONS.
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2.1 Definitions. In addition to the terms defined elsewhere in this
Agreement or in any Exhibit or Schedule hereto, when used in this Agreement, the
following terms shall have the following meanings (such meanings shall be
equally applicable to the singular and plural forms of the terms used, as the
context requires):
Acquisition shall mean the purchase, merger with or other acquisition by
Borrower or any Subsidiary of (i) the stock or other equity interest (in whole
or in part) in any entity, which, after such Acquisition will be a Subsidiary,
(ii) all or substantially all of the assets of any such entity, or (iii) a
shipyard, ship building facility or any other facility consistent with the
Company Business.
Acquisition Indebtedness shall mean, without duplication, any Indebtedness,
other than the Loans, issued, incurred or provided by the Borrower or any
Subsidiary for Acquisitions.
Affiliate shall mean any Person (a) which directly or indirectly through
one or more intermediaries controls, is controlled by or is under common control
of or with Borrower or any Subsidiary, (b) which beneficially owns or holds or
has the power to direct the voting power of twenty percent (20%) or more of any
class of capital stock of Borrower or any Subsidiary, (c) which has twenty
percent (20%) or more of any class of its capital stock (or, in the case of a
Person which is not a corporation, twenty percent (20%) or more of its equity
interest) beneficially owned or held, directly or indirectly, by Borrower or any
Subsidiary, or (d) who is a director, officer or employee of Borrower or any
Subsidiary. For purposes of this definition, "control" shall mean the power to
direct the management and policies of a Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise.
Agent shall mean Whitney National Bank in its capacity as agent for the
Banks hereunder and its successors in such capacity.
Applicable Margin shall mean, the rate of interest per annum shown in the
applicable column below:
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Level I Level II Level III Level IV
-------- --------- ---------- --------
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If Ratio of Average Consolidated greater than or equal to 2.0 less than 2.0 less than 1.5 less than 1.0
Total Debt to Consolidated greater than 1.5 greater than 1.0
EBITDA is or equal to or equal to
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Applicable Margin 1.25% 1.00% .750% .625%
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Provided Trinity maintains ownership of over 50% of the outstanding common stock
of Borrower, the Applicable Margins for Level I, II, and III will be reduced by
.250% from the effective date hereof until April 1, 1997 (the "Trinity
Discount") and (ii) from the effective date of this Agreement until April 1,
1997, the Applicable Margin shall be the Applicable Margin for Level II (subject
to any Trinity Discount). The Applicable Margin shall be adjusted on the first
day of each March, June, September and December (or, if such day is not a
Business Day, on the next succeeding Business Day), based on the ratio of
Average Consolidated Total Debt for the immediately preceding fiscal quarter to
Consolidated EBITDA for the immediately preceding four (4) fiscal quarters. If
Borrower should fail to deliver in a timely manner a certificate required under
Section 8.1(a)(vi) hereof, then, until Borrower shall have provided such
certificate, it shall be presumed that the ratio of Average Consolidated Total
Debt for the immediately preceding fiscal quarter to Consolidated EBITDA for the
immediately preceding four (4) fiscal quarters was greater than 2.0 (and, from
the date of the delivery of such certificate, the Applicable Margin shall be
determined by reference to such certificate).
Assignment Agreement shall mean any of those certain Assignment Agreements
described in Section 11.15 herein.
Assumed Trinity Indebtedness shall mean $25,000,000.00 of indebtedness of
Trinity assumed by Xxxxxxxx.
Average Consolidated Total Debt shall mean, for each fiscal quarter, the
sum of the Consolidated Total Debt as of the end of each day during such quarter
divided by 90.
Bank(s) shall mean each bank listed on the signature pages hereof, and its
successors and assigns.
Base Rate shall mean the interest rate per annum, determined on any day,
equal to the greater of: (i) the Prime Rate then in effect or (ii) the sum of
the Fed Funds Rate then in effect plus One-Half of One Percent (.50%).
Base Rate Loan shall mean any Loan bearing interest at the Base Rate.
Borrower's Obligations shall mean, without duplication, any and all
present and future indebtedness (including, without limitation, principal,
interest, fees, collection costs and expenses, attorneys' fees and other
amounts), liabilities and obligations (including, without limitation,
reimbursement obligations with respect to Letters of Credit issued by any one or
more Banks under this Agreement for the account of Borrower or any Subsidiary)
of Borrower to the Agent and/or any one or more of the Banks evidenced by or
arising under this Agreement, the Notes, the Letter of Credit Application(s),
and/or any of the other Transaction Documents.
Business Day shall mean (a) any day except a Saturday, Sunday or legal
holiday observed by the Agent or by commercial banks in New Orleans, Louisiana;
and (b) relative to the making, continuing, prepaying or repaying of any LIBOR
Loans, any day on which dealings in U.S. Dollars are carried on in the London
interbank market.
Capital Expenditure shall mean any expenditure which, as determined in
accordance with GAAP, is required to be capitalized on the balance sheet of the
Person making the same, but excluding (i) expenditures for the restoration or
replacement of fixed assets to the extent funded out of the proceeds of an
insurance policy and (ii) Acquisitions.
Capitalized Lease shall mean any lease of Property, whether real and/or
personal, by a Person as lessee which as determined in accordance with GAAP is
required to be capitalized on the balance sheet of such Person.
Capitalized Lease Obligations of any Person shall mean, as of the date of
any determination thereof, the amount at which the aggregate rental obligations
due and to become due under all Capitalized Leases under which such Person is a
lessee would be reflected as a liability on a balance sheet of such Person as
determined in accordance with GAAP.
CERCLA shall mean the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. (S)(S)9601 et seq., and as the same may
from time to time be further amended, and shall include any and all regulations
issued pursuant thereto.
Change in Control shall mean the existence at any time of the board of
directors of Borrower (the "Board of Directors") which does not contain (i) Xxxx
Xxxx XXX or (ii) either (A) a majority of the voting members nominated by
Xxxxxxx, (B) such other members of the Board of Directors nominated by Xxxx Xxxx
XXX who together with Xxxx Xxxx XXX constitute a majority of the voting members,
or (C) any combination thereof.
Code shall mean the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, together with the regulations thereunder,
in each case as in effect from time to time. References to sections of the Code
shall be construed to also refer to any successor sections.
Commitment shall mean, with respect to each Bank, the sum of such Bank's
Revolving Credit Commitment, and its Swing Line Commitment, if any.
Company Business shall mean the (i) construction, repair and conversion
of ocean-going and inland vessels (other than inland xxxxxx barges and inland
tank barges and the construction of accessories for such barges, except for such
barge construction and related work as allowed under the non-competition
covenants of the Separation and
Related Agreements) (ii) the production of any component of or accessory to any
such ocean-going or inland vessel, (iii) any other similar type of production,
construction or manufacturing, (iv) any financing related to the sale of any of
the Borrower's or any Subsidiary's products, and (v) any other activities
ancillary to the foregoing.
Consolidated Current Assets shall mean, as of any date for which it is
being determined, all amounts which would, as determined in conformity with
GAAP, be included under current assets on a consolidated balance sheet of
Borrower and its Subsidiaries as at such date.
Consolidated Current Liabilities shall mean, as of any date for which it
is being determined, all amounts which would, as determined in conformity with
GAAP, be included under current liabilities on a consolidated balance sheet of
Borrower and its Subsidiaries as at such date.
Consolidated Debt Service Coverage Ratio shall mean, for any period, the
ratio of (a) Consolidated EBITDA minus Capital Expenditures of Borrower or any
Subsidiary during such period minus all federal, state, local and/or foreign
income taxes paid by Borrower or any Subsidiary payable with respect of such
period, to (b) Consolidated Interest Expense plus Consolidated Scheduled
Principal Payments plus the principal portion of Capitalized Lease Obligations
payable by Borrower or any Subsidiary in respect of such period.
Consolidated EBIT shall mean, for the period in question, the sum of (a)
Consolidated Net Income during such period plus (b) to the extent deducted in
determining Consolidated Net Income, the sum of (i) Consolidated Interest
Expense during such period, plus (ii) all provisions for any federal, state,
local and/or foreign income taxes made by Borrower or any Subsidiary during such
period (whether paid or deferred), all determined on a consolidated basis as
determined in accordance with GAAP.
Consolidated EBITDA shall mean, for any period, the sum of the following:
(a) Consolidated Net Income during such period plus (b) to the extent deducted
in determining Consolidated Net Income, the sum of (i) Consolidated Interest
Expense during such period, plus (ii) all provisions for any federal, state,
local and/or foreign income taxes made by Borrower or any Subsidiary during such
period (whether paid or deferred) plus (iii) all depreciation and amortization
expenses and all other non-cash items of Borrower or any Subsidiary during such
period, all determined on a consolidated basis as determined in accordance with
GAAP.
Consolidated Funded Debt shall mean, as of any date of determination
thereof, (a) all Indebtedness of Borrower or any Subsidiary, other than
Borrower's Obligations, which matures in not less than twelve months from the
date of incurrence, whether or not represented by bonds, debentures, notes or
other securities, for the repayment of money borrowed or for the payment of the
purchase price of property or assets purchased, (b) all
Borrower's Obligations, (c) all Indebtedness of Borrower or any Subsidiary,
which matures in not less than twelve months from the date of incurrence,
secured by any mortgage, pledge, security interest or lien existing on property
owned by Borrower or any Subsidiary, whether or not the Indebtedness secured
thereby shall have been assumed by the owner thereof, (d) all Capitalized Lease
Obligations of Borrower or any Subsidiary, and (e) all obligations of Borrower
or any Subsidiary, contingent or otherwise, relative to the face amount of all
letters of credit (as may be reduced pursuant to their terms), whether or not
drawn.
Consolidated Interest Coverage Ratio shall mean, as of any date for which
it is being determined, the ratio of Consolidated EBIT to Consolidated Interest
Expense.
Consolidated Interest Expense shall mean, for the period in question,
without duplication, all gross interest expense of Borrower and its Subsidiaries
(including, without limitation, all commissions, discounts and/or related
amortization and other fees and charges owed by Borrower and its Subsidiaries
with respect to letters of credit and bankers' acceptance financing, the net
costs associated with interest swap obligations of Borrower and its
Subsidiaries, capitalized interest expense, the interest portion of Capitalized
Lease Obligations and the interest portion of any deferred payment obligation)
during such period, all determined on a consolidated basis as determined in
accordance with GAAP.
Consolidated Net Income and Consolidated Net Loss shall mean, for the
period in question, the after-tax net income or loss of Borrower and its
Subsidiaries during such period, determined on a consolidated basis as
determined in accordance with GAAP, but excluding in any event the following:
(i) any net gain or net loss (net of expenses and taxes applicable
thereto) for such period resulting from the sale, transfer or other disposition
of fixed or capital assets as determined by GAAP;
(ii) any gains or losses resulting from any reappraisal, revaluation
or write-up or write-down of assets;
(iii) any equity of Borrower or any Subsidiary in the undistributed
earnings of any corporation which is not a Subsidiary and is not accounted for
on the equity method as determined in accordance with GAAP;
(iv) undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or other distributions by such Subsidiary is
not at the time permitted by the terms of its charter documents or any
agreement, document, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary;
(v) gains or losses from the acquisition or disposition of
Investments;
(vi) gains from the retirement or extinguishment of Debt;
(vii) gains on collections from insurance policies or settlements (net
of premiums paid or other expenses incurred with respect to such gains during
the fiscal period in which the gain occurs, to the extent such premiums or other
expenses are not already reflected in Consolidated Net Income for such fiscal
period); and
(viii) any gains or losses during such period from any change in
accounting principles, from any discontinued operations or the disposition
thereof or from any prior period adjustments; and
(ix) any extraordinary gains and/or losses;
all determined in accordance with GAAP. If the preceding calculation results in
a number less than zero such amount shall be considered a Consolidated Net Loss.
Consolidated Scheduled Principal Payments shall mean, for the period in
question, without duplication, all scheduled principal payments of Borrower and
its Subsidiaries on Indebtedness for the applicable period, all determined on a
consolidated basis as determined in accordance with GAAP.
Consolidated Tangible Net Worth shall mean at a particular date, the
excess, if any, of (a) all amounts which would be included under shareholders'
equity on a consolidated balance sheet of the Borrower determined in accordance
with GAAP (including, without limitation, capital stock, additional paid-in-
capital and retained earnings) at such date minus (b) all assets of Borrower,
determined on a consolidated basis at such date, that would be classified as
intangible assets in accordance with GAAP, but in any event including, without
limitation, the following intangible assets: unamortized organization and
reorganization expense, patents, trade or service marks, franchises, trade names
and goodwill.
Consolidated Total Debt shall mean, as of the date of any determination
thereof, all Debt of Borrower and its Subsidiaries as of such date, determined
on a consolidated basis as determined in accordance with GAAP.
Consolidation Transactions shall mean (i) the transfer to Borrower of the
stock of each subsidiary of Trinity that has assets and liabilities related to
the Company Business, including without limitation, the stock of the
Subsidiaries listed on Schedule 7.8 attached hereto, (ii) the transfer to
Subsidiaries of Borrower of certain assets and liabilities of Trinity related to
the Company Business, including without limitation the shipyards and other
property listed on Schedule 7.12 attached hereto, and all related real estate,
leases, equipment, inventory and receivables, and (iii) the assumption by
Borrower of the Assumed Trinity Indebtedness.
Continuing Guarantee shall mean the unlimited continuing guarantee of all
of Borrower's Obligations executed now or at any time hereafter by each
Subsidiary other than Offshore and delivered to Agent, in the form of Exhibit C
attached hereto and incorporated herein by reference.
Default shall mean any event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default as defined in Section 9 hereof.
Debt of any Person shall mean, as of the date of determination thereof, the
sum of (a) all Indebtedness of such Person for borrowed money or which has been
incurred to acquire Property plus (b) all Capitalized Lease Obligations of such
Person.
Disbursement Date shall have the meaning ascribed thereto in Section 4.3.
Distribution in respect of any corporation shall mean:
(a) dividends or other distributions of cash, stock, assets or other
property on or in respect of any shares of any class of stock of such
corporation; and
(b) the redemption, repurchase or other acquisition of any shares of
any class of any stock of such corporation or of any warrants, rights or other
options to purchase any such stock (except when solely in exchange for such
stock).
Environmental Claim shall mean any administrative, regulatory or judicial
action, judgment, order, consent decree, suit, demand, demand letter, claim,
Lien, notice of noncompliance or violation, investigation or other proceeding
arising (a) pursuant to any Environmental Law or governmental or regulatory
approval issued under any such Environmental Law, (b) from the presence, use,
generation, storage, treatment, Release, threatened Release, disposal,
remediation or other existence of any Hazardous Substance, (c) from any removal,
remedial, corrective or other response action pursuant to an Environmental Law
or the order of any Governmental Authority, (d) from any third party seeking
damages, contribution, indemnification, cost recovery, compensation, injunctive
or other relief in connection with a Hazardous Substance or arising from alleged
injury or threat of injury to health, safety, natural resources or the
environment or (e) from any Lien against any Property owned, leased or operated
by Borrower or any Subsidiary in favor of any governmental or regulatory
authority or agency in connection with a Release, threatened Release or disposal
of a Hazardous Substance.
Environmental Law shall mean any federal, state or local statute, law,
rule, regulation, order, consent decree, judgment, permit, license, code, deed
restriction, common law, treaty, convention, ordinance or other governmental
requirement relating to public health, safety or the environment, including,
without limitation, those relating to Releases, discharges or emissions to air,
water, land or groundwater, to the use of groundwater, to the use and handling
of polychlorinated biphenyls or asbestos, to the disposal, treatment, storage or
management of hazardous or solid waste, Hazardous
Substances or crude oil, or any fraction thereof, to exposure to toxic or
hazardous materials, to the handling, transportation, discharge or release of
gaseous or liquid Hazardous Substances, in each case applicable to any of the
Property owned, leased or operated by Borrower or any Subsidiary or the
operation, construction or modification of any such Property, including, without
limitation, the following: CERCLA, the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid
Waste Amendments of 1984, the Hazardous Materials Transportation Act, as
amended, the Federal Water Pollution Control Act, as amended by the Clean Water
Act of 1976, the Safe Drinking Water Control Act, the Clean Air Act of 1966, as
amended, the Toxic Substances Control Act of 1976, the Occupational Safety and
Health Act of 1977, as amended, the Emergency Planning and Community Right-to-
Know Act of 1986, the National Environmental Policy Act of 1975, the Oil
Pollution Act of 1990 and any similar or implementing state or local law, and
any state or local statute and any further amendments to these laws providing
for financial responsibility for cleanup or other actions with respect to the
Release or threatened Release of Hazardous Substances or crude oil, or any
fraction thereof and all rules and regulations promulgated thereunder.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA shall be construed to also refer to any successor sections.
ERISA Affiliate shall mean any corporation, trade or business that is,
along with Borrower and any Subsidiary, a member of a controlled group of
corporations or a controlled group of trades or businesses, as described in
Sections 414(b) and 414(c), respectively, of the Code or Section 4001 of ERISA.
Event of Default shall have the meaning ascribed thereto in Section 9.
Fed Funds Rate shall mean, for any day, the rate per annum (rounded
upwards, if necessary to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate charged to the
Agent on such day on such transactions.
GAAP shall mean generally accepted accounting principles at the time in the
United States.
Governmental Authority shall mean any sovereign state or nation or
government, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
Governmental Contract shall have the meaning ascribed thereto in Section
7.20.
Guarantee by any Person shall mean any obligation (other than endorsements
of negotiable instruments for deposit or collection in the ordinary course of
business), contingent or otherwise, of such Person guaranteeing, or in effect
guaranteeing, any Indebtedness, liability, dividend or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, all obligations incurred through an
agreement, contingent or otherwise, by such Person: (a) to purchase such
Indebtedness or obligation or any Property or assets constituting security
therefor, (b) to advance or supply funds (i) for the purchase or payment of such
Indebtedness or obligation, (ii) to maintain working capital or other balance
sheet condition or otherwise to advance or make available funds for the purchase
or payment of such Indebtedness or obligation, (iii) to lease property or to
purchase securities or other property or services primarily for the purpose of
assuring the owner of such Indebtedness or obligation of the ability of the
primary obligor to make payment of the Indebtedness or obligation or (iv)
otherwise to assure the owner of the Indebtedness or obligation of the primary
obligor against loss in respect thereof. For the purposes of all computations
made under this Agreement, a Guarantee in respect of any Indebtedness for
borrowed money shall be deemed to be Indebtedness equal to the then outstanding
principal amount of such Indebtedness for borrowed money which has been
guaranteed or such lesser amount to which the maximum exposure of the guarantor
shall have been specifically limited, and a Guarantee in respect of any other
obligation or liability or any dividend shall be deemed to be Indebtedness equal
to the maximum aggregate amount of such obligation, liability or dividend or
such lesser amount to which the maximum exposure of the guarantor shall have
been specifically limited. Guarantee when used as a verb shall have a
correlative meaning.
Hazardous Substance shall mean any hazardous or toxic material, substance
or waste, pollutant or contaminant which is regulated under any Environmental
Law, including, without limitation, any material, substance or waste which is:
(a) defined as a hazardous substance under Section 311 of the Federal Water
Pollution Control Act (33 U.S.C. (S)(S)1317), as amended; (b) regulated as a
hazardous waste under Section 1004 or Section 3001 of the Federal Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act (42
U.S.C. (S)(S)6901 et seq.), as amended; (c) defined as a hazardous substance
under Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. (S)(S)9601 et seq.), as amended; or (d) defined or
regulated as a hazardous substance or hazardous waste under any rules or
regulations promulgated under any of the foregoing statutes.
Indebtedness shall mean, with respect to any Person, without duplication,
all indebtedness, liabilities and obligations of such Person, and in any event
shall include all (i) obligations of such Person for borrowed money or which
have been incurred to acquire Property, (ii) obligations secured by any Lien on,
or payable out of the proceeds of production from, any Property or assets owned
by such Person, whether or not such Person has assumed or become liable for the
payment of such obligations, (iii) indebtedness, liabilities and obligations of
third parties, including joint ventures and partnerships of which such Person is
a venturer or general partner, recourse to which may be had against such Person,
(iv) obligations created or arising under any conditional sale or other title
retention agreement with respect to Property acquired by such Person,
notwithstanding the fact that the rights and remedies of the seller, lender or
lessor under such agreement in the event of default are limited to repossession
or sale of such Property, (v) Capitalized Lease Obligations of such Person, (vi)
indebtedness, liabilities and obligations of such Person under Guarantees and
(vii) all obligations of such Person, contingent or otherwise, relative to the
face amount of all letters of credit (as may be reduced pursuant to their
terms), whether or not drawn.
Indemnitees shall have the meaning ascribed thereto in Section 11.4.
Intercompany Note shall mean debt in the aggregate amount of $25,000,000.00
that Borrower paid on behalf of Trinity.
Interest Period shall mean with respect to each LIBOR Loan:
(i) initially, the period commencing on the date of such Loan and
ending 1, 2, 3 or 6 months thereafter (or such other period agreed upon in
writing by Xxxxxxxx and all of the Banks), as the Borrower may elect in the
applicable Notice of Borrowing; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Loan and ending 1, 2, 3 or 6 months
thereafter (or such other period agreed upon in writing by Xxxxxxxx and all of
the Banks), as Borrower may elect pursuant to Section 5.1;
provided that:
(iii) subject to clause (iv) below, if any Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such Business Day falls
in another calendar month, in which case such Interest Period shall end on the
immediately next preceding Business Day; and
(iv) no Interest Period for a LIBOR Loan shall extend beyond the last
day of the Revolving Credit Period.
Initial Offering shall mean the initial sale by Borrower of at least
3,000,000 shares of common stock of Borrower.
Investment shall mean any investment by Borrower or any Subsidiary in any
Person, whether payment therefor is made in cash or capital stock of Borrower or
any Subsidiary, and whether such investment is by acquisition of stock or
Indebtedness, or by loan, advance, transfer of property out of the ordinary
course of business, capital contribution, equity or profit sharing interest,
extension of credit on terms other than those normal in the ordinary course of
business, Guarantee or otherwise becoming liable (contingently or otherwise) in
respect of the Indebtedness of any Person, or otherwise.
Issuer shall have the meaning ascribed thereto in Section 4.
Letter of Credit and Letters of Credit shall have the meanings ascribed
thereto in Section 4.1(a).
Letter of Credit Application shall mean an application and agreement for
standby letter of credit in substantially the form of Exhibit D attached hereto
and incorporated herein by reference executed by Xxxxxxxx and any Subsidiary (if
the Letter of Credit is to be for the account of a Subsidiary) and delivered to
a Bank pursuant to Section 4.1(a), as the same may from time to time be amended
modified, extended or renewed.
Letter of Credit Commitment shall have the meaning ascribed thereto in
Section 4.1 (a).
Letter of Credit Commitment Fee shall have the meaning ascribed thereto in
Section 4.1(c).
Letter of Credit Loan and Letter of Credit Loans shall have the meaning
ascribed thereto in Section 4.3.
Letter of Credit Period shall mean the period commencing on the effective
date hereof and ending September 30, 1999.
Letter of Credit Request shall have the meaning ascribed thereto in Section
4.1 (a).
LIBOR Base Rate means, for an Interest Period, (a) the LIBOR Index Rate for
such Interest Period, if such rate is available, and (b) if the LIBOR Index Rate
cannot be determined, the arithmetic average of the rates of interest per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) at which deposits in
U.S. dollars in immediately available funds are offered to the Agent at 11:00
a.m. (New Orleans time), or as soon thereafter as practicable, three (3)
Business Days before the beginning of such Interest Period by two (2) or more
major banks in the London interbank market selected by the Agent for a period
equal to such Interest Period and in an amount equal or comparable to the
principal amount of the LIBOR Loan scheduled to be made available by the Banks.
As used herein, "LIBOR Index Rate" means, for any Interest Period, the London
interbank offered rate per annum (rounded upwards, if necessary, to the next
higher one hundred-thousandth of a percentage point) for deposits in U.S.
Dollars for a period equal to such Interest Period, which appears on the
Telerate Page 3875 as of 9:00 a.m. (New Orleans time) on the day three Business
Days before the commencement of such Interest Period.
LIBOR Loan shall mean a loan bearing interest at the LIBOR Rate.
LIBOR Rate shall mean (a) the quotient of the (i) LIBOR Base Rate divided
by (ii) one minus the applicable LIBOR Reserve Percentage plus (b) the
Applicable Margin. The LIBOR Rate shall be adjusted automatically on and as of
the effective date of any change in the LIBOR Reserve Percentage and Agent shall
notify Borrower and Banks of any such change.
LIBOR Reserve Percentage shall mean for any day the percentage (including
any supplemental percentage applied on a marginal basis or any other reserve
requirement having a similar effect), expressed as a decimal, which is in effect
on the first day of the applicable Interest Period, as prescribed by the Board
of Governors of the Federal Reserve System (or any successor) under Regulation D
(or any other then applicable regulation of the Board of Governors (or any
successor)) with respect to "Eurocurrency Liabilities".
Lien shall mean any interest in Property securing an obligation owed to, or
a claim by, a Person other than the owner of the Property, whether such interest
is based on common law, statute or contract, including, without limitation, any
security interest, mortgage, deed of trust, pledge, assignment, judgment lien or
other lien or encumbrance of any kind or nature whatsoever, any conditional sale
or trust receipt, and any consignment or bailment for security purposes. The
term "Lien" shall include reservations, exceptions, encroachments, easements,
servitudes, rights-of-way, covenants, conditions, restrictions, leases and other
title exceptions and encumbrances affecting Property.
Loans shall collectively mean the Revolving Credit Loans, the Swing Loans,
and the Letter of Credit Loans, with each being a Loan, and shall include all
principal, interest, attorneys' fees and costs owed thereon.
Material Adverse Effect shall mean a material adverse effect on the
Properties, assets, liabilities, business, operations, prospects, income or
condition (financial or otherwise) of Borrower and its Subsidiaries taken as a
whole.
Moody's shall mean Xxxxx'x Investors Service, Inc.
Multi-Employer Plan shall mean a "multi-employer plan" as defined in
Section 4001(a)(3) of ERISA which is maintained for employees of Borrower, any
Subsidiary or
any ERISA Affiliate or to which Borrower, any Subsidiary of Borrower or any
ERISA Affiliate has contributed in the past or currently contributes.
Non-Competition Agreement shall mean the Non-Competition Agreement between
Xxxxxxxx and Xxxx Xxxx, III, dated as of October 1, 1996.
Notes shall mean all of the Revolving Credit Notes and the Swing Line Note.
Notice of Borrowing shall have the meaning ascribed thereto in Section 3.3.
Obligor shall mean Borrower, each Subsidiary and each other Person who is
or shall at any time hereafter become primarily or secondarily liable on any of
Borrower's Obligations.
Occupational Safety and Health Laws shall mean the Occupational Safety and
Health Act of 1970, as amended, and any other federal, state or local statute,
law, ordinance, code, rule,regulation, order or decree regulating, relating to
or imposing liability or standards of conduct concerning employee health and/or
safety, as now or at any time hereafter in effect.
Offshore shall mean Offshore Marine Indemnity Company, with Taxpayer
Identification Number 00-0000000.
Offshore Commitment shall mean an aggregate amount not to exceed the face
amount of $10,000,000.00.
Operating Lease shall mean any lease of Property, whether real and/or
personal, by a Person as lessee which is not a Capitalized Lease.
Operating Lease Obligations of any Person shall mean, as of any date for
which it is being determined, all of the rental obligations due and to become
due in less than twelve months from the date of determination thereof under all
Operating Leases under which such Person is a lessee.
PBGC shall mean the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Pension Plan shall mean a "pension plan," as such term is defined in
Section 3(2) of ERISA, which is established or maintained by Borrower, any
Subsidiary or any ERISA Affiliate, and includes, without limitation, a Multi-
Employer Plan.
Permitted Liens shall mean any of the following:
(a) Liens for property taxes and assessments or governmental charges
or levies, provided that payment thereof is not at the time required by Section
8.1(d);
(b) (i) Deposits to secure the performance of bids, tenders or trade
contracts, or to secure statutory obligations, surety or appeal bonds or other
Liens of like general nature incurred in the ordinary course of business and not
in connection with the borrowing of money or the acquisition of inventory or
other Property and (ii) Liens (other than any Liens imposed by ERISA) arising in
the ordinary course of business or incidental to the ownership of Properties and
assets (including Liens in connection with worker's compensation, unemployment
insurance and other like laws, carrier's, mechanic's, materialmen's,
repairmen's, vendor's, warehousemen's and attorneys' liens and statutory
landlords' liens); provided in each case (x) the obligation secured is not
overdue or, if overdue, is being contested in good faith by appropriate actions
or proceedings being diligently conducted and for which adequate provision as
determined in accordance with GAAP has been made, (y) payment thereof is not at
the time required by Section 8.1(d) or 8.1(e), and (z) if the obligations
secured thereby are in excess of $50,000.00, Agent is provided written notice of
such Lien within twenty days of when the Lien becomes overdue;
(c) Survey exceptions, issues with regard to the merchantability of
title, easements or reservations, or rights of others for rights-of-way,
servitudes, utilities and other similar purposes, or zoning or other
restrictions as to the use of real properties, which could not reasonably be
expected to have a Material Adverse Effect;
(d) Liens permitted by the Required Banks in writing;
(e) Liens granted in the ordinary course of business on vessels under
construction in favor of the purchaser or owner of such vessels (or lenders to
such purchasers or owners);
(f) Liens reflected on Schedule 2.1(a) attached hereto in existence as
of the effective date hereof, and any extensions, renewals and refinancings
thereof (provided that any such refinancing shall not increase the principal
indebtedness secured thereby without the prior written consent of the Required
Banks);
(g) Liens on Properties in respect of judgments or awards, the
Indebtedness with respect to which is permitted by Section 8.2(a)(vi);
(h) non-perfected Liens in favor of Fireman's Fund Insurance Company
pursuant to a bonding company indemnity agreement in customary form; and
(i) non-perfected Liens in favor of Trinity in existence on October 1,
1996, to secure its contingent liability under parent guarantees, letters of
credit, bank guarantees or other similar obligations related to existing
construction contracts or outstanding bid proposals of Borrower or any
Subsidiary to the extent such Liens would customarily be required by a bonding
company in like circumstances.
Person shall mean any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, entity or government (whether national, federal, state, county,
city, municipal or otherwise, including, without limitation, any
instrumentality, division, agency, body or department thereof).
Prime Rate shall mean the interest rate announced from time to time by
Xxxxxxxx, N.A. at its main office in New York as its "prime rate" on commercial
loans (which rate shall fluctuate as and when said prime rate shall change).
Property shall mean any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible. Properties shall mean the
plural of Property. For purposes of this Agreement, Borrower and each
Subsidiary shall be deemed to be the owner of any Property which it has acquired
or holds subject to a conditional sale agreement, financing lease or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes.
Pro Rata Share shall mean with respect to each Bank, the percentage amount
equal to the sum of such Bank's Revolving Credit Commitment, divided by the sum
of all of the Banks' Revolving Credit Commitments.
RCRA shall mean the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C. (S)(S)6901 et seq., and any future amendments, and shall
include any and all regulations issued pursuant thereto.
Regulation D shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as amended.
Regulatory Change shall have the meaning ascribed thereto in Section 5.9.
Release shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing into
the environment, including, without limitation, the abandonment or discarding of
barrels, drums, containers, tanks and/or other receptacles containing or
previously containing any Hazardous Substance.
Reportable Event shall have the meaning given to such term in ERISA.
Reserves Loan shall have the meaning ascribed to such term in 6.3(g).
Required Banks shall mean at any time Banks having Sixty-Six and Two Thirds
Percent (66 2/3 %) of the aggregate amount of Loans and the face amount of
Letters of Credit then outstanding or, if no Loans or Letters of Credit are then
outstanding,
Sixty-Six and Two Thirds Percent (66 2/3%) of the total Commitments of all of
the Banks.
Responsible Officer shall mean the chief executive officer, president,
chief operating officer, chief financial officer or chief accounting officer of
Borrower or any other officer of Borrower involved in the financial
administration or controllership function of Borrower.
Restricted Investment shall mean any Investment, or any expenditure or any
incurrence of any liability to make any expenditure for an Investment, other
than:
(a) Guarantees, loans and/or advances by Borrower or a Subsidiary to
any Subsidiary in which all of the issued and outstanding shares of stock is
owned by Xxxxxxxx and/or any Subsidiaries; provided that, neither Borrower nor
any Subsidiary will make any Guarantee, loan and/or advance to Offshore other
than (i) in connection with Letters of Credit issued for the account of Offshore
pursuant to this Agreement and (ii) repayment of the Reserves Loan;
(b) Guarantees, loans and/or advances by (i) any Subsidiary other than
Offshore to Borrower which are subordinated in writing to the payment of the
Borrower's Obligations in form and substance satisfactory to the Required Banks
or (ii) Offshore to Borrower relating to the Reserves Loan;
(c) Direct obligations of the United States of America or any
instrumentality or agency thereof, the payment of which is unconditionally
guaranteed by the United States of America or any instrumentality or agency
thereof (all of which Investments must mature within twelve (12) months from the
time of acquisition thereof);
(d) Investments in readily marketable commercial paper which, at the
time of acquisition thereof by Borrower or any Subsidiary, is rated investment
grade or better by S&P or Xxxxx'x and which matures within 270 days from the
date of acquisition thereof, provided that the issuer of such commercial paper
shall, at the time of acquisition of such commercial paper, have a senior long-
term debt rating of at least A by S&P and Xxxxx'x;
(e) Negotiable certificates of deposit or negotiable bankers
acceptances issued by (i) any of the Banks or (ii) any other bank or trust
company organized under the laws of the United States of America or any state
thereof, which bank or trust company (other than the Banks to which such
restrictions shall not apply) is a member of both the Federal Deposit Insurance
Corporation and the Federal Reserve System and is rated B or better by Xxxxxxxx
Bank Watch Service (all of which Investments must mature within twelve (12)
months from the time of acquisition thereof);
(f) Repurchase agreements, which shall be collateralized for at least
100% of face value, issued by (i) any of the Banks or (ii) any other bank or
trust company
organized under the laws of the United States or any state thereof, which bank
or trust company (other than the Banks to which such restrictions shall not
apply) is a member of both the Federal Deposit Insurance Corporation and the
Federal Reserve System and is rated B or better by Xxxxxxxx Bank Watch Service
(all of which Investments must mature within twelve (12) months from the time of
acquisition thereof);
(g) Investments in mutual funds the investments of which are limited
to direct obligations of the United States of America or any instrumentality or
agency thereof, the payment of which is unconditionally guaranteed by the United
States of America or any instrumentality or agency thereof;
(h) Investments existing as of the effective date hereof as described
in Schedule 7.17, and any future retained earnings in respect thereof;
(i) Guarantees, loans or advances other than in the ordinary course
of business to officers or employees of Borrower or a Subsidiary in the
aggregate principal amount of up to $500,000.00 at any one time outstanding;
(j) Acquisitions through (i) the issuance of stock (or the use of the
proceeds from the sale of stock) of the Borrower or of any Subsidiary (other
than through the use of proceeds from the Initial Offering), (ii) the issuance,
incurrence or provision of Indebtedness as allowed by Section 8.2(a)(xiii) of
this Agreement, (iii) with the consent of the Required Banks, the use of Loan
proceeds, or (iv) any combination of the foregoing; and
(k) Investments representing all or a portion of the sales price for
property sold to another Person in the ordinary course of business.
Revolving Credit Commitment shall mean for each Bank, subject to
termination or reduction as set forth in Section 3.5, the principal amount set
forth as the Revolving Credit Commitment for such Bank next to its name on the
signature pages hereof, which commitments in the aggregate equal the principal
amount of $135,000,000.00.
Revolving Credit Loan and Revolving Credit Loans shall have the meanings
ascribed thereto in Section 3.1.
Revolving Credit Notes shall have the meaning ascribed thereto in Section
3.4(a).
Revolving Credit Period shall mean the period commencing on the effective
date of this Agreement and ending September 30, 1999, unless extended from time
to time with the unanimous consent of the Banks as provided in Section 3.6
hereof.
S&P shall mean Standard and Poor's Ratings Group.
Separation and Related Agreements shall mean the Separation Agreement,
Barge Agreement, Insurance Agreement, Tax Allocation Agreement and the Trademark
License Agreement between Borrower and Trinity dated as of October 1, 1996.
Subsidiary shall mean (a) any corporation of which more than fifty percent
(50%) of the issued and outstanding capital stock entitled to vote for the
election of directors (other than by reason of default in the payment of
dividends) is at the time owned directly or indirectly by Borrower or any
Subsidiary of Borrower, or (b) any partnership, limited liability company,
business trust, or any other similar entity of which more than fifty percent
(50%) of the voting interests is at the time owned directly or indirectly by
Borrower or any Subsidiary of Borrower.
Swing Loans and Swing Loan shall have the meanings ascribed thereto in
Section 3.2.
Swing Line Note shall have the meaning ascribed thereto in Section 3.2.
Swing Line Commitment shall mean the aggregate principal amount of
$5,000,000.00 at any one time outstanding.
Telerate Page 3875 means the display designated as "Page 3875" of the Dow
Xxxxx Telerate Service (or such other page as may replace Page 3875 on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. Dollar Deposits).
Term shall have the meaning ascribed thereto in Section 1.
Total Revolver Outstandings shall mean the sum of (i) the aggregate
principal amount of all outstanding Revolving Credit Loans, plus (ii) the
aggregate principal amount of all outstanding Swing Loans plus (iii) the
aggregate principal amount of all outstanding Letter of Credit Loans plus (iv)
the aggregate undrawn face amount of all outstanding Letters of Credit.
Transaction Documents shall mean this Agreement, the Notes, the Letter of
Credit Application(s), the Continuing Guarantees, and all other agreements,
documents and instruments heretofore, now or hereafter delivered to the Agent or
any of the Banks with respect to or in connection with or pursuant to this
Agreement, any Loans made hereunder or thereunder, any Letters of Credit issued
hereunder or thereunder, or any other of Borrower's Obligations, and executed by
or on behalf of Borrower or any Subsidiary, all as the same may from time to
time be amended, modified, extended or renewed.
Trinity shall mean Trinity Industries, Inc., a Delaware corporation, with
Taxpayer Identification Number 00-0000000, and any subsidiaries thereof (except
for the Borrower and the Subsidiaries).
U. S. Governmental Authority shall mean the United States of America,
any political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to the United States of America.
Whitney shall mean Whitney National Bank, a national banking association,
in its individual corporate capacity as a Bank hereunder and the lender of the
Swing Loans.
2.2 Accounting Terms and Determinations. Except as otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made and all financial statements required to
be delivered hereunder shall be prepared as determined in accordance with GAAP
as in effect from time to time, applied on a basis consistent (except for
changes accompanied by a concurrence from Xxxxxxxx's independent certified
public accountants) with the most recent audited financial statements of
Borrower delivered to the Banks.
SECTION 3. THE REVOLVING CREDIT LOANS.
--------------------------------------
3.1 Revolving Credit Commitments. Subject to the terms and conditions set
forth in this Agreement and so long as no Default or Event of Default under this
Agreement has occurred and is continuing, during the Revolving Credit Period,
each Bank severally agrees to lend to Borrower from time to time (individually,
a "Revolving Credit Loan" and collectively, the "Revolving Credit Loans")
amounts not to exceed, in the aggregate at any one time outstanding, the lesser
of: (a) such Bank's Revolving Credit Commitment, or (b) such Bank's Pro Rata
Share of the sum of the total Revolving Credit Commitments of all of the Banks
minus the aggregate principal amount of all outstanding Letter of Credit Loans
minus the aggregate undrawn face amount of all outstanding Letters of Credit
minus the principal amount of any outstanding Swing Loans. Each Revolving
Credit Loan under this Section 3.1 shall be made from the several Banks ratably
in proportion to their respective Pro Rata Shares, and may be made as either (x)
a Base Rate Loan, (y) a LIBOR Loan, or (z) any combination thereof, as
determined by Borrower with notice thereof to Agent pursuant to Section 3.3.
Each Revolving Credit Loan under this Section 3.1 which is a Base Rate Loan
shall be for an aggregate principal amount of at least $1,000,000.00 or any
larger multiple of $100,000.00. Each Revolving Credit Loan under this Section
3.1 which is a LIBOR Loan shall be for an aggregate principal amount of at least
$5,000,000.00 or any larger multiple of $500,000.00. Within the foregoing
limits, Borrower may borrow under this Section 3.1, prepay under Section 5.4(a)
or 5.4(b) and reborrow at any time during the Revolving Credit Period under this
Section 3.1. The failure of any Bank to make any Revolving Credit Loan required
under
this Agreement shall not release any other Bank from its obligation to make
Revolving Credit Loans as provided herein.
3.2 The Swing Line. Subject to all of the terms and conditions hereof and
so long as no Default or Event of Default under this Agreement has occurred and
is continuing, Xxxxxxx agrees to make loans to Borrower (individually, a "Swing
Loan" and collectively, the "Swing Loans") which shall not in the aggregate at
any time outstanding exceed the lesser of (i) the Swing Line Commitment, or (ii)
the difference between the Revolving Credit Commitments of all of the Banks and
the amount of the Revolving Credit Loans, the aggregate principal amount of all
outstanding Letter of Credit Loans and the undrawn face amount of Letters of
Credit then outstanding hereunder at the time of computation. The Swing Loans
shall be available to Borrower and may be availed of by Borrower from time to
time, and borrowings thereunder may be repaid and used again during the period
ending on the last day of the Revolving Credit Period. All Swing Loans shall be
made hereunder only as Base Rate Loans. The Swing Loans shall be evidenced by
the Swing Line Note of Borrower dated as of the effective date hereof (the
"Swing Line Note") payable to the order of Whitney in the amount of the Swing
Line Commitment and being in the form attached hereto as Exhibit B.
3.3 Method of Borrowing.
(a) With respect to each Revolving Credit Loan, Borrower shall give
notice (a "Notice of Borrowing") to the Agent by 11:00 a.m. (New Orleans time)
on the day of each Base Rate Loan, and by 11:00 a.m. (New Orleans Time) at least
three (3) Business Days before each LIBOR Loan, specifying:
(i) the date of such Revolving Credit Loan, which shall be a Business
Day,
(ii) the aggregate principal amount of such Revolving Credit Loan,
(iii) whether such Loan is to be a Base Rate Loan or a LIBOR Loan, or
a combination thereof,
(iv) in the case of a LIBOR Loan, the duration of the initial Interest
Period applicable thereto, subject to the provisions of the definition of
Interest Period,
(v) that on the date of, and after giving effect to, such Revolving
Credit Loan, no Default or Event of Default under this Agreement has occurred
and is continuing, and
(vi) that on the date of, and after giving effect to, such Revolving
Credit Loan, all of the representations and warranties of Borrower contained in
Section 7 of this Agreement (other than any representations and warranties
regarding Trinity) and in the other Transaction Documents are true and correct
in all material respects as if made on and as of the date of such Revolving
Credit Loan.
A Notice of Borrowing shall not be required in connection with a Base Rate Loan
pursuant to Section 5.7 or 5.8.
(b) Upon receipt of a Notice of Borrowing given to it, the Agent shall
notify each Bank by 1:00 p.m. (New Orleans time) on the date of receipt of such
Notice of Borrowing by the Agent (which must be a Business Day) of the contents
thereof and of such Bank's ratable share of such Revolving Credit Loan. A
Notice of Borrowing shall not be revocable by Borrower.
(c) Not later than 3:00 p.m. (New Orleans time) on the date of each
Revolving Credit Loan, each Bank shall make available its Pro Rata Share of such
Revolving Credit Loan, in federal or other funds immediately available in New
Orleans, Louisiana, to the Agent at its address specified in or pursuant to
Section 11.7. Agent shall not be required to make any amount available to
Borrower hereunder except to the extent it shall have received such amounts from
the Banks as set forth herein, provided, however, that unless the Agent shall
have been notified by a Bank prior to the date a Revolving Credit Loan is to be
made hereunder that such Bank does not intend to make its Pro Rata Share of such
Revolving Credit Loan available to the Agent, the Agent may assume that such
Bank has made such Pro Rata Share available to the Agent on such date, and the
Agent may in reliance upon such assumption make available to the Borrower a
corresponding amount. If such corresponding amount is not in fact made
available to the Agent by such Bank and the Agent has made such amount available
to the Borrower, the Agent shall be entitled to receive such amount from such
Bank forthwith upon its demand, together with interest thereon in respect of
each day during the period commencing on the date such amount was made available
to the Borrower and ending on but excluding the date the Agent recovers such
amount from the Bank at a rate per annum equal to the effective rate charged to
the Agent for overnight federal funds transactions with member banks of the
Federal Reserve System for each day as determined by the Agent (or in the case
of a day which is not a Business Day, then for the preceding Business Day).
Unless the Agent determines that any applicable condition specified in Section 6
has not been satisfied, the Agent will make the funds so received from the Banks
available to Borrower thereafter as of 3:30 p.m. New Orleans time at the Agent's
aforesaid address by crediting such funds to a demand deposit account (or such
other account mutually agreed upon in writing between Agent and Borrower) of
Borrower with the Agent.
(d) With respect to each Swing Loan, Borrower shall give Whitney prior
notice (which may be written or oral but which must be given prior to 2:00 p.m.
New Orleans time on the date of the Swing Loan) of the amount and date of each
Swing Loan and, subject to all of the terms and conditions hereof, the proceeds
of such Swing Loan shall be made available to Borrower on the date of request at
the offices of the Agent in New Orleans, Louisiana. Anything contained in the
foregoing to the contrary notwithstanding, (i) the obligation of Xxxxxxx to make
Swing Loans shall be subject to all of the terms and conditions of this
Agreement, and (ii) Whitney shall not be obligated to make more than one Swing
Loan to Borrower during any day.
3.4 Revolving Credit Notes.
(a) The Revolving Credit Loans of each Bank to Borrower during the
Revolving Credit Period shall be evidenced by Revolving Credit Note of Borrower
dated the effective date hereof and payable to the order of such Bank in a
principal amount equal to its Revolving Credit Commitment in substantially the
form of Exhibit A attached hereto (with appropriate insertions) (as the same may
from time to time be amended, modified extended or renewed, the "Revolving
Credit Notes").
(b) Upon receipt of each Bank's Revolving Credit Note pursuant to
Section 3.l(a), the Agent shall mail such Revolving Credit Note by overnight
express delivery to such Bank. Each Bank shall record, and prior to any transfer
of its Revolving Credit Note may endorse on the schedules forming a part
thereof, appropriate notations to evidence the date and amount of each Revolving
Credit Loan made by it during the Revolving Credit Period and the date and
amount of each payment of principal made by Borrower with respect thereto. Each
Bank is hereby irrevocably authorized by Borrower so to endorse its Revolving
Credit Note and to attach to and make a part of any such Revolving Credit Note a
continuation of any such schedule as and when required; provided, however that
the obligation of Borrower to repay each Revolving Credit Loan actually made
hereunder shall be absolute and unconditional, notwithstanding any failure of
any Bank to endorse or any mistake by any Bank in connection with endorsement on
the schedules attached to its respective Revolving Credit Note. The internal
records of each Bank shall constitute for all purposes prima facie evidence of
(i) the amount of principal and interest owing on the Revolving Credit Loans
from time to time, (ii) the amount of each Revolving Credit Loan made to the
Borrower and (iii) the amount of each principal and/or interest payment received
by the Banks on the Revolving Credit Loans.
3.5 Termination or Reduction of Commitments. Borrower may, upon three (3)
Business Days' prior written notice to the Agent, terminate entirely at any
time, or proportionately reduce from time to time on a pro rata basis among the
Banks based on their respective Revolving Credit Commitments by an aggregate
amount of $1,000,000.00 or any larger multiple of $500,000.00 the unused
portions of the Revolving Credit Commitments; provided, however, that (i) at no
time shall the Revolving Credit Commitments be reduced to a figure less than the
Total Revolver Outstandings, (ii) at no time shall the Revolving Credit
Commitments be reduced to a figure greater than zero but less than $5,000,000.00
and (iii) any such termination or reduction shall be permanent and Borrower
shall have no right to thereafter reinstate or increase, as the case may be, the
Revolving Credit Commitment of any Bank. Xxxxxxxx agrees to pay to the Agent for
the benefit of and disbursement to the Banks a reduction fee on the effective
date of each reduction in the Revolving Credit Commitments pursuant to this
Section 3.5 equal to 1/10 of 1% of the amount of each such reduction.
3.6 Maturity. All Revolving Credit Loans and all Swing Loans not paid
prior to the last day of the Revolving Credit Period, together with all accrued
and unpaid interest thereon and all fees and other amounts owing by Borrower to
the Banks with respect thereto, shall be due and payable on the last day of the
Revolving Credit Period. Each year of the Revolving Credit Period, during the
period commencing on October 1st and ending on December 1st, Borrower may
request that the Revolving Credit Period be extended for up to one year from the
end of the then applicable Revolving Credit Period. Upon the unanimous consent
of the Banks, which consent may be withheld in the discretion of any of the
Banks, the Revolving Credit Period (and the Term of this Agreement) shall be so
extended, provided that Borrower and the Subsidiaries shall execute such
documentation as Banks shall require to evidence such extension. The Banks
agree to provide Borrower with a response to any such request for an extension
of the Revolving Credit Period within 60 days following receipt thereof;
provided that, the failure of the Banks, or any one or more of them, to provide
a response within such 60 day period shall not be construed to constitute
consent to such an extension on the part of any of the Banks.
3.7 Special Swing Loan Provisions.
(a) All Swing Loans shall be payable with accrued interest thereon
solely to Xxxxxxx for its own account. Upon the earlier to occur of (i) seven
days after the making of any Swing Loan or (ii) at any time at the discretion of
Whitney, Borrowers shall repay all of such Swing Loans in cash by 1:00 p.m., New
Orleans time the following Business Day, or make a Revolving Credit Loan in an
amount at least equal to the aggregate outstanding principal amount of all Swing
Loans, together with all accrued interest thereon, and shall apply the proceeds
of such Revolving Credit Loans to repay in its entirety the aggregate
outstanding principal amount of all Swing Loans, together with accrued interest
thereon to the date of such repayment.
(b) In the event that any portion of any Swing Loan is not repaid as
set forth above, Xxxxxxx shall promptly notify Agent and Agent shall promptly,
and in no event later than 5:00 p.m., New Orleans time, two Business Days
thereafter, notify each Bank in writing of the unreimbursed amount of such Swing
Loan and of such Bank's Pro-Rata Share of such unreimbursed amount. Each of the
Banks shall make a Revolving Credit Loan in an amount equal to such Bank's Pro-
Rata Share of the unreimbursed amount of such Swing Loan, together with accrued
unpaid interest thereon (to the extent that there is availability under the
Revolving Credit Commitments), and pay the proceeds thereof, in immediately
available funds, directly to Xxxxxxx, not later than 1:00 p.m., New Orleans
time, on the next Business Day after the date such Bank is notified by the
Agent. Revolving Credit Loans made by the Banks to repay unreimbursed Swing
Loans pursuant to this subsection shall constitute Revolving Credit Loans
hereunder, initially shall be Base Rate Loans and shall be subject to all of the
provisions of this Agreement concerning Revolving Credit Loans, except that such
Revolving Credit Loans shall be made upon demand by the Agent as set forth above
rather than upon notice by Borrower and shall be made, notwithstanding anything
in this Agreement to the contrary, without
regard to satisfaction of conditions precedent to the making of Revolving Credit
Loans set forth in Section 3 of this Agreement; provided however, that no Bank
shall be obligated to make such Revolving Credit Loans if, prior to the date of
such notice from Agent to Xxxxx, Xxxxxxx had received written notice from the
Agent or any Bank of the existence and continuance of a Default or an Event of
Default or Xxxxxxx had actual knowledge of the existence and continuance of a
Default or an Event of Default.
(c) Each Bank's obligation to make Revolving Credit Loans in the
amount of its Pro-Rata Share of any unreimbursed Swing Loan pursuant hereto is
several, and not joint or joint and several. The failure of any Bank to perform
its obligation to make a Revolving Credit Loan in the amount of such Bank's Pro-
Rata Share of any unreimbursed Swing Loan will not relieve any other Bank of its
obligation hereunder to make a Revolving Credit Loan in the amount of such other
Bank's Pro-Rata Share of such unreimbursed Swing Loan. Any Bank may but shall
have no obligation to any Person to assume all or any portion of any non-
performing Bank's obligation to make a Revolving Credit Loan in the amount of
such Bank's Pro-Rata Share of such unreimbursed Swing Loan. The Borrower agrees
to accept the Revolving Credit Loans hereinabove provided, whether or not such
Loans could have been made pursuant to the terms of Section 3 hereof or any
other Section of this Agreement.
(d) In the event, for whatever reason, the Agent determines that the
Banks are not able to, or that it could be disadvantageous for the Banks to,
advance their respective Pro-Rata Share of Revolving Credit Loans for the
purpose of refunding Swing Loans as required hereunder, then each of the Banks
(subject to the provisions of this Section 3.7) absolutely and unconditionally
agrees to purchase and take from Xxxxxxx on demand an undivided participation
interest in Swing Loans outstanding in an amount equal to their respective Pro-
Rata Share of such Swing Loans.
SECTION 4. LETTERS OF CREDIT.
------------------------------
4.1 Letter of Credit Commitment.
(a) Subject to the terms and conditions of this Agreement, during the
Letter of Credit Period of this Agreement, and so long as no Default or Event of
Default under this Agreement has occurred and is continuing (provided, however,
that Issuer shall have no liability to any of the other Banks for issuing a
Letter of Credit after the occurrence of any Default or Event of Default under
this Agreement unless Issuer has previously received notice in writing to Issuer
by Borrower, the Agent or any of the other Banks of the occurrence of such
Default or Event of Default), each Bank, except The Sumitomo Bank Limited,
hereby agrees, upon the request of and as determined by Agent, to issue
irrevocable standby letters of credit for the account of Borrower or for the
account of Borrower and any Subsidiary (individually, a "Letter of Credit" and
collectively, the "Letters of Credit") (the "Letter of Credit Commitment") in an
amount and for the term specifically requested by Borrower by notice in writing
to such Bank in
the form of Exhibit E attached hereto and incorporated herein by reference (a
"Letter of Credit Request") at least three (3) Business Days prior to the
requested issuance thereof; provided, however, that:
(i) Borrower, and if the Letter of Credit is to be issued for the
account of Xxxxxxxx and a Subsidiary, such Subsidiary, shall have executed and
delivered to Issuer a Letter of Credit Application with respect to such Letter
of Credit, with Borrower and any Subsidiary executing same to be jointly,
severally and solidarily liable thereunder;
(ii) the term of any such Letter of Credit shall not extend beyond the
last day of the Letter of Credit Period;
(iii) any Letter of Credit may only be utilized to guaranty or support
the payment of obligations of Borrower or any Subsidiary to third parties
incurred in the ordinary course of business;
(iv) the Total Revolver Outstandings shall not at any one time exceed
the sum of One Hundred Thirty Five Million Dollars ($135,000,000.00);
(v) the sum of (A) the aggregate undrawn face amount of all
outstanding Letter(s) of Credit issued for the account of Borrower or for the
account of Borrower and any Subsidiary other than Offshore plus (B) the
aggregate principal amount of all outstanding Letter of Credit Loans arising out
of Letter(s) of Credit issued for the account of Borrower or for the account of
Borrower and any Subsidiary other than Offshore shall not at any one time exceed
the sum of Fifty Million Dollars ($50,000,000.00);
(vi) the text of any such Letter of Credit is provided to Issuer no
less than three (3) Business Days prior to the requested issuance date, the
terms and conditions of which must be acceptable to Issuer; and
(vii) The aggregate face amount of Letter(s) of Credit issued for the
account of Xxxxxxxx and Offshore shall not at any time exceed the Offshore
Commitment.
("Issuer" shall mean the Bank that issues a Letter of Credit.)
Xxxxx and Xxxxxxxx acknowledge and agree that pursuant to the Original
Credit Agreement Agent issued an irrevocable standby letter of credit for the
account of Borrower on October 28, 1996 in the principal amount of $613,275.00
for the benefit of Aquamaster-Rauma Ltd. with an expiry date of April 15, 1997.
Xxxxx and Xxxxxxxx further acknowledge and agree that such letter of credit
together with any other letters of credit issued pursuant to the Original Credit
Agreement shall be deemed outstanding Letters of Credit under this Agreement and
shall be governed by the terms and provisions of this Agreement.
(b) The Issuer will make available the original of each Letter of Credit to
the beneficiary thereof (and will promptly provide each of the Banks and the
Agent with a copy of such Letter of Credit).
(c) For each Letter of Credit, Borrower (or any Subsidiary that executed
the Letter of Credit Application) hereby further agrees to pay to the Agent for
the account of the Issuer and the Banks an annual nonrefundable commitment fee
payable quarterly in an amount equal to the rate per annum equal to the then
current Applicable Margin for LIBOR Loans (excluding the Trinity Discount and
calculated on an actual day, 360 day year basis) times the face amount (taking
into account any scheduled increases or decreases therein during the period in
question) of each such Letter of Credit issued hereunder ("Letter of Credit
Commitment Fee"), which Letter of Credit Commitment Fee shall be due and payable
in arrears with respect to each Letter of Credit on the last Business Day of
each calendar quarter during the term of each respective Letter of Credit and on
the termination thereof (whether at its stated maturity or earlier). Borrower
further agrees to pay (or cause any Subsidiary for which the Letter of Credit
was issued to pay) to Issuer all reasonable administrative fees of Issuer in
connection with the issuance, maintenance, modification (if any) and
administration of each Letter of Credit and standard negotiation charges upon
demand from time to time. Each of the Banks shall be entitled to its Pro Rata
Share of any Letter of Credit Commitment Fees, but the Banks shall have no right
to share in any administrative fees paid by Borrower (or any Subsidiary) to
Issuer in connection with any of the Letters of Credit. In addition to the
Letter of Credit Commitment Fee, for each Letter of Credit, Borrower hereby
further agrees to pay (or arrange for any Subsidiary that executed the Letter of
Credit Application to pay) to the Agent, solely for the account of the Issuer,
an annual nonrefundable commitment fee in an amount equal to 1/8 of 1% of the
undrawn face amount of each such Letter of Credit issued hereunder, which such
fee shall be due and payable upon issuance of such Letter of Credit and annually
thereafter.
(d) If the proposed beneficiary of a Letter of Credit will not accept any
Bank as the Issuer of such Letter of Credit, Agent will request a financial
institution selected by such beneficiary and acceptable to the Agent to confirm
such Letter of Credit, with Borrower to be responsible for any and all fees
incurred as a result of such confirmation.
4.2 Participation by Other Banks.
(a) Upon the issuance of a Letter of Credit, each Bank shall share the
obligation represented by each such Letter of Credit so issued, in an amount
equal to such Bank's Pro Rata Share. The participation of each Bank in each
Letter of Credit shall be automatic. Each Bank shall make available to the
Issuer, regardless of whether any Default or Event of Default shall have
occurred and is continuing, an amount equal to its respective Pro Rata Share of
each drawing on each Letter of Credit in same day or immediately available funds
not later than 11:00 a.m. New Orleans time on each Disbursement Date (as
hereinafter defined) for each such drawing. In the event that any Bank fails to
make available to the Issuer the amount of such Bank's Pro Rata Share of any
drawing on a Letter of Credit as provided herein, the Issuer shall be entitled
to
recover such amount on demand from such Bank together with interest at the daily
average Federal Funds Rate for the first two Business Days after the
Disbursement Date and thereafter at the Base Rate.
(b) The Issuer shall distribute to each Bank that has paid all amounts
payable by it under this Section 4.2 with respect to any Letter of Credit issued
by the Issuer such Bank's Pro Rata Share of all payments received by the Issuer
from the Borrower in reimbursement of drawings honored by Issuer under such
Letter of Credit when such payments are received.
4.3 Disbursements. The Issuer shall notify the Borrower and the Agent
promptly of the presentment for payment of any Letter of Credit (on the date of
presentment, if possible, and otherwise on the next Business Day, it being
agreed that such notice may be made by phone), together with notice of the date
(the with "Disbursement Date") such payment shall be made, and the Agent will
promptly notify the Banks of such matters. Subject to the terms and provisions
of such Letter of Credit, the Issuer shall make such payment to the beneficiary
(or its designee) of such Letter of Credit. Prior to 1:00 p.m. New Orleans time
on the Disbursement Date Borrower shall reimburse (or cause any Subsidiary for
which the Letter of Credit was issued to reimburse) Issuer and the Banks (to
the extent each Bank has paid its Pro Rata Share of such drawing) for all
amounts which have been disbursed under such Letter of Credit. In the event a
payment under a Letter of Credit is made without same day receipt of payment
from Borrower in accordance with this Section 4.3, such payment shall constitute
a loan (individually a "Letter of Credit Loan" and collectively, the "Letter of
Credit Loans") by Issuer and/or Banks (to the extent each Bank has paid its Pro
Rata Share of such drawing) to Borrower. All Letter of Credit Loans shall
accrue interest at the Base Rate and shall be payable on demand. The Issuer
shall distribute to each Bank that has paid all amounts payable by it under
Section 4.2 with respect to a Letter of Credit such Bank's Pro Rata share of all
interest and other amounts received by Issuer from Borrower (or any Subsidiary)
under the Letter of Credit Loan relating to such Letter of Credit.
4.4 Reimbursement. Borrower's obligation under Section 4.3 to reimburse
the Issuer and the Banks with respect to each drawing under each Letter of
Credit (including interest thereon) (to the extent each Bank has paid its Pro
Rata Share of such drawing), and each Bank's obligation to fund each drawing
shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim, or defense to payment which Borrower
or any Bank may have or have had against any Bank, the Borrower or any
beneficiary of a Letter of Credit, including, without limitation, any defense
based upon the occurrence of any Default or Event of Default, any draft, demand
or certificate or other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient, or any failure to apply or
misapplication by the beneficiary of the proceeds of any disbursement, or the
legality, validity, form, regularity, or enforceability of such Letter of
Credit.
4.5 Replacement or Collateralization of Letters of Credit.
Notwithstanding any provision contained in this Agreement or any of the Letter
of Credit Applications to the contrary, upon the occurrence of any Event of
Default under this Agreement, at Agent's option and without demand or further
notice to Borrower, an amount equal to the aggregate undrawn face amount of all
Letter(s) of Credit then outstanding shall be deemed (as between Issuer and
Borrower) to have been paid or disbursed by Issuer (notwithstanding that such
amounts may not in fact have been so paid or disbursed by Issuer), and Letter of
Credit Loan(s) to Borrower in such amounts to have been made and accepted by
Borrower, which Letter of Credit Loan(s) shall be immediately due and payable.
Each Bank shall receive its Pro Rata Share of all interest and other amounts due
with respect to such Letter of Credit Loan(s) when paid by Borrower to Issuer.
In lieu of the foregoing, at the election of Agent, Xxxxxxxx shall, upon Agent's
demand, deliver to Issuer cash or other collateral acceptable to Issuer, in its
sole and absolute discretion, having a value, as determined by Issuer, at least
equal to the aggregate undrawn face amount of all outstanding Letters of Credit
issued by Issuer. Any such collateral and/or any amounts received by Issuer
pursuant to this Section 4.5 shall be held by Issuer in a separate account at
Issuer appropriately designated as a cash collateral account in relation to this
Agreement and the Letter of Credit and retained by Issuer as collateral security
for the payment of the Borrower's Obligations. Cash amounts delivered to Issuer
pursuant to the foregoing requirements of this Section 4.5 shall be invested, at
the request and for the account of Borrower, in investments of a type and nature
and with a term acceptable to Issuer. Such amounts, including in the case of
cash amounts invested in the manner set forth above, any investment realized
thereon, shall not be used by Issuer to pay any amounts drawn or paid under or
pursuant to any Letter of Credit, but may be applied to reimburse Issuer for
drawings or payments under or pursuant to the Letters of Credit which Issuer has
paid, or if no such reimbursement is required shall be delivered to the Agent
for application to such other of Borrower's Obligations as Agent shall
determine. Any amounts remaining in any cash collateral account established
pursuant to this Section 4.5 after the payment in full of all of the Borrower's
Obligations and the expiration or cancellation of all of the Letters of Credit
shall be returned to Borrower (after deduction of Issuer's expenses, if any).
4.6 Nature of Reimbursement Obligations. Borrower shall assume all risks
of the acts, omissions, or misuse of any Letter of Credit by the beneficiary
thereof. Except to the extent of its own gross negligence or wilful misconduct,
the Issuer shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness, or legal effect
of any Letter of Credit or any document submitted by any party in connection
with the application for and issuance of a Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent, or forged;
(b) the form, validity, sufficiency, accuracy, genuineness, or legal effect
of any instrument transferring or assigning or purporting to transfer or assign
a Letter of Credit or the rights or benefits thereunder or proceeds thereof in
whole or in part;
(c) failure of the beneficiary to comply fully with conditions required
(except the presentment of any required documents, as set forth in the
applicable Letter of Credit, to the Issuer) in order to demand payment under a
Letter of Credit;
(d) errors, omissions, interruptions, or delays in transmission or delivery
of any information or messages, by mail, cable, telegraph, telex, or otherwise;
(e) any loss or delay in the transmission or otherwise of any document or
draft required in order to make a disbursement under a Letter of Credit or of
the proceeds thereof;
(f) errors in interpretation of technical terms;
(g) any misapplication by a beneficiary of the proceeds of any disbursement
under any Letter of Credit; or
(h) any consequences arising from causes beyond the control of the Issuer
including, without limitation, acts of any Governmental Authority.
None of the foregoing shall affect, impair, or prevent the vesting of any
of the rights or powers granted to the Issuer hereunder.
4.7 Indemnity.
In addition to amounts payable as elsewhere provided in this Section IV,
Borrower hereby agrees to protect, indemnify, pay and save Issuer harmless from
and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees) which Issuer may
incur or be subject to as a consequence, direct or indirect, of (i) the issuance
of the Letters of Credit, other than as a result of (y) the gross negligence or
wilful misconduct of the Issuer or (z) the Issuer's failure to pay under any
Letter of Credit after the presentation to it of a request complying with the
terms and conditions of the Letter of Credit, or (ii) the failure of the Issuer
to honor a drawing under any Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or future de jure or de
facto Governmental Authority.
SECTION 5. GENERAL PROVISIONS FOR ALL LOANS.
--------------------------------------------
5.1 Duration of Interest Periods and Selection of Interest Rates.
(a) The commencement date and duration of the initial Interest Period
for each LIBOR Loan shall be as specified in the applicable Notice of Borrowing.
Borrower shall elect the duration of each subsequent Interest Period applicable
to such LIBOR Loan, and the interest rate to be applicable during such
subsequent Interest Period (and,
Borrower shall have the option (x) in the case of any Base Rate Loan, to elect
that such Loan become a LIBOR Loan and the Interest Period to be applicable
thereto or (y) in the case of any LIBOR Loan, to elect that such Loan become a
Base Rate Loan), by giving notice of such election to the Agent by 11:00 a.m.
(New Orleans time) on the day of, in the case of the election of the Base Rate,
by 11:00 a.m. (New Orleans time) at least three (3) Business Days before, in the
case of the election of the LIBOR Rate, the end of the immediately preceding
Interest Period applicable thereto, if any; provided, however, that
notwithstanding the foregoing, in addition to and without limiting the rights
and remedies of the Agent and the Banks under Section 9 hereof, so long as any
Default or Event of Default under this Agreement has occurred and is continuing,
Borrower shall not be permitted to renew any LIBOR Loan as a LIBOR Loan or to
convert any Base Rate Loan into a LIBOR Loan. By 1:00 p.m. (New Orleans time) on
the date of receipt of each such notice of conversion or continuation of a Loan
from Borrower, Agent shall notify each Bank of the contents thereof and of such
Bank's ratable share of such Loan. A notice by Borrower under this Section
5.1(a) shall not be revocable by Borrower. All LIBOR Loans, whether by
conversion or by an advance, shall be in a principal amount of at least
$5,000,000.00 or multiples of $500,000.00 in excess thereof. All Loans which
bear interest at a particular LIBOR Rate for a particular Interest Period shall
constitute a single LIBOR Loan.
(b) If the Agent does not receive a notice of election for the
continuation of a LIBOR Loan for a subsequent Interest Period pursuant to
subsection (a) above within the applicable time limits specified therein,
Borrower shall be deemed to have elected to convert such LIBOR Loan on the last
day of the current Interest Period with respect thereto to a Base Rate Loan in
the principal amount of such expiring LIBOR Loan on such date.
(c) Notwithstanding the foregoing, the duration of each Interest
Period shall be subject to the provisions of the definition of Interest Period.
(x) Xxxxxxxx hereby authorizes the Agent to rely on telephonic,
telegraphic, telecopy, telex or written instructions believed by the Agent in
good faith to have been sent or delivered by any person identifying himself or
herself as Xxxx Xxxx XXX, Xxxxx X. Xxxxxx or Xxxx X. Xxxxx XX (or any other
person from time to time authorized to act on behalf of Borrower pursuant to a
resolution adopted by the Board of Directors of Borrower and certified by the
Secretary of Xxxxxxxx and delivered to the Agent) with respect to any request to
make a Loan or a repayment hereunder, or to convert any Base Rate Loan or LIBOR
Loan to any other type of Loan available hereunder, and on any signature which
the Agent in good faith believes to be genuine. Borrower shall be bound thereby
in the same manner as if such person was actually authorized or such signature
was genuine. Xxxxxxxx also hereby agrees to indemnify the Agent and each of the
Banks and to hold the Agent and each of the Banks harmless from and against any
and all claims, demands, damages, liabilities, losses, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
relating to or arising out of or in
connection with the acceptance of instructions for making or converting Loans or
making repayments hereunder.
5.2 Interest Rates; Interest Payments.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made until it
becomes due, at a rate per annum equal to the Base Rate. Such interest shall be
payable on all such Loans quarterly in arrears on the last day of each quarter
(or the immediate subsequent Business Day if any such last day is not a Business
Day), commencing on the first day after such Base Rate Loan is made, and at
maturity. Any overdue principal of and, to the extent permitted by law, overdue
interest on, any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the sum of two percent (2%) plus the
rate otherwise in effect for such day.
(b) Each LIBOR Loan shall bear interest on the outstanding principal
amount thereof for each Interest Period applicable thereto at a rate per annum
equal to the applicable LIBOR Rate; provided that if any LIBOR Loan or any
portion thereof shall, as a result of clause (iv) of the definition of Interest
Period, have an Interest Period of less than 30 days, such portion shall bear
interest during such Interest Period at the rate applicable to Base Rate Loans
during such period. Interest shall be payable for each Interest Period on the
last day thereof, unless the duration of the applicable Interest Period exceeds
three (3) months, in which case such interest shall be payable at the end of the
first three (3) months of such Interest Period and on the last day of such
Interest Period. Any overdue principal of and, to the extent permitted by law,
overdue interest on, any LIBOR Loan shall bear interest, payable on demand, for
each day until paid, at a rate per annum equal to the sum of two percent (2%)
plus the higher of (i) the LIBOR Rate for the immediately preceding Interest
Period applicable to such LIBOR Loan or (ii) the rate applicable to Base Rate
Loans for such day; provided that, the rate of interest shall not exceed the
maximum rate of interest permitted under La. R.S. 9:3509. Upon the earlier of
April 1, 1997 or the day that Trinity ceases to own over 50% of the outstanding
common stock of Borrower, if the Trinity Discount was used to calculate the then
effective LIBOR Rate, then the LIBOR Rate then in effect shall increase,
effective the next Business Day, to the LIBOR Rate that would have been in
effect without the Trinity Discount.
(c) The Agent shall (in accordance with this Agreement) determine each
interest rate applicable to the Loans hereunder. The Agent shall give prompt
notice to Borrower and the Banks by telecopy, telex or cable of each rate of
interest so determined, and its determination thereof shall be conclusive in the
absence of manifest error. Any change in the Base Rate shall become effective
as of the opening of business on the day on which such change in the Base Rate
shall occur.
5.3 Fees.
(a) Borrower shall pay to Agent for the account of the Banks, in
arrears, on the last day of March, June, September and December in each year
(or, if such day is not a Business Day, in the next succeeding Business Day) and
on the last day of the Revolving Credit Period, a commitment fee (the
"Commitment Fee") determined as set forth herein. The Commitment Fee shall be a
percentage of the unused Revolving Credit Commitments of all of the Banks during
the preceding fiscal quarter, or portion thereof, which unused Revolving Credit
Commitments shall be arrived at by dividing the sum of the unused Revolving
Credit Commitments of the Banks for each day of that quarter as of the close of
each day, by 90. The Commitment Fee (i) if Borrower's ratio of Average
Consolidated Total Debt for the immediately preceding fiscal quarter to
Consolidated EBITDA for the immediately preceding four (4) fiscal quarters is
greater than or equal to 2.0, shall be equal to 1/4 of .50% of the unused
Revolving Credit Commitments of all of the Banks during such fiscal quarter,
(ii) if Borrower's ratio of Average Consolidated Total Debt for the immediately
preceding fiscal quarter to Consolidated EBITDA for the immediately preceding
four (4) fiscal quarters is less than 2.0 but greater than or equal to 1.5,
shall be equal to 1/4 of .375% of the unused Revolving Credit Commitments of all
of the Banks during such fiscal quarter, (iii) if Borrower's ratio of Average
Consolidated Total Debt for the immediately preceding fiscal quarter to
Consolidated EBITDA for the immediately preceding four (4) fiscal quarters is
less than 1.5 but greater than or equal to 1.0, shall be equal to 1/4 of .25% of
the unused Revolving Credit Commitments of all of the Banks during such fiscal
quarter, or (iv) if Borrower's ratio of Average Consolidated Total Debt for the
immediately preceding fiscal quarter to Consolidated EBITDA for the immediately
preceding four (4) fiscal quarters is less than 1.0, shall be equal to 1/4 of
.175% of the unused Revolving Credit Commitments of all of the Banks during such
fiscal quarter. Upon receipt, Agent shall promptly pay each Bank its Pro Rata
Share of any such Commitment Fee paid by Borrower. The unused Revolving Credit
Commitments shall be defined as the total of (x) the Revolving Credit
Commitments of all of the Banks, minus (y) (1) all outstanding Revolving Credit
Loans, plus (2) all outstanding Letter of Credit Loans, plus (3) the aggregate
undrawn face amount of all outstanding Letters of Credit.
(b) Borrower shall pay to Agent an agreed upon annual fee. Borrower
shall pay a one time commitment fee to the Banks equal to 1/8 of 1% of the total
Revolving Credit Commitments, of which $131,250.00 has been paid and the balance
of which is payable upon execution of this Agreement.
5.4 Early Payments.
(a) Borrower may, upon notice to the Agent specifying that it is
paying its Revolving Credit Loans which are Base Rate Loans, pay without penalty
or premium such Base Rate Loans in whole at any time, or from time to time in
part in amounts aggregating $1,000,000.00, or any larger multiple of
$100,000.00; provided, however, that in no event may Borrower make a partial
payment of Base Rate Loans which results in the total outstanding Revolving
Credit Loans which are Base Rate Loans being greater than zero
but less than $1,000,000.00. Each such optional payment shall be applied to pay
the Base Rate Loans of the several Banks in proportion to their respective
Revolving Credit Commitments.
(b) Borrower may, upon at least one (1) Business Day's notice to the
Agent specifying that it is paying its Revolving Credit Loans which are LIBOR
Loans, pay without penalty or premium on the last day of any Interest Period its
LIBOR Loans to which such Interest Period applies, in whole, or in part in
amounts aggregating $1,000,000.00 or any larger multiple of $100,000.00, by
paying the principal amount to be paid together with all accrued and unpaid
interest thereon to and including the date of payment; provided, however, that
in no event may Borrower make a partial payment of LIBOR Loans which results in
the total outstanding Revolving Credit Loans which are LIBOR Loans with respect
to which a given Interest Period applies being greater than zero but less than
$1,000,000.00. Each such optional payment shall, subject to Section 5.6, be
applied to pay such LIBOR Loans of the several Banks in proportion to their
respective Revolving Credit Commitments.
(c) Upon receipt of a notice of payment pursuant to any of Sections
5.4(a) through (b) above, the Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share of such payment and such
notice shall not thereafter be revocable by Borrower.
(d) Borrower may, upon notice to the Whitney specifying that it is
paying its Swing Loan, pay without penalty or premium such Swing Loan in whole
at any time, or in part from time to time.
5.5 General Provisions as to Payments. Borrower shall make each payment
of principal of, and interest on, the Loans and of fees and all other amounts
payable hereunder, not later than 12:00 noon (New Orleans time) on the date when
due (2:00 p.m. New Orleans Time in the case of payments on the Swing Loans), in
federal or other funds immediately available in New Orleans, Louisiana, to the
Agent at its address referred to in Section 11.7. The Agent will promptly
distribute to each Bank in immediately available funds its ratable share of each
such payment received by the Agent for the account of the Banks, provided,
however, that payments of principal, interest and fees with respect to the Swing
Line Note and the Swing Loans shall be retained by Xxxxxxx for its own account.
Whenever any payment of principal of, or interest on, the Loans or of fees shall
be due on a day which is not a Business Day, the date for payment thereof shall
be extended to the next succeeding Business Day, except that in the case of
LIBOR Loans such payment dates shall be subject to the definition of Interest
Period. If the date for any payment of principal is extended by operation of
law or otherwise, interest thereon, at the then applicable rate, shall be
payable for such extended time.
5.6 Funding Losses. Notwithstanding any provision contained herein to the
contrary, if Borrower makes any payment of principal with respect to any LIBOR
Loan (pursuant to Sections 3.1, 5.4, 9 or otherwise) on any day other than the
last day of the
Interest Period applicable thereto, or if Borrower fails to borrow or pay any
LIBOR Loan after notice has been given to the Agent in accordance with Section
3.3, 5.1 or 5.4(b), Borrower shall reimburse each Bank on demand for any
resulting losses and expenses incurred by it, including, without limitation, any
losses incurred in obtaining, liquidating or employing deposits from third
parties, but excluding loss of margin for the period after any such payment,
provided that such Bank shall have delivered to Borrower a certificate as to the
amount of such losses and expenses.
5.7 Basis for Determining Interest Rate Inadequate or Unfair. If with
respect to any Interest Period, the Agent determines that either adequate and
reasonable means do not exist for ascertaining the LIBOR Rate for any Interest
Period, or it becomes impractical for Agent or any Bank to obtain funds to make
or maintain any borrowing bearing interest at the LIBOR Rate, or Agent or any
Bank shall have determined that the LIBOR Rate will not adequately and fairly
reflect the cost to Agent or any Bank of making, maintaining, or funding a
proposed borrowing that Borrower has requested to bear interest at the LIBOR
Rate, then the Agent shall forthwith give notice thereof to Borrower and the
Banks, whereupon until the Agent notifies Borrower that the circumstances giving
rise to such suspension no longer exist, (a) the obligations of the Banks to
make LIBOR Loans shall be suspended, and (b) Borrower shall repay in full the
then outstanding principal amount of each of its LIBOR Loans together with all
accrued and unpaid interest thereon, on the last day of the then current
Interest Period applicable to such Loan, or convert the then outstanding
principal amount of each of its LIBOR Loans to a Base Rate Loan on the last day
of the then current Interest Period applicable to each such LIBOR Loan.
5.8 Illegality. If, after the effective date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change therein, or
any change in the interpretation or administration thereof by any governmental
or regulatory authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
governmental or regulatory authority, central bank or comparable agency shall
make it unlawful or impossible for any Bank to make, maintain or fund its LIBOR
Loans to Borrower and such Bank shall so notify the Agent, the Agent shall
forthwith give written notice thereof to the other Banks and Borrower. If Agent
provides Borrower with such written notice, Borrower shall repay in full the
then outstanding principal amount of each of its LIBOR Loans from such Bank,
together with all accrued and unpaid interest thereon, on either (a) the last
day of the then current Interest Period applicable to such LIBOR Loan if such
Bank may lawfully continue to maintain and fund such LIBOR Loan to such day or
(b) within fifteen (15) days of the receipt of such notice if such Bank may not
lawfully continue to fund and maintain such LIBOR Loan to such day.
Concurrently with repaying each LIBOR Loan of such Bank, Borrower may borrow a
Base Rate Loan in an equal principal amount from such Bank, and, if Borrower so
elects, such Bank shall make such a Base Rate Loan to Borrower.
5.9 Increased Cost.
(a) If after the effective date hereof, the adoption of any applicable
law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank with any request or directive (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency (a "Regulatory Change"):
(A) shall subject any Bank to any tax, duty or other charge with
respect to its LIBOR Loans, its Revolving Credit Notes or its obligation to
make LIBOR Loans hereunder, or shall change the basis of taxation of
payments to any Bank of the principal of or interest on its LIBOR Loans or
any other amounts due under this Agreement in respect of its LIBOR Loans or
its obligation to make LIBOR Loans (except for taxes on or changes in the
rate of tax on the overall net income of such Bank); or
(B) shall impose, modify or deem applicable any reserve (including,
without limitation, any reserve imposed by the Board of Governors of the
Federal Reserve System), special deposit, capital or similar requirement
against assets of, deposits with or for the account of, or credit extended
or committed to be extended by, any Bank or shall, with respect to any Bank
or the Interbank Eurodollar market, impose, modify or deem applicable any
other condition affecting its LIBOR Loans, its Revolving Credit Notes or
its obligation to make LIBOR Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D, to impose a cost on or increase the cost to) such Bank of
making or maintaining any LIBOR Loan, or to reduce the amount of any sum
received or receivable by such Bank under this Agreement or under its Notes with
respect thereto, by an amount deemed by such Bank, in its good faith judgment,
to be material, and if such Bank is not otherwise fully compensated for such
increase in cost or reduction in amount received or receivable by virtue of the
inclusion of the reference to LIBOR Reserve Percentage in the calculation of the
interest rate applicable to LIBOR Loans, then, within fifteen (15) days after
notice by such Bank to Borrower together with a copy of the official notice of
the applicable change in law (if applicable) and a work sheet showing how the
change in cost or reduction or increase in amount received or receivable was
calculated (with a copy to the Agent and all of the other Banks), Borrower shall
pay for the account of such Bank as additional interest, such additional amount
or amounts as will compensate such Bank for such increased cost or reduction.
Each Bank will promptly notify Borrower, the Agent and all of the other Banks of
any event of which it has knowledge, occurring after the effective date hereof,
which will entitle such Bank to compensation pursuant to this Section. In
determining such amount or amounts, such Bank may use any reasonable averaging
and attribution methods.
(b) If any Bank demands compensation under this Section, Borrower may
at any time, upon at least three (3) Business Days' prior notice to such Bank
and the Agent, repay in full its then outstanding LIBOR Loans, as the case may
be, of such Bank, together with all accrued and unpaid interest thereon to the
date of prepayment and any funding losses and other amounts due under Section
5.6. Concurrently with repaying such LIBOR Loans of such Bank, Borrower may
borrow from such Bank a Base Rate Loan in an amount equal to the aggregate
principal amount of such LIBOR Loans, and, if Borrower so elects, such Bank
shall make such a Base Rate Loan to Borrower.
5.10 Base Rate Loans Substituted for Affected LIBOR Loans. If notice has
been given by a Bank pursuant to Section 5.7 or 5.8 or by Borrower pursuant to
Section 5.9(b) requiring LIBOR Loans of any Bank to be repaid, then, unless and
until such Bank notifies Borrower that the circumstances giving rise to such
repayment no longer apply, all Loans which would otherwise be made by such Bank
to Borrower as LIBOR Loans shall be made instead as Base Rate Loans. Such Bank
shall notify Borrower if and when the circumstances giving rise to such
repayment no longer apply.
5.11 Capital Adequacy. If, after the effective date of this Agreement, any
Bank shall have determined that the adoption of any applicable law, rule,
regulation or treaty regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or will have the effect of
reducing the rate of return on such Bank's capital in respect of any Letter of
Credit or its obligations hereunder to a level below that which such Bank could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy), then from
time to time Borrower shall pay to such Bank within fifteen (15) days of a
written demand such additional amount or amounts as will compensate such Bank
for such reduction. In determining such amount or amounts, such Bank may use
any reasonable averaging and attribution methods. Each Bank will promptly
notify the Borrower of any event occurring after the effective date hereof of
which it has knowledge which will entitle such Bank to compensation pursuant to
this section 5.11
5.12 Survival of Provisions. All provisions relating to reimbursement to
any Bank of amounts sufficient to protect the yield to such Bank with respect to
the Loans, including, without limitation, Sections 5.7, 5.8 and 5.9 hereof,
shall survive the payment of the Notes and the termination of this Agreement.
5.13 Discretion of Bank as to Manner of Funding. Notwithstanding any
provision contained in this Agreement to the contrary, each of the Banks shall
be entitled to fund and maintain its funding of all or any part of its LIBOR
Loans in any manner it elects, it being understood, however, that for purposes
of this Agreement all
determinations hereunder (including, without limitation, the determination of
each Bank's funding losses and expenses under Section 5.6) shall be made as if
such Bank had actually funded and maintained each LIBOR Loan through the
purchase of deposits having a maturity corresponding to the maturity of the
applicable Interest Period relating to the applicable LIBOR Loan and bearing an
interest rate equal to the applicable LIBOR Rate.
5.14 Computation of Interest. Interest on Base Rate Loans hereunder shall
be computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day). Interest on
LIBOR Loans shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed, calculated as to each Interest Period from
and including the first day thereof but excluding the last day thereof.
SECTION 6. PRECONDITIONS TO LOANS AND LETTERS OF CREDIT.
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6.1 Initial Revolving Credit Loan, Initial Swing Loan or Letter of Credit.
Notwithstanding any provision contained herein to the contrary, none of the
Banks shall have any obligation to make the initial Revolving Credit Loan
hereunder, Xxxxxxx shall have no obligation to make the initial Swing Loan
hereunder, and the Banks shall have no obligation to issue a Letter of Credit
hereunder unless the Agent shall have received on the effective date hereof:
(a) This Agreement and the Notes, each executed by a duly authorized
officer or Borrower;
(b) The Continuing Guarantee by each Subsidiary (other than Offshore),
each executed by a duly authorized officer of such Subsidiary;
(c) A copy of resolutions of the Board of Directors of Xxxxxxxx, duly
adopted, which authorize the execution, delivery and performance of this
Agreement, the Notes, the Letter of Credit Application(s) and the other
Transaction Documents delivered at or prior to the closing, certified by the
Chief Executive Officer and the Secretary or an Assistant Secretary of Borrower;
(d) A copy of resolutions of the Board of Directors of each
Subsidiary, duly adopted, which authorize the execution, delivery and
performance of the Continuing Guarantee and the Letter of Credit Application(s)
executed by such Subsidiary (other than Offshore), certified by the Chief
Executive Officer and the Secretary or an Assistant Secretary of such
Subsidiary;
(e) An incumbency certificate, executed by the Secretary or an
Assistant Secretary of Xxxxxxxx, which shall identify by name and title and bear
the signatures of all of the officers of Borrower executing any of the
Transaction Documents delivered at or prior to the closing;
(f) An incumbency certificate, executed by the Secretary or an
Assistant Secretary of each Subsidiary (other than Offshore), which shall
identify by name and title and bear the signatures of the officer of such
Subsidiary executing the Continuing Guarantee of such Subsidiary delivered at or
prior to the closing;
(g) An opinion of XxXxxxxxxx Xxxxxxxx Xxxx, a Professional Limited
Liability Company special counsel for Borrower and the Subsidiaries relating to
the Transaction Documents and such other matters as the Banks may reasonably
require and satisfactory in form and substance to the Agent;
(h) Payment of Agent's costs and expenses as provided for in Section
11.3 and payment to Agent of the fees required under Sections 5.3(a) and (b)
herein; and
(i) All documents executed or submitted pursuant hereto by or on
behalf of Borrower of any of its Subsidiaries shall be satisfactory in form and
substance to the Agent and its counsel; and the Agent and its counsel shall have
received all information, approvals, opinions, documents or other instruments as
the Agent or its counsel may reasonably request.
Any one or more of the conditions set forth above which have not been
satisfied by Borrower on or prior to the effective date hereof shall not be
deemed permanently waived unless Agent and the Banks shall waive the same in a
writing which expressly states that the waiver is permanent, and, in all cases
in which the waiver is not stated to be permanent, Agent and the Banks may at
any time subsequent thereto insist upon compliance and satisfaction of any such
condition as a condition to any new Revolving Credit Loan advance and/or to the
requested conversion of any interest rate on any outstanding Loan hereunder, and
Xxxxx shall have no obligation to make any such advance or to convert any such
interest rate until all such conditions have been satisfied.
6.2 All Loans. Notwithstanding any provision contained herein to the
contrary, none of the Banks shall have any obligation to make any further
Revolving Credit Loan hereunder or to convert any Loan to a LIBOR Loan or to
extend any LIBOR Loan for a new Interest Period, and Xxxxxxx shall have no
obligation to make any further Swing Loan hereunder, unless:
(a) With respect to any new Revolving Credit Loan advance, the Agent
shall have received a Borrowing Notice for such Revolving Credit Loan as
required by Section 3.3;
(b) With respect to any conversion of a Loan to or continuation of
any Loan as a LIBOR Loan, the Agent shall have received the notice for such
conversion or continuation as required by Section 5.1;
(c) On the date of and immediately after giving effect to such
Revolving Credit Loan, such Swing Loan or such interest rate conversion or
extension, no Default or Event of Default under this Agreement shall have
occurred and be continuing;
(d) No change in the Properties, assets, liabilities, business,
operations, prospects, income or condition (financial or otherwise) of Borrower
and its Subsidiaries taken as a whole and having a Material Adverse Effect shall
have occurred since the effective date of this Agreement and be continuing; and
(e) Except for subsequent changes consented to by the Required Banks
after the effective date hereof, all of the representations and warranties of
Borrower contained in Section 7 of this Agreement (other than the
representations and warranties relating to Trinity) and in the other Transaction
Documents shall be true and correct in all material respects on and as of the
date of such Revolving Credit Loan, such Swing Loan or such interest rate
conversion or continuation as if made on and as of the date of such Revolving
Credit Loan, such Swing Loan or such interest rate conversion or continuation.
Each request for a Revolving Credit Loan by Borrower hereunder, each
request for a Swing Loan by Borrower hereunder and each request by Borrower to
convert any Loan to or continue any Loan as a LIBOR Loan shall be deemed to be a
representation and warranty by Borrower on the date of such Revolving Credit
Loan, such Swing Loan or such conversion or continuation, as the case may be, as
to the facts specified in clauses (c), (d) and (e) of this Section 6.2.
6.3 Letters of Credit. Notwithstanding any provision contained herein to
the contrary, Issuer shall have no obligation to issue any Letter of Credit
after the effective date hereof unless:
(a) Issuer shall have received a Letter of Credit Request for such
Letter of Credit as required by Section 4.1(a);
(b) Issuer shall have received a Letter of Credit Application for such
Letter of Credit as required by Section 4.1(a), duly executed by an authorized
officer of Borrower and of a Subsidiary (if such Letter of Credit is for the
account of such Subsidiary) as account party;
(c) Borrower shall have complied with all of the procedures and
requirements set forth in Section 4.1;
(d) On the date of and immediately after the issuance of such Letter
of Credit, no Default or Event of Default under this Agreement shall have
occurred and be continuing;
(e) No change in the Properties, assets, liabilities, business,
operations, prospects, income or condition (financial or otherwise) of Borrower
and its Subsidiaries taken as a whole and having a Material Adverse Effect shall
have occurred since the effective date of this Agreement and be continuing;
(f) Except for subsequent changes consented to by the Required Banks
after the effective date hereof, all of the representations and warranties of
Borrower contained in Section 7 of this Agreement (other than the
representations and warranties relating to Trinity) and in the other Transaction
Documents shall be true and correct in all material respects on and as of the
date of the issuance of such Letter of Credit as if made on and as of the date
of the issuance of such Letter of Credit;
(g) Issuer shall have no obligation to issue any Letter of Credit for
the account of Offshore unless (i) Offshore shall have funded one or more loans
to Borrower which in the aggregate are equal to no less than the face amount of
all Letters of Credit issued for the account of Offshore (collectively, the
"Reserves Loan") pursuant to documents satisfactory to Agent and (ii) Agent
shall have received an opinion of counsel for Offshore acceptable to Agent
relating to such loan and such loan documents satisfactory in form and substance
to Agent; and
(h) Bank shall have received such other documents, certificates and
agreements as it may reasonably request.
Each request for the issuance of a Letter of Credit by Borrower hereunder shall
be deemed to be a representation and warranty by Borrower on the date of the
issuance of such Letter of Credit as to the facts specified in clauses (d), (e)
and (f) of this Section 6.3.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
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Borrower hereby represents and warrants to each of the Banks that:
7.1 Corporate Existence and Power. Borrower and each Subsidiary: (a) is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization; (b) has all requisite powers and all
governmental and regulatory licenses, authorizations, consents and approvals
required to carry on its business as now conducted; and (c) is qualified to
transact business as a foreign entity in, and is in good standing under the laws
of, all states in which it is required by applicable law to maintain such
qualification and good standing except for those states in which the failure to
qualify or maintain good standing could not reasonably be expected to have a
Material Adverse Effect.
7.2 Corporate Authorization. The execution, delivery and performance by
Xxxxxxxx of this Agreement, the Notes, the Letter of Credit Application(s) and
the other Transaction Documents are within the corporate powers of Borrower and
have been duly authorized by all necessary corporate action.
7.3 Binding Effect. This Agreement, the Notes and the other Transaction
Documents executed contemporaneously with the execution of this Agreement have
been duly executed and delivered by Borrower and constitute the legal, valid and
binding obligations of Borrower enforceable in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy, insolvency or
other similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and the Letter of Credit Application(s) and
any future Transaction Documents not executed contemporaneously with the
execution of this Agreement, when executed and delivered in accordance with this
Agreement, will constitute the legal, valid and binding obligations of Borrower
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
7.4 Financial Statements. Borrower has furnished each of the Banks with
the following financial statements: (1) the consolidated balance sheets and
statements of income, retained earnings and cash flows of Borrower and its
Subsidiaries as of March 31, 1996, all certified by Xxxxxxxx's independent
certified public accountants, which financial statements have been prepared as
determined in accordance with GAAP consistently applied; and (2) unaudited
consolidated balance sheets and statements of income, retained earnings and cash
flows of Borrower and its Subsidiaries as of June 30, 1996, certified by the
Vice President of Borrower as being true and correct to the best of his
knowledge and as being prepared in accordance with standard accounting practices
of the Borrower and its Subsidiaries consistently applied. Borrower further
represents and warrants to each of the Banks that: (1) said balance sheets and
their accompanying notes fairly present the condition, respectively, of Borrower
and its Subsidiaries as of the dates thereof; (2) there has been no material
adverse change in the condition or operation, financial or otherwise, of
Borrower or any of its Subsidiaries since June 30, 1996; and (3) neither
Borrower nor any Subsidiaries had, as of the respective dates of such financial
statements, any material direct or contingent liabilities which are not
disclosed on said financial statements or the notes thereto (to the extent such
disclosure is required by GAAP).
7.5 Litigation. There is no action, proceeding or claim pending or, to
the knowledge of Borrower, threatened against Borrower or any Subsidiary before
any court, arbitrator or any governmental, regulatory or administrative body,
agency or official (including, but not limited to, any ERISA plan administrator)
which, if adversely determined against Borrower or any Subsidiary, could
reasonably be expected to have a Material Adverse Effect or which would need to
be disclosed, as determined in accordance with GAAP, in Borrower's or any
Subsidiary's financial statements. Neither Borrower nor any Subsidiary is in
default with respect to any order, writ, injunction, decision or decree of any
court, arbitrator or any governmental, regulatory or administrative body, agency
or official, a default under which could reasonably be
expected to have a Material Adverse Effect. As of the effective date hereof,
there are no outstanding judgments against Borrower or any Subsidiary.
7.6 ERISA. Borrower and each Subsidiary are in compliance in all material
respects with the applicable provisions of ERISA and the Code (pertaining to any
Pension Plan), and have not engaged in, or permitted to exist or occur, any
condition, event or transaction which could result in the incurrence by Borrower
or any Subsidiary or ERISA Affiliate of any liability, fine or penalty which
would have a Material Adverse Effect.
7.7 Tax Payment. There is no proposed, asserted or assessed tax
deficiency against Borrower or any of its Subsidiaries which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
7.8 Subsidiaries. Borrower has no Subsidiaries other than as identified
on Schedule 7.8 attached hereto, as the same may from time to time be amended,
modified or supplemented as provided herein. The capital stock of each
Subsidiary is duly authorized, validly issued and fully paid and nonassessable
and is owned solely by Borrower. Except as disclosed on Schedule 7.8 attached
hereto, neither Borrower nor any of its Subsidiaries, individually or
collectively, owns or holds, directly or indirectly, any capital stock or equity
security of, or any equity interest in, any corporation or business other than
Borrower's Subsidiaries. Borrower may at any time amend, modify or supplement
Schedule 7.8 by notifying the Agent in writing of any changes thereto, including
any formation, acquisition, merger or liquidation of Subsidiaries or any change
in the capitalization of any Subsidiary, in each case, in accordance with the
terms of this Agreement and provided that any such new Subsidiary shall, within
thirty (30) days of the creation or acquisition of such Subsidiary, execute and
deliver to Agent for the benefit of all the Banks a Continuing Guarantee in form
of Exhibit C annexed hereto and made a part hereof.
7.9 Compliance With Other Instruments; None Burdensome. Neither Borrower
nor any Subsidiary is a party to any contract or agreement or subject to any
charter or other corporate or other restriction which could have a Material
Adverse Effect and which is not disclosed on Borrower's or any Subsidiary's
financial statements heretofore submitted to the Banks; none of the execution
and delivery by Borrower and the Subsidiaries of the Transaction Documents, the
consummation of the transactions therein contemplated, the consummation of the
Consolidation Transactions, the execution and delivery by Borrower of the
Separation and Related Agreements, or the consummation of the transactions
therein contemplated, has violated or will violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on Borrower or any
Subsidiary, or any of the provisions of Borrower's or any Subsidiary's
Certificate of Incorporation or Bylaws or any of the provisions of any
indenture, agreement, document, instrument or undertaking to which Borrower or
any Subsidiary is a party or subject, or by which it or its Property is bound,
or conflict with or constitute a default thereunder or result in the creation or
imposition of any Lien pursuant to the terms of any such indenture, agreement,
document, instrument or undertaking (other than in
favor of the Agent and/or the Banks pursuant to the Transaction Documents). No
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with, or exemption by, any Governmental Authority, or
any other Person is required to authorize, or is required in connection with,
the execution, delivery or performance of, or the legality, validity, binding
effect or enforceability of, any of the Transaction Documents that has not
already been obtained.
7.10 Other Debt, Guarantees, Capitalized Leases. Except as disclosed on
Schedule 7.10 attached hereto as of the effective date of this Agreement, and
except for Debt incurred or made on or after the effective date hereof as
permitted under Section 8.2(a) and the other provisions of this Agreement,
neither Borrower nor any Subsidiary of Borrower is a borrower, guarantor or
obligor with respect to any Debt or Guarantees.
7.11 Labor Matters. Neither Borrower nor any Subsidiary is a party to any
labor dispute which could reasonably be expected to have a Material Adverse
Effect. There are no strikes or walkouts relating to any labor contract to
which Borrower or any Subsidiary is subject which could reasonably be expected
to have a Material Adverse Effect. Hours worked and payments made to the
employees of Borrower and its Subsidiaries have not been in violation of the
Fair Labor Standards Act or any other applicable law dealing with such matters
which could reasonably be expected to have a Material Adverse Effect. Except as
described on Schedule 7.11 attached hereto, all payments due from Borrower or
any Subsidiary, or for which any claim may be made against any of them, in
respect of wages, employee health and welfare insurance and/or other benefits
have been paid or accrued as a liability on their respective books as determined
in accordance with GAAP.
7.12 Title to Property. Borrower and each Subsidiary has good recordable
and marketable title in fee simple to or valid leasehold interests in all of the
shipyards and other property listed on Schedule 7.12 attached hereto, has good
recordable and marketable title in fee simple to or valid leasehold interests in
all its other real (immovable) property, and has good title to or valid
leasehold interests in all its other property (other than property held under
Capital Leases) material to its business and none of such property is subject to
any Lien other than Permitted Liens.
7.13 Regulation U. Borrower is not engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U of The
Board of Governors of the Federal Reserve System, as amended) and no part of the
proceeds of any Loan will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately (i) to purchase or carry margin stock or
to extend credit to others for the purpose of purchasing or carrying margin
stock, or to refund or repay indebtedness originally incurred for such purpose
or (ii) for any purpose which entails a violation of, or which is inconsistent
with, the provisions of any of the Regulations of The Board of Governors of the
Federal Reserve System, including, without limitation, Regulations G, U, T or X
thereof, as amended. If requested by any of the Banks, Borrower shall furnish
to the
Agent a statement in conformity with the requirements of Federal Reserve
Form U-1 referred to in Regulation U.
7.14 Investment Company Act of 1940: Public Utility Holding Company Act of
1935. Borrower is not an "investment company" as that term is defined in, and is
not otherwise subject to regulation under, the Investment Company Act of 1940,
as amended. Borrower is not a "holding company" as that term is defined in, and
is not otherwise subject to regulation under, the Public Utility Holding Company
Act of 1935, as amended.
7.15 Patents, Licenses, Trademarks, Etc. Borrower and each of its
Subsidiaries have all permits, certificates, licenses (including patent and
copyright licenses), approvals and other authorizations required in connection
with the operation of their businesses, except those which the failure to have
could not reasonably be expected to have a Material Adverse Effect. There is no
pending or, to Xxxxxxxx's actual knowledge, threatened litigation, or
arbitration in which it is alleged that Borrower or any Subsidiary has violated
or breached any patents, licenses, trademarks, trademark rights, trade names,
trade name rights and copyrights which could reasonably be expected to have a
Material Adverse Effect.
7.16 Environmental and Safety and Health Matters. Except as disclosed on
Schedule 7.16 attached hereto: (i) the operations of Borrower and each
Subsidiary comply in all respects with (A) all applicable lawfully promulgated,
enacted, entered or finalized Environmental Laws and (B) all applicable lawfully
promulgated, enacted, entered or finalized Occupational Safety and Health Laws,
which the failure to comply with could reasonably be expected to have a Material
Adverse Effect; (ii) none of the operations of Borrower or any Subsidiary are
subject to any Environmental Claim or any judicial, governmental, regulatory or
administrative proceeding alleging the violation of any Occupational Safety and
Health Law, which, if adversely determined, could reasonably be expected to have
a Material Adverse Effect; (iii) to Borrower's actual knowledge, none of the
operations of Borrower or any Subsidiary is the subject of any material federal
or state investigation evaluating whether any remedial action is needed to
respond to any unsafe or unhealthful condition at any premises of Borrower or
such Subsidiary; (iv) neither Borrower nor any Subsidiary has filed any notice
under any Environmental Law or Occupational Safety and Health Law (pertaining to
a matter which has not been resolved) reporting (A) any past or present
spillage, disposal or Release into the environment of, or treatment, storage or
disposal of, any Hazardous Substance or any other hazardous, toxic or dangerous
waste, substance or constituent or other substance which could reasonably be
expected to have a Material Adverse Effect, or (B) any unsafe or unhealthful
condition at any premises of Borrower or such Subsidiary which could reasonably
be expected to have a Material Adverse Effect; and (v) neither Borrower nor any
Subsidiary has to its actual knowledge any contingent liability which could
reasonably be expected to have a Material Adverse Effect in connection with (A)
any spillage, disposal or Release into the environment of, or otherwise with
respect to, any Hazardous Substances or any other hazardous, toxic or dangerous
waste, substance or
constituent or other substance or (B) any unsafe or unhealthful environmental
condition at any premises of Borrower or such Subsidiary.
7.17 Investments. Except as disclosed on Schedule 7.17 attached hereto
neither Borrower nor any Subsidiary has any Restricted Investments.
7.18 No Default. No Default or Event of Default under this Agreement has
occurred and is continuing and no event has occurred which with the giving of
notice or the passage of time would constitute a Default or an Event of Default.
There is no existing default or event of default (and no event has occurred
which with the giving of notice or the passage of time would constitute a
default or an event of default) under or with respect to any indenture,
contract, agreement, lease or other instrument to which Borrower or any
Subsidiary is a party or by which Borrower, any Subsidiary or any Property of
Borrower or any Subsidiary is bound or affected, a default under which could
reasonably be expected to have a Material Adverse Effect. Neither Borrower nor
any Subsidiary of Borrower is in violation of any applicable statute, law, rule,
regulation or ordinance of the United States of America, of any state, city,
town, municipality, county or of any other jurisdiction, or of any agency
thereof, a violation of which could reasonably be expected to have a Material
Adverse Effect.
7.19 No Burdensome Restrictions. No agreement or obligation of Borrower or
any of its Subsidiaries in effect on the effective date hereof and no statute,
law, rule, regulation or ordinance of the United States of America, of any
state, city, town, municipality, county or of any other jurisdiction, or of any
agency thereof, on the effective date hereof materially adversely affects
Borrower or any Subsidiary, or insofar as Borrower may reasonably foresee may
have an Material Adverse Effect.
7.20 Government Contracts. Neither Borrower, any Subsidiary nor Trinity
has ever been barred from contracting (as a first tier or any level of
subcontractor) for or bidding on any contract with or for any U. S. Governmental
Authority (each a "Government Contract" and collectively, the "Government
Contracts") or had a Government Contract canceled or terminated for default by
Borrower, Trinity or any Subsidiary, as the case may be. Neither Borrower, any
Subsidiary nor Trinity is currently barred from (or has received notice that it
is under investigation with respect to a possible bar or may be barred from)
bidding on or entering into any Government Contract. None of Borrower's or any
Subsidiary's current or backlogged Government Contracts have been forfeited or
canceled for the convenience of any Governmental Authority or for the default of
the Borrower, any Subsidiary or Trinity, as the case may be. Neither the
Borrower, any Subsidiary nor Trinity has been given notice (i) that any such
contract may be or will be canceled for the convenience of any Governmental
Authority or a default by Borrower, Trinity or any Subsidiary, as the case may
be, (ii) that a major Borrower, Trinity or any Subsidiary program or contract
will be eliminated or substantially reduced or suspended, (iii) requiring or
resulting in, loss of use or substantial impairment or interference of use by
Borrower or any Subsidiary, as the case may be, of any facilities owned by any
Governmental Authority, or (iv) that any relevant budget authority or
contract authority has been exceeded with respect to any material Government
Contract which in any such case is likely to have a Material Adverse Effect.
Neither the Borrower nor any Subsidiary has had to absorb cost overruns on any
Government Contracts. Neither the Borrower nor any Subsidiary anticipates
incurring cost overruns on any Government Contracts which would have a Material
Adverse Effect.
7.21 Disclosure. Neither this Agreement nor any of the Exhibits or
Schedules hereto nor any certificate or other data furnished to the Agent or any
of the Banks in writing by or on behalf of Borrower or any Subsidiary either in
connection with the transactions contemplated by this Agreement or in connection
with the Initial Offering, contains any untrue or incorrect statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein or therein not misleading.
7.22 Assumed Trinity Indebtedness and the Intercompany Note. The Assumed
Trinity Indebtedness and Intercompany Note have been paid and satisfied in full.
7.23 Initial Offering. The proceeds from the Initial Offering which were
payable to Borrower were used to pay income tax liabilities of Borrower with the
balance used to pay the Borrower's Indebtedness to the Banks.
7.24 Separation and Related Agreements. The Separation and Related
Agreements and the Non-Competition Agreement are in force and effect.
SECTION 8. COVENANTS.
---------------------
8.1 Affirmative Covenants of Borrower. Borrower covenants and agrees
that, so long as (i) any of the Banks has any obligation to make any Loan
hereunder or to issue any Letter of Credit hereunder, (ii) any Letter of Credit
remains outstanding or (iii) any of Borrower's Obligations (excluding any
continuing indemnity obligations beyond the Term of this Agreement or any
earlier termination hereof) remain unpaid:
(a) Information. Borrower will deliver to each of the Banks:
(i) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of Borrower, consolidated balance sheets
of Borrower and its Subsidiaries as of the end of such fiscal year and the
related consolidated statements of income, stockholders equity and cash
flows for such fiscal year, setting forth in each case, in comparative
form, the figures for the previous fiscal year, all such financial
statements to be prepared as determined in accordance with GAAP and
reported on by and accompanied by the unqualified opinion of independent
certified public accountants of nationally recognized standing selected by
Xxxxxxxx, together with (1) a certificate from such accountants to the
effect that, in making the examination necessary for the signing of such
annual audit report, such accountants have not become aware of any Default
or Event of Default that has occurred and is continuing, or, if such
accountants have become
aware of any such event, describing it and the steps, if any, being taken
to cure it (such accountants, however, shall not be liable to anyone by
reason of their failure to obtain knowledge of any Default or Event of
Default which would not be disclosed in the course of an audit conducted in
accordance with generally accepted auditing standards) and (2) computations
evidencing Borrower's compliance with the financial covenants contained
in Sections 8.1(m)(i) through (v) of this Agreement as calculated on a
consolidated basis for Borrower and its Subsidiaries;
(ii) as soon as available and in any event within forty-five (45) days
after the end of each of the first three (3) fiscal quarters of each fiscal
year of Borrower, consolidated balance sheets of Borrower and its
Subsidiaries as of the end of such fiscal quarter and the related
consolidated statements of income, retained earnings and cash flows for
such fiscal quarter and for the portion of Borrower's fiscal year ended at
the end of such fiscal quarter, setting forth in each case in comparative
form, the figures for the corresponding fiscal quarter and the
corresponding portion of Borrower's previous fiscal year, all in reasonable
detail;
(iii) promptly upon transmission thereof, copies of all such financial
statements, proxy statements, notices and reports as Borrower or any
Subsidiary shall send to its stockholders and copies of all registration
statements (without exhibits) and all reports which Borrower or any
Subsidiary files with the Securities and Exchange Commission (or any
governmental body or agency succeeding to the functions of the Securities
and Exchange Commission);
(iv) simultaneously with the delivery of each set of financial
statements referred to in clauses (i) and (ii) above, a certificate of the
principal financial officer of Borrower in the form attached hereto as
Exhibit G and incorporated herein by reference, accompanied by supporting
financial work sheets where appropriate, (A) evidencing Borrower's
compliance with the financial covenants contained in Sections 8.l(m)(i)
through (v) of this Agreement as calculated on a consolidated basis for
Borrower and its Subsidiaries, (B) stating whether there exists on the date
of such certificate any Default or Event of Default and, if any Default or
Event of Default then exists, setting forth the details thereof and the
action which Borrower is taking or proposes to take with respect thereto,
(C) certifying that all of the representations and warranties of Borrower
contained in this Agreement, as the same shall have been from time to time
updated by Borrower in writing to Agent (provided such updating shall not
relieve Borrower from its obligation to comply with all covenants contained
herein), are true and correct in all material respects on and as of the
date of such certificate as if made on the date of such certificate, and
(D) stating the aggregate remaining value of the firm shipbuilding
contracts of Borrower and its Subsidiaries (excluding intercompany
contracts (but including such barge construction and related work to be
subcontracted from Trinity under the Separation and Related Agreements) and
excluding unexercised options or rights under contracts pursuant to which
the
other contracting party(s) may require additional performance by the
Borrower or any Subsidiary);
(v) promptly upon receipt thereof, any reports submitted to Borrower
or any Subsidiary (other than reports previously delivered pursuant to
Sections 8.l(a)(i) and (ii) above) by independent accountants in connection
with any annual, interim or special audit made by them of the books of
Borrower or any Subsidiary;
(vi) as soon as possible and in any event within 45 days after the end
of each fiscal quarter, a computation of the ratio of Average Consolidated
Total Debt for the immediately preceding fiscal quarter to Consolidated
EBITDA for the immediately preceding four (4) fiscal quarters; and
(vii) with reasonable promptness, such further information regarding
the business, affairs and financial condition of Borrower or any Subsidiary
as Bank may from time to time reasonably request.
Each of the Banks is hereby authorized to deliver a copy of any
financial statement or other information made available by Borrower or any
Subsidiary to any regulatory authority having jurisdiction over such Bank,
pursuant to any request therefor.
(b) Payment of Indebtedness. Borrower will, and it will cause each of
its Subsidiaries to pay and discharge any and all Indebtedness payable or
Guaranteed by Borrower or such Subsidiary, as the case may be, and any interest
or premium thereon, when due in accordance with the agreement, document or
instrument relating to such Indebtedness or Guarantee, provided, however, that
neither Borrower nor any Subsidiary shall be required to pay any such
Indebtedness or Guarantee (excluding Borrower' s Obligations) which is being
contested in good faith and by appropriate proceedings being diligently
conducted and for which provision in accordance with GAAP has been made, except
that Borrower or such Subsidiary of Borrower, as the case may be, shall pay or
cause to be paid any such Indebtedness or Guarantee forthwith upon the
commencement of proceedings to foreclose any Lien which is attached as security
therefor, unless such foreclosure is stayed by the filing of an appropriate
bond.
(c) Maintenance of Books and Records, Consultations and Inspections.
Borrower will, and it will cause each of its Subsidiaries to, maintain books and
records as determined in accordance with GAAP and in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities. Borrower will, and it will cause each of its
Subsidiaries to, permit the Agent and each of the Banks (and any Person
appointed by the Agent or any of the Banks to whom the Borrower does not
reasonably object) to discuss the affairs, finances and accounts of Borrower and
each Subsidiary with the officers of Borrower and each Subsidiary and their
independent public accountants, all at such reasonable times and as often as the
Agent or any of the Banks may from time to time reasonably request.
Subject to any confidentiality and/or security clearance restrictions applicable
to Borrower's or any Subsidiary's records, Borrower will also permit, and will
cause each Subsidiary to permit, inspection of its Properties, books and records
by the Agent during
normal business hours and at other reasonable times. Agent may be accompanied by
representatives of any of the Banks during any such inspections. Xxxxxxxx will
reimburse the Agent upon demand for all costs and expenses incurred by the Agent
in connection with any such inspection conducted by the Agent while any Default
or Event of Default under this Agreement has occurred and is continuing. A
representative of Borrower may be present during any such inspection, provided
that a particular representative's availability or unavailability shall not
inhibit or delay such inspection. Borrower shall permit the Agent to communicate
directly with Xxxxxxxx's independent public accountants and to discuss the
affairs, finances and accounts of the Borrower and the Subsidiaries at such
reasonable times and intervals and to such reasonable extent as the Agent may
request. A representative of Borrower may be present and/or participate in any
such communication with Xxxxxxxx's accountants, provided that a particular
representative's availability or unavailability shall not inhibit or delay such
communication.
(d) Payment of Taxes. Borrower will, and it will cause each of its
Subsidiaries to, duly file all federal, state and local income tax returns and
all other tax returns and reports of Borrower or such Subsidiary, as the case
may be, which are required to be filed and duly pay and discharge promptly all
taxes, assessments and other governmental charges imposed upon it or any of its
Property; provided, however, that neither Borrower nor any Subsidiary shall be
required to pay any such tax, assessment or other governmental charge the
payment of which is being contested in good faith and by appropriate proceedings
being diligently conducted and for which adequate provision as determined in
accordance with GAAP has been made, except that Borrower or such Subsidiary, as
the case may be, shall pay or cause to be paid all such taxes, assessments and
governmental charges forthwith upon the commencement of proceedings to foreclose
any Lien which is attached as security therefor, unless such foreclosure is
stayed by the filing of an appropriate bond.
(e) Payment of Claims. Borrower will, and it will cause each of its
Subsidiaries to, promptly pay and discharge (i) all trade accounts payable in
accordance with usual and customary business practices and (ii) all claims for
work, labor or materials which if unpaid might become a Lien upon any of its
Property or assets; provided, however, that neither Borrower nor any Subsidiary
shall be required to pay any such account payable or claim the payment of which
is being contested in good faith and by appropriate proceedings being diligently
conducted and for which adequate provision as determined in accordance with GAAP
has been made, except that Borrower or such Subsidiary, as the case may be,
shall pay or cause to be paid all such accounts payable and claims forthwith
upon the commencement of proceedings to foreclose any Lien which is attached as
security therefor, unless such foreclosure is stayed by the filing of an
appropriate bond.
(f) Corporate Existence. Borrower will, and it will cause each of
its Subsidiaries to, do all things necessary to (i) preserve and keep in full
force and effect at all times its corporate or other existence and all permits,
licenses, franchises and other rights material to its business, and (ii) be duly
qualified to do business in all
jurisdictions where the nature of its business or its ownership of Property
requires such qualification except for those states in which the failure to
qualify could not reasonably be expected to have a Material Adverse Effect.
(g) Maintenance of Property. Borrower will, and it will cause each of
its Subsidiaries to, at all times, preserve and maintain all of the Property
useful and necessary in the conduct of its business in adequate working order
(taking into consideration the condition of any such Property in existence at
the time of the Initial Offering), ordinary wear and tear excepted.
(h) Compliance with Laws, Regulations, Etc. Borrower will, and it
will cause each of its Subsidiaries to, comply with any and all laws, ordinances
and governmental and regulatory rules and regulations to which Borrower or such
Subsidiary, as the case may be, is subject (including, without limitation, the
Federal Acquisition Regulations, 48 C.F.R. Chapters 1 through 68) except where
noncompliance would not have a Material Adverse Effect, and maintain any and all
licenses, permits, franchises and other governmental and regulatory
authorizations necessary to the ownership of its Properties or to the conduct of
its business, which violation or failure to obtain could reasonably be expected
to have a Material Adverse Effect.
(i) Environmental Matters. Borrower will, and it will cause each of
its Subsidiaries to, at all times comply with all requirements and agreements
contained in Section 11.4 hereof. Borrower will, and will cause each of its
Subsidiaries to, at all times comply with all Environmental Laws which the
failure to comply with could reasonably be expected to have a Material Adverse
Effect. Borrower shall give the Agent and each of the Banks prompt written
notice of (i) any Environmental Claim or any other action or investigation with
respect to the existence or potential existence of any Hazardous Substances
instituted or threatened with respect to Borrower or any Subsidiary or any of
the Properties or facilities owned, leased or operated by Borrower or any
Subsidiary that could result in liability in excess of $250,000.00 and (ii) any
condition or occurrence on any of the Properties or facilities owned, leased or
operated by Borrower or any Subsidiary which constitutes a material violation by
Borrower or any Subsidiary of any lawfully promulgated, enacted, entered or
finalized Environmental Laws or which gives rise to a reporting obligation or
requires pursuant to an order of a Governmental Authority (the "Order") removal
or remediation by Borrower or any Subsidiary under any lawfully promulgated,
enacted, entered or finalized Environmental Laws. Such notice shall in either
case be accompanied by Xxxxxxxx's plan with respect to removal or remediation
and Xxxxxxxx agrees to take all action which is required by the Order or any
lawfully promulgated, enacted, entered or finalized Environmental Law in
connection with such action, investigation, condition or occurrence in
accordance with such plan with due diligence and to fulfill the requirements of
any Order or lawfully promulgated, enacted, entered or finalized Environmental
Law as promptly as possible and in all events within the time required by any
Order. Borrower shall promptly provide the Agent and each of the Banks with
copies of all material documentation relating thereto, and such other material
information with respect to environmental matters as the Agent or any of the
Banks may reasonably request from time to time.
(j) ERISA Compliance. If Borrower, any Subsidiary or any ERISA
Affiliate shall have any Pension Plan, Borrower, such Subsidiary or such ERISA
Affiliate, as the case may be, shall comply in all respects with all
requirements of ERISA and the Code relating to such Pension Plan, with which the
failure to comply could have a Material Adverse Effect. Without limiting the
generality of the foregoing, unless Borrower shall have received the prior
written consent of the Required Banks to the contrary (which consent shall not
be unreasonably withheld), Borrower will not, and it will not cause or permit
any Subsidiary or any ERISA Affiliate to:
(i) permit any Pension Plan maintained by Borrower, any
Subsidiary or any ERISA Affiliate to engage in any nonexempt "prohibited
transaction," as such term is defined in Section 4975 of the Code which
could have a Material Adverse Effect;
(ii) permit any Pension Plan maintained by Borrower, any
Subsidiary or any ERISA Affiliate to incur any "accumulated funding
deficiency", as such term is defined in Section 302 of ERISA, 29 U.S.C. (S)
1082, whether or not waived, which could have a Material Adverse Effect;
(iii) allow the termination of any Pension Plan in a manner which
could result in the imposition of a Lien on any Property of Borrower, any
Subsidiary or any ERISA Affiliate pursuant to Section 4068 of ERISA, 29
U.S.C. (S) 1368; or
(iv) take any action which would constitute a complete or partial
withdrawal from a Multi-Employer Plan within the meaning of Sections 4203
or 4205 of Title IV of ERISA, which could have a Material Adverse Effect.
(k) Notices. Borrower will notify the Agent in writing of any of the
following within three (3) Business Days after learning of the occurrence
thereof, describing the same and, if applicable, the steps being taken by the
Person(s) affected with respect thereto:
(i) the occurrence of any Default or Event of Default under this
Agreement:
(ii) the occurrence of any default or event of default by
Borrower, any Subsidiary or any other Obligor under any note, indenture,
loan agreement, mortgage, deed of trust, security agreement, lease or other
similar agreement, document or instrument to which Borrower, any Subsidiary
or any other Obligor, as the case may be, is a party or by which it is
bound or to which it is subject which evidences or secures Indebtedness in
an outstanding principal amount of $1,000,000.00 or more in the aggregate
for all such defaulted agreements;
(iii) the institution of any litigation, arbitration proceeding
or governmental or regulatory proceeding affecting Borrower, any other
Obligor or any Subsidiary, whether or not considered to be covered by
insurance, in which
the prayer or claim for relief seeks recovery of an amount in excess of
$1,000,000.00 (or, if no dollar amount is specified in the prayer or claim
for relief, in which there is a reasonable likelihood of recovery of an
amount in excess of $1,000,000.00) or any form of equitable relief;
(iv) the entry of any judgment or decree against Xxxxxxxx, any
other Obligor or any Subsidiary which, when aggregated with any other such
judgments or decrees then entered and unsatisfied, exceed $1,000,000.00 in
the aggregate;
(v) the occurrence of a Reportable Event with respect to any
Pension Plan; the filing of a notice of intent to terminate a Pension Plan
by Borrower, any ERISA Affiliate or any Subsidiary; the institution of
proceedings to terminate a Pension Plan by the PBGC or any other Person;
the withdrawal in a "complete withdrawal" or a "partial withdrawal" as
defined in Sections 4203 and 4205, respectively, of ERISA by Xxxxxxxx, any
ERISA Affiliate or any Subsidiary from any Multi-Employer Plan; or the
incurrence of any material increase in the contingent liability of Borrower
or any Subsidiary with respect to any "employee welfare benefit plan" as
defined in Section 3(1) of ERISA which covers retired employees and their
beneficiaries;
(vi) the occurrence of any event that is reasonably likely to
have a Material Adverse Effect: and
(vii) any notices required to be provided pursuant to other
provisions of this Agreement that do not otherwise provide a time frame in
which such notice is to be provided and notice of the occurrence of such
other events as the Agent may from time to time reasonably specify.
(l) Insurance. Borrower will, and it will cause each of its
Subsidiaries to, insure all of its Property of the character usually insured by
corporations engaged in the same or similar businesses with properties in
similar geographic areas, against loss or damage of the kind customarily insured
against by such corporations, and carry adequate liability insurance and other
insurance of a kind and in amount(s) generally carried by such corporations.
All insurance required by this Section 8.1(1) shall be with insurers rated A-VII
or better by A.M. Best Company (or accorded a similar rating by another
nationally or internationally recognized insurance rating agency of similar
standing if A.M. Best Company is not then in the business of rating insurers or
rating foreign insurers) or such other insurers as may from time to time be
reasonably acceptable to the Required Banks, except to the extent that Borrower
may obtain insurance from its Subsidiary, Offshore Marine Indemnity Company, for
(i) workers compensation insurance and (ii) property and casualty insurance so
long as Reliance National Insurance Company or any other insurance company rated
A-VII or better by A.M. Best Company assumes any coverage written above
$250,000.00 on each policy written by Offshore Marine Indemnity Company. All
such insurance may be subject to reasonable deductible amounts. Borrower shall
deliver to the Agent a certificate of insurance upon the annual renewal of such
policies specifying the details of all insurance
then in effect; together with a certificate of an officer of Borrower that all
premiums then due have been paid.
(m) Financial Covenants.
(i) Minimum Consolidated Interest Coverage. Borrower will have
and maintain a Consolidated Interest Coverage Ratio for each fiscal quarter
(calculated as of the last day of each fiscal quarter) of at least 4.00 to
1.
(ii) Minimum Consolidated Debt Service Coverage. Borrower will
have and maintain a Consolidated Debt Service Coverage Ratio for each
fiscal quarter (calculated as of the last day of each fiscal quarter) of at
least 1.35 to 1.
(iii) Maximum Consolidated Funded Debt to Consolidated EBITDA.
Borrower will have and maintain a ratio of Consolidated Funded Debt as of
the end of each fiscal quarter to Consolidated EBITDA for the immediately
preceding four (4) fiscal quarters (including the fiscal quarter ending on
such date) which is less than or equal to 3.50 to 1.
(iv) Minimum Current Ratio. Borrower will at all times have and
maintain a ratio of Consolidated Current Assets to Consolidated Current
Liabilities at the end of each fiscal quarter of at least 1.25 to 1.
(v) Minimum Consolidated Tangible Net Worth. Borrower will not
permit Consolidated Tangible Net Worth at the end of any fiscal quarter to
be less than $75,000,000.00 plus 50% of Consolidated Net Income (without
giving any effect to any losses), excluding any Consolidated Net Income due
to non-cash accounting adjustments, for each fiscal quarter ending on or
after December 31, 1996 plus 50% of the net cash proceeds received by the
Borrower from any sale of stock of the Borrower or any Subsidiary (other
than the Initial Offering) through any public offering within the meaning
of the Securities Act of 1933.
(n) Further Assurances. Borrower and each Subsidiary will execute and
deliver to the Agent, at any time and from time to time, any and all further
agreements, documents and instruments, and take any and all further actions
which may be required under applicable law, or which the Agent may from time to
time reasonably request, in order to effectuate the transactions contemplated by
this Agreement and the other Transaction Documents.
(o) Accountant. Borrower shall give each of the Banks prompt notice
of any change of Xxxxxxxx's independent certified public accountants and a copy
of the Form 8-K relating thereto filed with the Securities and Exchange
Commission. Borrower shall at all times utilize independent certified public
accountants of nationally recognized standing reasonably acceptable to the
Required Banks.
(p) Subsidiaries. Borrower shall not create any Subsidiaries without
the prior written consent of Agent; provided that, the provisions of this
Section 8.1(p) shall not require the Agent's consent for the formation of
wholly-owned direct Subsidiaries of Borrower or any Subsidiary. Borrower
covenants and agrees that in the event Borrower or any Subsidiary shall create
or acquire any new Subsidiary or Subsidiaries at any time after the effective
date hereof, that Borrower shall cause each such Subsidiary to execute a
Continuing Guarantee pursuant to Section 7.8 of this Agreement.
(q) Agreements. Neither Borrower nor any Subsidiary will default
under any indenture, contract, agreement, lease or other instrument to which
Borrower or any Subsidiary is a party or by which Borrower, any Subsidiary or
any Property of Borrower or any Subsidiary is bound or affected, a default under
which could reasonably be expected to have a Material Adverse Effect.
(r) Offshore Marine Indemnity Company. Offshore shall maintain a
relationship with Reliance National Insurance Company or any other insurance
company rated A-VII or better by A.M. Best Company whereby such insurance
company will assume any coverage written above $250,000.00 on each policy
written by Offshore.
8.2 Negative Covenants of Borrower. Borrower covenants and agrees
that, so long as (i) any of the Banks has any obligation to make any Loan
hereunder or to issue any Letter of Credit hereunder, (ii) any Letter of Credit
remains outstanding or (iii) any of Borrower's Obligations remain unpaid, unless
the prior written consent of the Required Banks is obtained:
(a) Limitation on Indebtedness. Borrower will not, and it will not
cause or permit any of its Subsidiaries to, incur or be obligated on any
Indebtedness, either directly or indirectly, by way of Guarantee, suretyship or
otherwise, other than:
(i) the Borrower's Obligations to the Agent and the Banks;
(ii) the Swing Loans from Xxxxxxx;
(iii) Indebtedness existing as of the effective date hereof and
listed on Schedule 7.10 attached hereto and Indebtedness relating to the
employee benefit plans;
(iv) Indebtedness described in clause (a) or (b) of the defined term
Restricted Investment of this Agreement;
(v) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment therefor shall not at the time be required to be made in accordance
with the provisions of Section 8.1(d) or Section 8.1(e);
(vi) Indebtedness in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal and for which
adequate provision as determined in accordance with GAAP has been made so long
as execution is not levied thereunder and in respect of which Borrower or any
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceedings for review and a suspensive appeal bond in the full amount of such
judgment or award shall have been obtained by Borrower or such Subsidiary with
respect thereto;
(vii) current liabilities of Borrower or any Subsidiary of Borrower
incurred in the ordinary course of business not incurred through (A) the
borrowing of money, or (B) the obtaining of credit except for credit on an open
account basis customarily extended and in fact extended in connection with
normal purchases of goods and services;
(viii) endorsements for collection, deposits or negotiation and
warranties of products or services, in each case incurred in the ordinary course
of business;
(ix) Indebtedness in respect of performance, surety or appeal bonds
obtained in the ordinary course of Xxxxxxxx's or any Subsidiary's business and
in connection with transactions in the ordinary course of Xxxxxxxx's or any
Subsidiary's business;
(x) Indebtedness under commodity price swaps, commodity price caps and
commodity price collar and floor agreements, and similar agreements or
arrangements designed to protect against or manage fluctuations in commodity
prices with respect to any steel commodities bought and consumed in the ordinary
course of business of Borrower and its Subsidiaries in amounts and on terms
consistent with industry standard practices for hedging such future commodities
requirements of Borrower and its Subsidiaries;
(xi) Indebtedness for any permitted declared and unpaid Distributions
on Borrower's stock;
(xii) Indebtedness in respect of the Separation Agreement and Related
Agreements;
(xiii) With the consent of the Required Banks, Acquisition
Indebtedness not otherwise permitted by this Section 8.2(a);
(xiv) Indebtedness, other than Acquisition Indebtedness, not
otherwise permitted by this Section 8.2(a) in an amount not to exceed
$10,000,000.00 in the aggregate at any one time outstanding for Borrower and all
Subsidiaries of Borrower; and
(xv) Indebtedness, in an amount not to exceed $30,000,000.00 in the
aggregate at any one time outstanding for Borrower and all its Subsidiaries, in
respect
of guarantees issued in support of customer financing of down payments and other
similar amounts relating to Exim Bank or other similar construction financing,
which guarantees do not exceed 20% of the purchase price of the subject vessel.
(b) Limitation on Liens. Borrower will not, and will not cause or
permit any of its Subsidiaries to, create, incur or assume, or suffer to be
incurred or to exist, any Lien on any Property or assets of Borrower or any
Subsidiary, whether now owned or hereafter acquired, or upon any income or
profits therefrom, except for Permitted Liens.
(c) Consolidation, Merger, Sale of Assets, Dissolution, Etc. Borrower
will not, and will not cause or permit any of its Subsidiaries to, (i) directly
or indirectly, merge into or with or consolidate with any other Person or permit
any other Person to merge into or with or consolidate with it, or (ii) sell,
assign, lease, transfer, abandon or otherwise dispose of any of its Property
(including, without limitation, any shares of capital stock of a Subsidiary
owned by Borrower or another Subsidiary), except for (A) sales of inventory or
vessels in the ordinary course of business, (B) sales in the ordinary course of
business of those items excluded from the definition of Restricted Investments,
(C) sales of fixed assets having a book value in an aggregate amount not to
exceed ten percent (10%) of the book value of Borrower's total assets as of the
end of the fiscal quarter immediately preceding any such sale, so long as such
asset sales shall be sold to third party buyers in arms-length transactions on
reasonable terms and so long as the net proceeds thereof are used solely to
purchase other fixed assets which are consistent with the Company Business
within a reasonable time or to pay any principal due on the Loans, or (D) other
sales of fixed assets having a book value not to exceed $3,500,000.00 in the
aggregate in any fiscal year.
(d) Sale and Leaseback Transactions. Borrower will not, and it will
not cause or permit any of its Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby Borrower or any Subsidiary of Borrower shall in
one or more related transactions sell, transfer or otherwise dispose of any
Property owned by Borrower or any Subsidiary of Borrower and then rent or lease,
as lessee, such Property or any part thereof for a period or periods which in
the aggregate would exceed twelve (12) months from the date of commencement of
the lease term.
(e) Sale or Discount of Accounts. Borrower will not, and it will not
cause or permit any of its Subsidiaries to, sell or discount any of its
receivables (whether represented by a note, account, general intangible or
chattel paper) other than in the ordinary course of its business.
(f) Transactions with Affiliates. Except for the Separation and
Related Agreements, any transactions required thereby, and any transactions
required by the Consolidation Transactions, Borrower will not, and it will not
cause or permit any of its Subsidiaries to, enter into or be a party to any
transaction or arrangement with any Affiliate (including, without limitation,
the purchase from, sale to or exchange of Property with, or the rendering of any
service by or for, any Affiliate), except in the ordinary course of business and
pursuant to the reasonable requirements of Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to
Borrower or such Subsidiary than would be obtained in a comparable arm's length
transaction with a Person not an Affiliate.
(g) Changes in Nature of Business. Borrower will not, and it will not
cause or permit any of its Subsidiaries to, engage in any business if, as a
result, the general nature of the business which would then be engaged in by
Borrower and its Subsidiaries, considered as a whole, would be substantially
changed from the Company Business.
(h) Fiscal Year. Borrower will not, and it will not cause or permit
any of its Subsidiaries to, change its fiscal year.
(i) Distributions. Borrower will not, and it will not cause or permit
any of its Subsidiaries to, declare or incur any liability to make any
Distribution, except Distributions by any Subsidiary to Borrower.
(j) Pension Plans. Borrower will not, and it will not cause or permit
any of its Subsidiaries to, (a) permit any condition to exist in connection with
any Pension Plan which might constitute grounds for the PBGC to institute
proceedings to have such Pension Plan terminated or a trustee appointed to
administer such Pension Plan or (b) engage in, or permit to exist or occur, any
other condition, event or transaction with respect to any Pension Plan which
could result in the incurrence by Borrower, any Subsidiary or any ERISA
Affiliate of any liability, fine or penalty which could reasonably be expected
to have a Material Adverse Effect.
(k) Change in Management. Borrower will not terminate or make any
substantial change in the duties of Xxxx Xxxx XXX, without the approval of the
Required Banks.
(l) Restricted Investments. Borrower will not, and it will not cause
or permit any of its Subsidiaries to, directly or indirectly, make any
Restricted Investments.
(m) Ownership of Subsidiaries. Borrower will not cause or permit any
of its Subsidiaries to (i) authorize or issue any new types, varieties or
classes of capital stock or any bonds or debentures, subordinated or otherwise,
or any stock warrants or options, (ii) authorize or issue any additional shares
of any existing class of capital stock, (iii) declare any stock dividends or
stock splits or (iv) take any other action which could, directly or indirectly,
decrease Borrower's ownership interest in any of its Subsidiaries.
(n) Capital Expenditures. Borrower and its Subsidiaries will not
incur Capital Expenditures in excess of $12,000,000.00 in the aggregate for
Borrower and its Subsidiaries taken as a whole, in any one fiscal year.
(o) Change in Control. Borrower shall not allow any Change in Control
to occur.
(p) Operating Lease Obligations . Borrower and its Subsidiaries shall
not at any one time have Operating Lease Obligations in excess of $8,000,000.00
in the aggregate for Borrower and its Subsidiaries taken as a whole.
8.3 Use of Proceeds. Borrower covenants and agrees that (i) the
proceeds of the Revolving Credit Loans and Swing Loans will be used solely for
working capital purposes, any specific purposes permitted under this Agreement,
and other general corporate purposes of Borrower; (ii) no part of the proceeds
of any Loan will be used in violation of any applicable law or regulation; and
(iii) no part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately (A) to purchase
or carry margin stock or to extend credit to others for the purpose of
purchasing or carrying margin stock, or to refund or repay indebtedness
originally incurred for such purpose or (B) for any purpose which entails a
violation of, or which is inconsistent with, the provisions of any of the
Regulations of The Board of Governors of the Federal Reserve System, including,
without limitation, Regulations G, U, T or X thereof, as amended.
SECTION 9. EVENTS OF DEFAULT.
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If any of the following (each of the following herein sometimes called an
"Event of Default") shall occur and be continuing:
9.1 Borrower shall fail to pay any of Borrower's Obligations other than
principal or interest within five (5) Business Days after the date the same
shall first become due and payable, whether by reason of demand, maturity,
acceleration or otherwise;
9.2 (a) Borrower shall fail to pay any of Xxxxxxxx's Obligations for the
repayment of interest three (3) Business Days after the date the same shall
become due and payable, whether by reason of demand, maturity, acceleration or
otherwise;
(b) Borrower shall fail to pay any of Borrower's Obligations for the
repayment of principal as and when the same shall become due and payable,
whether by reason of demand, maturity, acceleration or otherwise;
9.3 Any representation or warranty of Borrower or any Subsidiary made in
this Agreement, in any other Transaction Document to which Borrower or any
Subsidiary is a party or in any certificate, agreement, instrument or statement
furnished or made or delivered pursuant hereto or thereto or in connection
herewith or therewith, shall prove to have been untrue or incorrect in any
material respect when made or effected;
9.4 Borrower shall fail to perform or observe any term, covenant or
provision contained in Section 8.1(l), Section 8.1(m), Section 8.2 or Section
8.3;
9.5 Borrower shall fail to perform or observe any term, covenant or
provision contained in Section 8.1(a) and any such failure shall remain
unremedied for five (5)
Business Days after the earlier of (i) notice of such default is given to
Borrower by the Agent or (ii) a Responsible Officer of Borrower obtaining
knowledge of such default;
9.6 Borrower shall fail to perform or observe any other term, covenant or
provision contained in this Agreement (other than those specified in Sections
9.1, 9.2, 9.3, 9.4 or 9.5 above or elsewhere in this Section 9) and any such
failure shall remain unremedied for thirty (30) days after the earlier of (i)
written notice of default is given to Borrower by the Agent or any of the Banks
or (ii) a Responsible Officer of Borrower obtaining knowledge of such default;
9.7 This Agreement or any of the other Transaction Documents shall at any
time for any reason cease to be in full force and effect or shall be declared to
be null and void by a court of competent jurisdiction, or if the validity or
enforceability thereof shall be contested or denied by Borrower or any
Subsidiary, or if the transactions completed hereunder or thereunder shall be
contested by Borrower or any Subsidiary or if Borrower or any Subsidiary shall
deny that it has any or further liability or obligation hereunder or thereunder.
9.8 Borrower, any Subsidiary or any other Obligor shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11 of
the United States Code or any other federal, state or foreign bankruptcy,
insolvency, receivership, liquidation or similar law, (ii) consent to the
institution of, or fail to contravene in a timely and appropriate manner, any
such proceeding or the filing of any such petition, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator or similar
official of itself, himself or herself or of a substantial part of its Property
or assets, (iv) file an answer admitting the material allegations of a petition
filed against itself in any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in writing its inability or
fail generally to pay its debts as they become due or (vii) take any corporate
or other action for the purpose of effecting any of the foregoing;
9.9 An involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i) relief
in respect of Borrower, any Subsidiary or any other Obligor, or of a substantial
part of the Property or assets of Borrower, any Subsidiary or any other Obligor,
under Title 11 of the United States Code or any other federal, state or foreign
bankruptcy, insolvency, receivership, liquidation or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator or similar official
of Borrower, any Subsidiary or any other Obligor or of a substantial part of the
Property or assets of Borrower, any Subsidiary or any other Obligor or (iii) the
winding-up or liquidation of Borrower, any Subsidiary or any other Obligor; and
such proceeding or petition shall continue undismissed for sixty (60)
consecutive days or an order or decree approving or ordering any of the
foregoing shall be entered;
9.10 Any of the Letter of Credit Applications shall at any time for
any reason cease to be in full force and effect or shall be declared to be null
and void by a court of competent jurisdiction, or if the validity or
enforceability of any of the Letter of Credit Applications shall be contested or
denied by Borrower or any Subsidiary, or if Borrower
or any Subsidiary shall deny that it has any further liability or obligation
under any of the Letter of Credit Applications or if Borrower or any Subsidiary
shall fail to comply with or observe any of the terms, provisions or conditions
contained in any of the Letter of Credit Applications;
9.11 Borrower, any Subsidiary or any other Obligor shall be declared by any
of the Banks to be in default on, or pursuant to the terms of, (1) any other
present or future obligation to such Bank(s), including, without limitation, any
other loan, line of credit, revolving credit, guaranty or letter of credit
reimbursement obligation, or (2) any other present or future agreement
purporting to convey to such Bank(s) a Lien upon any Property or assets of
Borrower, such Subsidiary, or such other Obligor, as the case may be;
9.12 The occurrence of any default or event of default under or within the
meaning of any agreement, document or instrument evidencing, securing,
guaranteeing the payment of or otherwise relating to any Indebtedness of
Borrower or any Subsidiary for borrowed money (other than the Borrower's
Obligations) having an aggregate outstanding principal balance in excess of One
Million Five Hundred Thousand Dollars ($1,500,000.00);
9.13 One or more judgments, decrees, arbitration awards or rulings
(including without limitation, rulings of the Board of Contract Appeals, the
General Accounting Office the Defense Contract Audit Agency or the appropriate
Contracting Office of the United States Navy) shall be entered against the
Borrower or any Subsidiary involving in the aggregate a liability (not paid or
fully covered by insurance) of $1,500,000.00 or more and all such judgments,
decrees, awards, and rulings shall not have been vacated, paid, discharged,
stayed or suspensively appealed within thirty days from the entry thereof;
9.14 Any of the following events shall occur with respect to any Pension
Plan (a) the institution by Borrower, any ERISA Affiliate or any Subsidiary of
steps to terminate any Pension Plan if, as a result of such termination,
Borrower, such ERISA Affiliate or such Subsidiary, as the case may be, could be
required to make a contribution to such Pension Plan, or could incur a liability
or obligation to such Pension Plan or any of its participants or beneficiaries,
in the aggregate in excess of Two Million Five Hundred Thousand Dollars
($2,500,000.00), (b) the institution by the PBGC of steps to terminate any
Pension Plan, or (c) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under Section 302 (f) of ERISA;
9.15 At any time, Borrower and its Subsidiaries fail to have firm
shipbuilding contracts (excluding intercompany contracts (but including such
barge construction and related work to be subcontracted from Trinity under the
Separation and Related Agreements) and excluding unexercised options or rights
under contracts pursuant to which the other contracting party(s) may require
additional performance by the Borrower or any Subsidiary) with an aggregate
remaining value of at least $200,000,000.00, for at least forty-five (45)
consecutive days;
9.16 If (i) Borrower or any of its Subsidiaries is debarred or suspended
from contracting (as a first tier or any level of subcontractor) for, bidding
on, or entering into a
Government Contract, or receives notice of a proposed suspension of or
disbarment from acquiring or performing a Government Contract, or (ii) if a
current or backlogged Government Contract is forfeited or terminated for the
default by Borrower or any Subsidiary, as the case may be; or
9.17 If Borrower or any Subsidiary is unable to obtain performance bonds to
secure new or proposed vessel construction contracts;
THEN, and in each such event (other than an event described in Sections
9.1, 9.2, 9.8 or 9.9), the Agent shall, if requested in writing by the Required
Banks, and may, in its sole and absolute discretion, upon the oral request of
the Required Banks, declare that the obligation of the Banks to make Loans under
this Agreement and to issue Letters of Credit under this Agreement have
terminated, whereupon such obligations of the Banks shall be immediately and
forthwith terminated, and the Agent shall, if requested in writing by the
Required Banks, and may, in its sole and absolute discretion, upon the oral
request of the Required Banks, declare the entire outstanding principal balance
of and all accrued and unpaid interest on the Notes and all of the other Loans
under this Agreement and all of the other Borrower's Obligations to be forthwith
due and payable, whereupon all of the unpaid principal balance of and all
accrued and unpaid interest on the Notes and all of the other Loans under this
Agreement and all such other Borrower's Obligations shall become and be
immediately due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by Xxxxxxxx, and
the Agent and each of the Banks may exercise any and all other rights and
remedies which they may have under any of the other Transaction Documents or
under applicable law; provided, however, that upon the occurrence of any event
described in Sections 9.1, 9.2, 9.8 or 9.9, the obligation of the Banks to make
Loans under this Agreement and to issue Letters of Credit under this Agreement
shall automatically terminate and the entire outstanding principal balance of
and all accrued and unpaid interest on the Notes and all of the other Loans
under this Agreement and all of the other Borrower's Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived
by Borrower, and the Agent and each of the Banks may exercise any and all other
rights and remedies which they may have under any of the other Transaction
Documents or under applicable law.
Agent, on behalf of the Banks, shall provide Trinity with written notice of
any Event of Default prior to declaring the Loans and all of the other
Borrower's Obligations to be forthwith due and payable as a result of such Event
of Default and notwithstanding any provision in this Agreement to the contrary,
Trinity shall have three (3) Business Days from the receipt of such notice to
cure any such Event of Default; provided that (i) the provisions of this
paragraph shall only apply so long as Trinity is the owner of at least 50% of
the outstanding shares of the common stock of Borrower, (ii) Banks shall not
have any obligation to make any Loans or to issue any Letters of Credit during
the period any Event of Default shall have occurred and is continuing, (iii)
unless Trinity cures such Event of Default during said cure period, upon the
expiration of said cure period, Agent and Xxxxx shall have the right to exercise
any and all of their rights and remedies herein provided, including, without
limitation, the right to declare the entire outstanding
principal balance of and all accrued and unpaid interest on the Notes and all of
the other Loans under this Agreement and all of the other Borrower's Obligations
to be forthwith due and payable, whereupon all of the unpaid principal balance
of and all accrued and unpaid interest on the Notes and all of the other Loans
under this Agreement and all such other Borrower's Obligations shall become and
be immediately due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by Xxxxxxxx, and
the Agent and each of the Banks may exercise any and all other rights and
remedies which they may have under any of the other Transaction Documents or
under applicable law.
SECTION 10. AGENT.
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10.1 Appointment. Xxxxxxx is hereby appointed by the Banks as Agent under
this Agreement, the Notes and the other Transaction Documents. The Agent agrees
to act as such upon the express conditions contained in this Agreement.
10.2 Powers. The Agent shall have and may exercise such powers hereunder
as are specifically delegated to the Agent by the terms of this Agreement and
the other Transaction Documents, together with such powers as are reasonably
incidental thereto. The Agent shall have no implied duties to the Banks, nor
any obligation to the Banks to take any action under this Agreement or any of
the other Transaction Documents, except any action specifically provided by this
Agreement or any of the other Transaction Documents to be taken by the Agent.
Without limiting the generality of the foregoing, the Agent shall not be
required to take any action with respect to any Default or Event of Default,
except as expressly provided in Section 9.
10.3 General Immunity. Neither the Agent nor any of its directors,
officers, employees, agents or advisors shall be liable to any of the Banks for
any action taken or not taken by it (i) with the consent or at the request of
the Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct.
10.4 No Responsibility for Loans, Recitals, Etc. Neither the Agent nor any
of its directors, officers, employees, agents or advisors shall (i) be
responsible for or have any duty to ascertain, inquire into or verify any
recitals, reports, statements, representations, warranties or representations
contained in this Agreement or any of the other Transaction Documents or
furnished pursuant hereto or thereto; (ii) be responsible for any Loans or
Letters of Credit hereunder (except in Agent's capacity as a Bank hereunder with
respect to its Pro Rata Share thereof pursuant to the terms of this Agreement
and except for the Swing Loans), (iii) be bound to ascertain or inquire as to
the performance or observance of any of the terms of this Agreement or any of
the other Transaction Documents; (iv) be responsible for the satisfaction of any
condition specified in Section 6, except receipt of items required to be
delivered to the Agent; or (v) be responsible for the validity, effectiveness,
genuineness or enforceability of this Agreement or any of the other Transaction
Documents; or (vi) be responsible for the creation, attachment or perfection of
any security interests or liens purported to be granted to the Agent or any of
the Banks pursuant to this Agreement or any of the other Transaction Documents.
The Agent shall not incur any liability by acting in reliance upon any notice,
consent, certificate, statement
or other writing (which may be a bank wire, telex, telecopy or similar writing)
believed by it to be genuine or to be signed by the proper party or parties.
10.5 Right to Indemnity. Notwithstanding any other provision contained in
this Agreement to the contrary, to the extent Borrower fails to reimburse the
Agent pursuant to Section 11.3, Section 11.4 or Section 11.5, or if any Default
or Event of Default shall occur under this Agreement, the Banks shall ratably in
accordance with their respective Pro Rata Shares of the aggregate amount of
Loans and Letters of Credit then outstanding, or if no Loans or Letters of
Credit are then outstanding, their respective Pro Rata Shares of the total
Commitments of all of the Banks, indemnify the Agent and hold it harmless from
and against any and all liabilities, losses (except losses occasioned solely by
failure of Borrower to make any payments or to perform any obligations required
by this Agreement (other than those described in Sections 11.3, 11.4 and 11.5),
the Notes, the Letter of Credit Applications or any of the other Transaction
Documents), costs and/or expenses, including, without limitation, any
liabilities, losses, costs and/or expenses arising from the failure of any Bank
to perform its obligations hereunder or in respect of this Agreement and also
including, without limitation, reasonable attorneys' fees and expenses, which
the Agent may incur, directly or indirectly, in connection with this Agreement,
the Notes or any of the other Transaction Documents, or any action or
transaction related hereto or thereto; provided only that the Agent shall not be
entitled to such indemnification for any losses, liabilities, costs and/or
expenses directly and solely resulting from its own gross negligence or willful
misconduct. This indemnity shall be a continuing indemnity, contemplates all
liabilities, losses, costs and expenses related to the execution, delivery and
performance of this Agreement, the Notes and the other Transaction Documents,
and shall survive the satisfaction and payment of the Loans, the expiration or
other termination of the Letters of Credit and the termination of this
Agreement.
10.6 Action Upon Instructions of Required Banks. The Agent agrees, upon
the written request of the Required Banks, to take any action of the type
specified in this Agreement or any of the other Transaction documents as being
within the Agent's rights, duties, powers or discretion. Notwithstanding the
foregoing, the Agent shall be fully justified in failing or refusing to take any
action hereunder, unless it shall first be indemnified to its satisfaction by
the Banks pro rata against any and all liabilities, losses, costs and expenses
(including, without limitation, attorneys' fees and expenses) which may be
incurred by it by reason of taking or continuing to take any such action, other
than any liability which may arise out of Agent's gross negligence or willful
misconduct. The Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with written instructions signed
by the Required Banks, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Banks and on all holders of
the Notes. In the absence of a request by the Required Banks, the Agent shall
have authority, in its sole discretion, to take or not to take any action,
unless this Agreement or any of the other Transaction Documents specifically
requires the consent of the Required Banks or of all of the Banks.
10.7 Reliance on Documents; Employment of Agents and Counsel. The Agent
shall be entitled to rely upon any note, notice, consent, certificate,
affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons. The Agent may
execute any of its duties as Agent hereunder by or through employees, agents,
and attorneys-in-fact and shall not be answerable to the Banks for the default
or misconduct of any such agents or attorneys-in-fact selected by it in good
faith and with reasonable care, except as to money or securities received by it
or its authorized agents. The Agent shall be entitled to advice and opinion of
legal counsel concerning all legal matters and all matters pertaining to the
duties of the Agent.
10.8 May Treat Payee as Owner. The Agent may deem and treat the payee of
any Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment or transfer thereof shall have been filed with the
Agent pursuant to Section 11.15. Any request, authority or consent of any
person, firm or corporation who at the time of making such request or giving
such authority or consent is the holder of any such Note shall be conclusive and
binding on any subsequent holder, transferee or assignee of such Note or of any
Note issued in exchange therefor.
10.9 Agent's Reimbursement. Each Bank agrees to reimburse the Agent pro
rata in accordance with its Pro Rata Share for any out-of-pocket expenses not
reimbursed by Xxxxxxxx (a) for which the Agent is entitled to reimbursement by
the Borrower under this Agreement or any of the other Transaction Documents and
(b) for any other out-of-pocket expenses incurred by the Agent on behalf of the
Banks, in connection with the preparation, execution, delivery, amendment,
modification, extension, renewal, administration and/or enforcement of this
Agreement and/or any of the other Transaction Documents.
10.10 Rights as a Bank. With respect to its commitment, the Loans made by
it and the Notes issued to it, the Agent shall have the same rights and powers
hereunder as any Bank and may exercise the same as though it were not the Agent,
and the terms "Bank" and "Banks" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. The Agent may accept deposits
from, lend money to and generally engage in any kind of banking or trust
business with the Borrower as if it were not the Agent.
10.11 Independent Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank and based on
the financial statements referred to in Section 7.4 and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Transaction Documents. Each
Bank also acknowledges that it will, independently and without reliance upon the
Agent or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Transaction
Documents.
10.12 Resignation of Agent. Subject to the appointment of a successor
Agent, the Agent may resign as Agent for the Banks under this Agreement and the
other Transaction Documents at any time by thirty (30) days notice in writing to
the Banks. Such
resignation shall take effect upon appointment of such successor Agent. The
Required Banks shall have the right to appoint a successor Agent (and if no
Default or Event of Default then exists hereunder, such appointment shall be
with the consent of the Borrower, which consent shall not be unreasonably
withheld), and the successor Agent shall be entitled to all of the rights of,
and vested with the same powers as, the original Agent under this Agreement and
the other Transaction Documents. Resignation by the Agent shall not affect or
impair the rights of the Agent under Sections 10.5 and 10.9 hereof with respect
to all matters preceding such resignation. Any successor Agent must be a
national banking association or a bank chartered in any State of the United
States and having at least $200,000,000.00 in capital and surplus.
10.13 Removal of Agent. Subject to the appointment of a successor Agent,
the Banks (by a unanimous vote of all Banks other than the Bank then acting as
the Agent hereunder), may remove the Agent for the Banks under this Agreement
and the other Transaction Documents at any time by thirty (30) days' notice in
writing to the Agent. Such removal shall take effect upon appointment of such
successor Agent. The Required Banks shall have the right to appoint a successor
Agent who shall be entitled to all of the rights of, and vested with the same
powers as, the original Agent under this Agreement and the other Transaction
Documents. If no Default or Event of Xxxxxxx then exists hereunder, then the
decision to remove the Agent and the subsequent appointment of a successor Agent
shall both be made only with the consent of the Borrower (which consent will not
be unreasonably withheld). The removal of the Agent shall not affect or impair
the rights of the Agent under Sections 10.5 and 10.9 hereof with respect to all
matters preceding such removal. Any successor Agent must be a national banking
association or a bank chartered in any State of the United States and having at
least $200,000,000.00 in capital and surplus.
10.14 Duration of Agency. The agency established by Section 10.1 hereof
shall continue, and Sections 10.1 through and including this Section 10.14 shall
remain in full force and effect, until all of the Borrowers' Obligations shall
have been paid in full and the Banks' commitments to make Loans, issue Letters
of Credit and/or extend credit to or for the benefit of the Borrower shall have
terminated or expired.
SECTION 11. GENERAL.
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11.1 No Waiver. No failure or delay by the Agent or any of the Banks in
exercising any right, remedy, power or privilege hereunder or under any other
Transaction Document shall operate as a waiver thereof; nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The remedies provided
herein and in the other Transaction Documents are cumulative and not exclusive
of any remedies provided by law. Nothing herein contained shall in any way
affect the right of any of the Banks to exercise any statutory or common law
right of banker's lien or setoff.
11.2 Right of Setoff. Upon the occurrence and during the continuance of
any Event of Default, each of the Banks is hereby authorized at any time and
from time to time, without notice to Borrower (any such notice being expressly
waived by Borrower) and to the fullest extent permitted by law, to setoff and
apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by
such Bank(s) and any and all other indebtedness at any time owing by such
Bank(s) to or for the credit or account of Borrower against any and all of
Borrower's Obligations irrespective of whether or not such Bank(s) shall have
made any demand hereunder or under any of the other Transaction Documents and
although such obligations may be contingent or unmatured. Each of the Banks
agrees to promptly notify Borrower after any such setoff and application made by
such Bank(s), provided, however, that the failure to give such notice shall not
affect the validity of such setoff and application. The rights of the Banks
under this Section 11.2 are in addition to any other rights and remedies
(including, without limitation, other rights of setoff) which the Banks may
have. Nothing contained in this Agreement or any other Transaction Document
shall impair the right of any of the Banks to exercise any right of setoff or
counterclaim it may have against Borrower and to apply the amount subject to
such exercise to the payment of indebtedness of Borrower unrelated to this
Agreement or the other Transaction Documents.
11.3 Cost and Expenses. Xxxxxxxx agrees, whether or not any Loan is made
hereunder or any Letter of Credit is issued hereunder, to pay the Agent upon
demand (i) all out-of-pocket costs and expenses and all reasonable attorneys'
fees of the Agent in connection with the preparation, documentation,
negotiation, execution, amendment, modification, extension and/or renewal of
this Agreement, the Notes, the Letter of Credit Application(s) and the other
Transaction Documents, (ii) all out-of-pocket costs and expenses and all
reasonable attorneys' fees of the Agent in connection with the preparation of
any waiver or consent hereunder or under any other Transaction Documents, (iii)
if an Event of Default occurs, all out-of-pocket costs and expenses and all
reasonable attorneys' fees incurred by the Agent and each of the Banks in
connection with such Event of Default and collection and other enforcement
proceedings resulting therefrom, (iv) all out-of-pocket costs and expenses and
all reasonable attorneys' fees incurred by the Agent in connection with the
enforcement of any rights and/or remedies of the Agent or any of the Banks to
collect any of the Borrower's Obligations, and (v) all other reasonable
attorneys' fees and out-of-pocket costs and expenses incurred by the Agent
relating to or arising out of or in connection with this Agreement or any of the
other Transaction Documents. Xxxxxxxx further agrees to pay or reimburse the
Agent and each of the Banks for any stamp or other taxes which may be payable
with respect to the execution, delivery, recording and/or filing of this
Agreement, the Notes, the Letter of Credit Application(s) or any of the other
Transaction Documents. All of the obligations of Borrower under this Section
11.3 shall survive the satisfaction and payment of Xxxxxxxx's Obligations and
the termination of this Agreement.
11.4 Environmental Indemnity. Borrower hereby agrees to indemnify the Agent
and each of the Banks and hold the Agent and each of the Banks and any holder(s)
of the Notes, and the officers, directors, employees, agents and affiliates of
the Agent, each of the Banks and such holder(s) (collectively, the
"Indemnitees") harmless from and against any and all losses, liabilities,
damages, injuries, costs, expenses and claims of any and every kind whatsoever
(including, without limitation, reasonable court costs and attorneys' fees and
expenses) which at any time or from time to time may be paid, incurred or
suffered by the Indemnitees, with respect to or as a direct or indirect result
of
the violation by Borrower or any Subsidiary of any Environmental Laws; or with
respect to, or as a direct or indirect result of the presence on or under, or
the escape, seepage, leakage, spillage, discharge, emission or Release from,
properties owned or operated by Borrower and/or any Subsidiary of any Hazardous
Substances or any other hazardous or toxic waste, substance or constituent or
other substance (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under the
Environmental Laws); and the provisions of and undertakings and indemnification
set out in this Section 11.4 shall survive the satisfaction and payment of
Borrower's Obligations and the termination of this Agreement; provided that
Borrower shall have no obligation to an Indemnitee hereunder with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of that Indemnitee.
11.5 General Indemnity. In addition to the payment of expenses pursuant to
Section 11.3, whether or not the transactions contemplated hereby shall be
consummated, Borrower hereby agrees to indemnify, pay and hold Indemnitees
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without limitation,
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitees shall be designated a
party thereto), that may be imposed on, incurred by or asserted against the
Indemnitees, in any manner relating to or arising out of this Agreement, any of
the other Transaction Documents or any other agreement, document or instrument
executed and delivered by Borrower or any other Obligor in connection herewith
or therewith, the statements contained in any commitment letters delivered by
the Agent or any of the Banks, the agreement of any of the Banks to make the
Loans hereunder, the agreement of Xxxxx to issue the Letters of Credit hereunder
or the use or intended use of the proceeds of any Loan hereunder (collectively,
the "Indemnified Liabilities"); provided that Borrower shall have no obligation
to an Indemnitee hereunder with respect to indemnified liabilities arising from
the gross negligence or willful misconduct of that Xxxxxxxxxx. To the extent
that the undertaking to indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, Borrower shall contribute the maximum portion that it is
permitted to pay and satisfy under applicable law to the payment and
satisfaction of all indemnified liabilities incurred by the Indemnitees or any
of them. The provisions of the undertakings and indemnification set out in this
Section 11.5 shall survive satisfaction and payment of Xxxxxxxx's Obligations
and the termination of this Agreement. No provision contained in this Section
11.5 shall affect any rights the Borrower may have against any Bank which
defaults under this Agreement or is intended to indemnify any such Agent or Bank
which defaults under this Agreement (but only such Agent or Bank that defaults
under this Agreement) for any such Indemnified Liabilities arising from such
defaulting Bank's action.
11.6 Authority to Act. The Agent shall be entitled to act on any notices
and instructions (telephonic or written) believed by the Agent in good faith to
have been sent or delivered by any person identifying himself or herself as Xxxx
Xxxx XXX, Xxxx X. Xxxxx XX or Xxxxx X. Xxxxxx (or any other person from time to
time authorized to act on behalf of
Borrower pursuant to a resolution adopted by the Board of Directors of Borrower
and certified by the Secretary of Xxxxxxxx and delivered to the Agent),
regardless of whether such notice or instruction was in fact delivered by such
person, and Xxxxxxxx hereby agrees to indemnify the Agent and hold the Agent
harmless from and against any and all losses and expenses, if any, ensuing from
any such action.
11.7 Notices. Any notice, request, demand, consent, confirmation or other
communication hereunder shall be in writing and delivered in person or sent by
telecopy or registered or certified mail, return receipt requested and postage
prepaid, to the applicable party at its address or telecopy number set forth on
the signature pages hereof, or at such other address or telecopy number as any
party hereto may designate as its address for communications hereunder by notice
so given. Such notices shall be deemed effective on the day on which delivered
or sent if delivered in person or sent by telecopy, or on the third (3rd)
Business Day after the day on which mailed, if sent by registered or certified
mail; provided, however, that notices to the Agent under Section 3 shall not be
effective until actually received by the Agent.
11.8 CONSENT TO JURISDICTION. BORROWER IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF ANY LOUISIANA STATE COURT OR ANY UNITED STATES OF
AMERICA COURT SITTING IN THE EASTERN DISTRICT OF LOUISIANA, AS THE AGENT MAY
ELECT, IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT. BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT TO SUCH SUIT, ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY OF SUCH COURTS. BORROWER IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH BORROWER MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT, AND BORROWER FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. BORROWER AUTHORIZES THE SERVICE OF PROCESS UPON BORROWER BY
REGISTERED MAIL SENT TO BORROWER AT ITS ADDRESS SET FORTH IN SECTION 11.7.
11.9 Sharing of Payments. The Banks agree among themselves that except as
otherwise expressly set forth herein, in the event that any of the Banks shall
directly or indirectly obtain any payment (whether voluntary, involuntary,
through the exercise of any right of setoff, banker's lien or counterclaim,
through the realization, collection, sale or liquidation of any collateral or
otherwise) on account of or in respect of any of the Loans or other Borrower's
Obligations in excess of its Pro Rata Share of all such payments, such Bank(s)
shall immediately purchase from the other Bank(s) participations in the Loans or
other Borrower's Obligations owed to such other Bank(s) in such amounts, and
make such other adjustments from time to time, as shall be equitable to the end
that the Banks share such payment ratably in accordance with their respective
Pro Rata Shares of the outstanding Loans and other Borrower's Obligations. The
Banks further agree among themselves that if any such excess payment to a Bank
shall be
rescinded or must otherwise be restored, the other Bank(s) which shall have
shared the benefit of such payment shall, by repurchase of participation
theretofore sold, or otherwise, return its share of that benefit to the Bank
whose payment shall have been rescinded or otherwise restored. Xxxxxxxx agrees,
to the fullest extent it may effectively do so under applicable law, that any
holder of a participation in any of the Borrower's Obligations, whether or not
acquired pursuant to the foregoing arrangements, may exercise rights of setoff,
banker's lien or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of Borrower in the amount of such participation. If under any
applicable bankruptcy, insolvency or other similar law any of the Banks receives
a secured claim in lieu of a setoff to which this Section 11.9 would apply, such
Bank(s) shall, to the extent practicable, exercise their rights in respect of
such secured claim in a manner consistent with the rights of the Bank(s)
entitled under this Section 11.9 to share in the benefits of any recovery of
such secured claim.
11.10 Governing Law. This Agreement, the Notes, the Letter of Credit
Application(s) and all of the other Transaction Documents shall be governed by
and construed in accordance with the internal laws of the State of Louisiana.
11.11 Amendments and Waivers. Any provision of this Agreement, the Notes,
the Letter of Credit Application(s) or any of the other Transaction Documents
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by Borrower and the Required Banks (and, if the rights or duties
of the Agent in its capacity as Agent are affected thereby, by the Agent);
provided that no such amendment or waiver shall, unless signed by all of the
Banks, (i) increase the Commitment of any Bank, (ii) reduce the principal amount
of or rate of interest on any Loan or any fees hereunder, (iii) postpone the
date fixed for any payment of principal of or interest on any Loan or any fees
hereunder, (iv) change the Pro Rata Share of the Commitments or of the aggregate
principal amount of Loans or Letters of Credit of any Bank, (v) release any
collateral for Borrower's Obligations, or (vi) change the number of Banks which
shall be required for the Banks or any of them to take any action or obligations
under this Section or any other provision of this Agreement including this
Section 11.11.
11.12 References: Headings for Convenience. Unless otherwise specified
herein, all references herein to Section numbers refer to Section numbers of
this Agreement, all references herein to Exhibits A, B, C, D, E, F. G and H
refer to annexed Exhibits A, B, C, D, E, F, G and H which are hereby
incorporated herein by reference and all references herein to Schedules 2.1(a),
7.8, 7.10, 7.11, 7.12, 7.16, and 7.17 refer to annexed Schedules 2.1(a), 7.8,
7.10, 7.11, 7.12, 7.16, and 7.17 which are hereby incorporated herein by
reference. The Section headings are furnished for the convenience of the
parties and are not to be considered in the construction or interpretation of
this Agreement.
11.13 Subsidiary or Property Reference. Each covenant, representation and
warranty which is stated to be applicable to any Subsidiary or any Property of
Borrower or any Subsidiary shall be construed to apply to any Subsidiary or any
Property which Borrower or any Subsidiary acquired pursuant to the Consolidation
Transactions.
11.14 Successors and Assigns, Participations.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that Borrower may not assign or otherwise transfer any of its rights or
delegate any of its obligations under this Agreement. Any Bank may sell
participations in its Notes and its rights under this Agreement in whole or in
part to any commercial bank organized under the laws of the United States or any
state thereof that is a member of both the Federal Deposit Insurance Corporation
and the Federal Reserve System without the consent of Borrower or the Agent so
long as each agreement pursuant to which any such participation is granted
provides that no such participant shall have any rights under this Agreement or
any other Transaction Document (the participants' rights against the Bank
granting its participation to be those set forth in the Participation Agreement
between the participant and such Bank), and such selling Bank shall retain the
sole right to approve or disapprove any amendment, modification or waiver of any
provision of this Agreement or any of the other Transaction Documents. Each
such participant shall be entitled to the benefits of the yield protection
provisions hereof to the extent such Bank would have been so entitled had no
such participation been sold.
(b) Any Bank which, in accordance with Section 11.14(a), grants a
participation in any of its rights under this Agreement or its Notes shall give
prompt notice thereof to the Agent and Borrower.
(c) Unless otherwise agreed to by Xxxxxxxx in writing, no Bank shall, as
between Borrower and that Bank, be relieved of any of its obligations under this
Agreement as a result of such Bank's granting of a participation in all or any
part of such Bank's Notes or all or any part of such Bank's rights under this
Agreement.
11.15 Assignment Agreements. Each Bank may, from time to time, with the
consent of the Borrower and Agent (which will not in any instance be
unreasonably withheld), sell or assign a pro rata part of all of the
indebtedness evidenced by the Notes then owed by it together with an equivalent
proportion of its obligation to make Loans hereunder and the credit risk
incidental to the Letters of Credit pursuant to an Assignment Agreement
substantially in the form of Exhibit H attached hereto, executed by the
assignor, the assignee and the Borrower, which agreements shall specify in each
instance the portion of the indebtedness evidenced by the Notes which is to be
assigned to each such assignee and the portion of the Commitments of the
assignor and the credit risk incidental to the Letters of Credit (which portions
shall be equivalent) to be assumed by it (the "Assignment Agreements"), provided
that the Borrower may in its sole discretion withhold its consent to any
assignment by a Bank of less than all of its Commitments if as a result thereof
the assignor will have Commitments hereunder of less than one half of its
assigned Commitments or the assignee will have Commitments hereunder of less
than $3,500,000.00 or, after giving effect thereto, there would be more than 10
Banks, further provided that nothing herein contained shall restrict, or be
deemed to require any consent as a condition to, or require payment of any fee
in connection with, any sale, discount or pledge by any Bank of any Note or
other obligation hereunder to a Federal reserve bank. Upon the execution of each
Assignment Agreement by the assignor, the assignee and the
Borrower and consent thereto by the Agent (i) such assignee shall thereupon
become a "Bank" for all purposes of this Agreement with a Commitment in the
amount set forth in such Assignment Agreement and with all the rights, powers
and obligations afforded a Bank hereunder, (ii) the assignor shall have no
further liability for funding the portion of its Commitments assumed by such
other Bank and (iii) the address for notices to such Bank shall be as specified
in the Assignment Agreement, and the Borrower shall execute and deliver Notes to
the assignee Bank in the amount of its Commitments and new Notes to the assignor
Bank in the amount of its Commitments after giving effect to the reduction
occasioned by such assignment, all such Notes to constitute "Notes" for all
purposes of this Agreement, and there shall be paid to the Agent, as a condition
to such assignment, an administration fee of $2,500 plus any out-of-pocket costs
and expenses incurred by it in effecting such assignment, such fee to be paid by
the assignor or the assignee as they may mutually agree, but under no
circumstances shall any portion of such fee be payable by or charged to the
Borrower.
11.16 Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns;
provided, however, that Borrower may not assign or delegate any of its rights or
obligations under this Agreement.
11.17 NO ORAL AGREEMENTS, ENTIRE AGREEMENT. ORAL AGREEMENTS OR COMMITMENTS
TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT,
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO
PROTECT XXXXXXXX, THE AGENT AND THE BANKS FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENT REACHED BY BORROWER, THE AGENT AND THE BANKS
COVERING SUCH MATTERS ARE CONTAINED IN THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS, WHICH AGREEMENT AND OTHER TRANSACTION DOCUMENTS ARE A COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT AMONG BORROWER, THE AGENT AND THE BANKS,
EXCEPT AS BORROWER, THE AGENT AND THE BANKS MAY LATER AGREE IN WRITING TO MODIFY
THEM. THIS AGREEMENT EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE
PARTIES HERETO AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR
WRITTEN) RELATING TO THE SUBJECT MATTER HEREOF.
11.18 Severability. In the event any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
11.19 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.20 Resurrection of Xxxxxxxx's Obligations. To the extent that any of
the Banks receives any payment on account of any of Borrower's Obligations, and
any such payment(s) or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside, subordinated and/or required to be
repaid to a trustee, receiver or any other Person under any bankruptcy act,
state or federal law, common law or equitable cause, then, to the extent of such
payment(s) received, Xxxxxxxx's Obligations or part thereof intended to be
satisfied and any and all Liens upon or pertaining to any Property or assets of
Borrower and theretofore created and/or existing in favor of such Bank(s) as
security for the payment of such Borrower's Obligations shall be revived and
continue in full force and effect, as if such payment(s) had not been received
by such Bank(s) and applied on account of Borrower's Obligations.
11.21 Independence of Covenants. All of the covenants contained in this
Agreement and the other Transaction Documents shall be given independent effect
so that if a particular action, event or condition is prohibited by any one of
such covenants, the fact that it would be permitted by an exception to, or
otherwise be in compliance within the provisions of, another covenant shall not
avoid the occurrence of a Default or Event of Default if such action is taken,
such event occurs or such condition exists.
11.22 Confidentiality. The Agent and each of the Banks shall keep
confidential any information delivered, made available or otherwise conveyed by
the Borrower, any of its Subsidiaries or Trinity in connection with this
Agreement and the transactions contemplated hereby; provided that, the
provisions of this Section 11.22 shall not be construed to prohibit Agent or
any Bank from disclosing any information to (i) Agent or any Bank (or any
attorneys, agents or consultants of Agent or any Bank), (ii) any participant or
assignee or prospective participant or assignee of any Bank (so long as such
participant or assignee or prospective participant or assignee agrees to be
bound by the provisions of this Section 11.22), or (iii) any Person as required
by law, regulation or court order.
11.23 Certain Indemnification Procedures. Notwithstanding any provision to
the contrary contained in this Agreement, in the event Borrower is obligated to
defend the Agent or any of the Banks under the terms of this Agreement, Borrower
shall be entitled, at is option, to assume the defense of such action on behalf
of such indemnified party or parties with counsel which is selected by Borrower
and reasonably acceptable to such indemnified parties. In no event shall
Borrower: (i) be required to employ more than one (1) firm of attorneys in
defense of any matter where Xxxxxxxx is required to defend the Agent or any of
the Banks, but nothing contained herein shall prevent Borrower from employing
multiple firms of attorneys, at its option; or (ii) be liable for any legal fees
and expenses in excess of the reasonable fees and expenses of the one (1) firm
of attorneys whether or not selected by Borrower pursuant to clause (i) of this
Section 11.23 and the fees and expenses of any additional firms employed by
Borrower pursuant to said clause (i) (provided that Borrower shall not have the
right to challenge the reasonableness of the fees of any firm of attorneys
selected by Xxxxxxxx).
11.24. Conflicting Provisions. In the event any of the terms and
provisions of this Agreement conflict with any terms and provisions contained in
any other Transaction Document, the terms and provisions of this Agreement shall
govern.
TO END OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, Xxxxxxxx, the Agent and the Banks have executed this
Amended and Restated Revolving Credit Agreement effective as of the 31st day of
December, 1996.
HALTER MARINE GROUP, INC.
BY: _________________________
ITS: _________________________
00000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: WHITNEY NATIONAL BANK
$35,000,000.00
BY: _________________________
ITS: _________________________
000 Xx. Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: FIRST NATIONAL BANK OF
$10,000,000.00 COMMERCE
BY: _________________________
ITS: _________________________
Energy Services Dept., 2nd Fl.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: HIBERNIA NATIONAL BANK
$20,000,000.00
BY: _________________________
ITS: _________________________
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: NBD BANK
$15,000,000.00
BY: _________________________
ITS: _________________________
Corporate Credit, 2nd Fl.
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: THE BANK OF NOVA SCOTIA
$15,000,000.00
BY: _________________________
ITS: _________________________
000 Xxxxxxxxx Xxxxxx XX
Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: BANK ONE, LOUISIANA, N.A.
$15,000,000.00
BY: _________________________
ITS: _________________________
000 Xx. Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Telecopy number:
Revolving Credit Commitment: THE BANK OF TOKYO -
$15,000,000.00 MITSUBISHI, LTD.
BY: _________________________
ITS: _________________________
2001 Xxxx Avenue, LB118
0000 Xxxxxxx Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy number: (000) 000-0000
Revolving Credit Commitment: THE SUMITOMO BANK LIMITED
$10,000,000.00
BY: _________________________
ITS: _________________________
BY: _________________________
ITS: _________________________
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy number: (000) 000-0000
